published Monday, August 10th, 2009

Secret hearings taint courts

Judges are advised in general ethics rules to avoid even the appearance of impropriety. There's abundant reason for that. Justice is supposed to be blind, in the sense that it treats all equally: it neither discriminates against defendants, nor grants favors or special dispensation for a select few. Sessions Court Judge Ron Durby and Criminal Court Clerk Gwen Tidwell would not have become subject to media scrutiny last week if Judge Durby had observed that guideline.

What got them in the news was not so much the outcome of a case, but the method by which it was handled. In short, Judge Durby held a private session in his office to hear misdemeanor charges against Mrs. Tidwell's son and two other defendants. He then officially dismissed the charges and ordered them expunged from the court's records.

On its face, that looks like a special favor done for Lucas Tidwell for his mother, the elected county official who oversees the substantial courthouse staff that manages the flow of cases and records for hearings and trials for Criminal and Sessions courts. Judge Durby, like all other judges at the courthouse, customarily hears and disposes of cases from the bench in open court.

In this instance, the case was rather minor. Mr. Tidwell, Victor Serodino and Paul Stagmaier were arrested by a state park ranger for illegally riding all-terrain vehicles in a restricted area of a state forest. The ranger issued the citations after he stopped them and asked their names, and they all said their name was Jerry Smith.

Judge Durby said there was nothing irregular about the case. He said Mrs. Tidwell never contacted him regarding the case nor sought any favors. He said he simply handled the case in private because the district attorney's office had agreed to dismiss the charges, and he wanted to avoid making a spectacle of the defendants' proceeding. He said he had handled other similar cases the same way.

In fact, it is rare for judges to dispose of cases behind closed doors, and it's an exceedingly rare case that merits consideration for a private hearing. Secret handling may be allowed at a judge's discretion, but it clearly conflicts with the public's expectation that justice is best served when all cases are open to the public and the details are made publicly available.

Private proceedings defeat the public's right to know what transpires in their courts of law, the spine of a democracy. They subvert open records. And they undermine public confidence in fair and impartial justice by feeding the notion that special favors may be given a select and favored few. Judges should instinctively strive to conduct all their judicial proceedings in open court, where public records are taken of every decision and are subject to public scrutiny.

Judge Durby's handling of the case raised questions not just about how he decided to gather the defendants and privately dispose of the case, but also how it came to him in the first place.

The assignment of the case to his court should have been through the random computer program that the Sessions Court judges have established as standard procedure to prevent lawyers from "judge-shopping." That's the practice of some lawyers to try to get a case assigned to a particular judge whose friendships or views on certain issues are believed to work in favor of the lawyer or a case.

Though Judge Durby said the Tidwell case came to him through the standard computer-generated random-assignment system, some courthouse controversy arose over speculation that the case was possibly assigned irregularly to his docket by a jail clerk, was then advanced for a quick hearing, and ultimately was heard privately.

The five Sessions Courts agreed Thursday to clarify the priority of random assignment, and to make interference with that method subject to contempt of court proceedings.

That rule should be strictly enforced. More important, judges should observe a strenuous standard for private hearings. Certainly the Tidwell case would not seem to meet the sort of threshold criteria the public would expect to qualify for special, secret handling.

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