Public, but not press, excluded from drug trial

VERMONT–In mid-April, a federal judge in Burlington excluded the public from the courtroom during a witness’s testimony in a criminal trial, but permitted members of the defendants’ families and the press to remain, provided the latter agreed not to sketch the witness. Dutch authorities had told the court that the life of the witness, who is the first person to be placed in the Dutch Witness Protection Program, would be endangered by testifying in open court.

The judge had the courtroom equipped with a video camera that would not show the witness and would simultaneously broadcast the trial to an adjacent room for members of the public who wished to see the trial.

Although he noted that Supreme Court precedent does not provide the press with greater access rights than the public, federal District Judge William Sessions stated that “as a matter of public policy” he was willing to grant limited access to members of the press because only three local reporters had covered the trial so far, none of whom posed a threat to the safety of the witness, Adriaan Karman. Sessions said he would reevaluate the closure order if other members of the press sought access, and later permitted another local journalist and a member of the Dutch press to attend.

The court cited several recent decisions from the U.S. Court of Appeals in Manhattan (2nd Cir.) that require federal judges to consider less restrictive alternatives to courtroom closure to protect a witness’s safety or cover.

At an April hearing, members of the press recommended that they be allowed to have up to three reporters in the courtroom as representatives of a media pool. Sessions rejected that idea, writing that pools are primarily used because of limited space rather than to safeguard witness safety. Sessions also expressed discomfort at picking and choosing which members of the media could attend and which could not.

The government moved to close the courtroom during Karman’s testimony. The defendants objected to the closure on Sixth Amendment grounds. Members of the press argued that closure would violate the public’s First Amendment right to attend criminal trials. The court agreed that a presumption of openness attaches to criminal trials, but also observed that the government has a strong interest in protecting the safety of informant-witnesses. The judge wrote that the government bears the burden of establishing a “nexus” between the witness’s testimony and any compromise to his safety.

The five defendants were on trial on drug conspiracy charges. (United States v. Greer; Media Counsel: Robert Hemley, Burlington)