When it comes to open government, we don’t get a lot of wins in South Carolina, so we need to celebrate them when they do come.
As The Post and Courier’s Avery Wilks reports, a high-profile one came on Monday, when S.C. Circuit Judge Clifton Newman denied a joint request from the defense and the prosecution to issue a breathtaking gag order in the double-murder case against the now-infamous Lowcountry attorney Alex Murdaugh.
In the first hearing in what is sure to be one of South Carolina’s most closely watched trials ever, the two sides had asked the judge not only to gag all parties but also to issue an extraordinary order that would have given the attorneys the power — without the judge’s involvement — to decide which if any court filings the public would be able to see.
Judge Newman’s order wasn’t precisely a surprise, since he had responded skeptically to the request during Mr. Murdaugh’s bond hearing last month. But it’s significant that when it came time to actually issue a ruling, he held firm and didn’t give in to the split-the-baby formulation where the lawyers get a little bit of what they want and the public gets a little bit of what we are promised by the state constitution.
It’s significant too that neither the news media nor any public interest groups had to get involved and argue for openness — that Judge Newman recognized his duties under our state constitution and under clear and constant S.C. Supreme Court precedents and rules.
Those precedents and rules make it clear, he wrote, that “the public is entitled to know how justice is being administered.”
The court has ruled, for instance, that judges can only restrict public access to court proceedings if they demonstrate that access would damage the defendant’s right to a fair trial and that there are “no reasonable alternatives to closure that would adequately protect the Defendant’s fair trial rights.”
But as Judge Newman noted, court rules already restrict what prosecutors, police and defense attorneys can say outside the courtroom. Combine that with the fact that prosecutor Creighton Waters concurred in defense attorney Dick Harpootlian’s request to muzzle the two sides, and it seems clear that it is completely within the power of those two sides to muzzle themselves.
Indeed, the main thing that would have been accomplished by the joint request was to seal “virtually all pre-trial filings absent court scrutiny,” which the judge correctly noted would “threaten access rights of the public and press which are constitutionally protected” and “likely constitute the improper closure of the courtroom.”
Clearly, the public’s open court guarantees are sometimes in conflict with defendants’ fair-trial guarantees, and when that happens, judges have to find the right balance. In this case, for instance, there likely will be some documents that Judge Newman agrees to hide temporarily from the public. But that’s a decision the judge needs to make on a case-by-case basis. His ruling means that he will.