Eight years ago, the editor of the Beaufort newspaper wrote about a spate of cases where judges had sealed records and closed courtrooms in South Carolina’s 14th Judicial Circuit, in apparent violation of a Supreme Court rule that limits what records can be sealed and the S.C. Constitution's guarantee of open courts.
In one case, a family court judge sealed the records in the divorce case of a S.C. House member without explanation other than saying both sides had agreed to it, despite a 2003 Supreme Court rule that requires judges to explain “with specificity the reasons” why the public interest “is best served by sealing the documents.” Another judge locked a reporter out of a hearing in the case even though neither side had even asked him to.
Meantime, a Circuit Court judge had sealed personnel files regarding paramedics accused of botching the treatment of a severely beaten man, along with a state agency's order involving a timeshare operator and the indictment — yes, an indictment — of a murder suspect.
That judge, by the way, was Carmen Mullen, the one who apparently signed the never-filed order that was supposed to give a too-small portion of a secret $4.3 million insurance settlement to the sons of the housekeeper who died in Alex Murdaugh's home in 2018.
It is against that background of hostility toward the public’s constitutional right to know what’s going on in our courts that we welcome the skepticism that another circuit judge expressed on Wednesday when the defense and prosecution joined for a breathtaking request for confidentiality in the murder case against Mr. Murdaugh.
Defense attorney Dick Harpootlian and prosecutor Creighton Waters insisted that all they wanted to do was prevent “extrajudicial comments” that risked, in Mr. Harpootlian’s words, “polluting the jury pool.” What the defense asked and the prosecution agreed to, however, was for the judge to issue a gag order that covered all evidence and to let the parties seal all their motions, subject to their own motions to unseal them.
Fortunately, Judge Clifton Newman was, as The Post and Courier’s Avery Wilks reports, “skeptical,” noting that he would “typically disfavor” gag orders and that a less sweeping approach to sealing records — where a party files a separate motion for each motion it wants sealed — is “the manner in which it’s typically been done.”
“I just want it clearly understood, it’s a public matter, it’s a public trial,” the judge said. “And certainly matters that need to be sealed can be sealed to preserve the rights of all parties to a fair and impartial trial, and the court understands that, but at the same time, I want it clear that we will not have any private motion hearings. Public matters will be public.”
We shouldn’t need to applaud such a pedestrian statement from a judge, since, again, we live in a state where our Constitution says clearly that “all courts shall be public.”
But given the preference for secrecy at all levels and in all branches of South Carolina’s government, and particularly given the disturbing insularity of the 14th Circuit, it’s both surprising and encouraging to hear a judge kick off what will surely become one of our state’s most notorious criminal trials with such a clear statement of openness. We look forward to watching him turn his words into action — and we encourage other judges across the state to take note.