Aug. 13, 2001, 11:12AM
IT'S THE PEOPLE'S BUSINESS
Why should we care about reporter's problems hearing courtroom proceedings in the Andrea Yates case?By MARY FLOOD
Something terribly troublesome is happening in the Andrea Yates capital murder case.
I'm not talking about the unthinkable horror of the drowning of five children, the national fascination with this tragic Clear Lake mother's mental state or even the prosecutor's decision to seek the death penalty. I'm talking about the erosion of constitutional rights -- your rights, though you seldom exercise them -- at the Harris County courthouse.
You have the right to see what happens in your courts. If you are accused by the government of a crime, you have the right for others to see how the government treats you. The press has the right to watch and report on the courts. Yes, the media even have the right to tell every detail of wildly unimportant but entertaining cases like when some young bombshell bids for the bulk of her late, aged husband's estate.
In the far-more important Yates case, the respected and well-meaning state District Judge Belinda Hill is trying to please sheriffs deputies concerned about safety, prosecutors concerned about their case and meet her own concern about justice.
But in doing so she held one hearing June 22 that was unconstitutional because the press and public were physically excluded and couldn't hear what was said by the attorneys or Yates. Both the U.S. and Texas constitutions say the courts are open, period. That's because it's the people's business being conducted in the courts and because we want citizens to be able to keep an eye on their government. That how we keep it honest and fair.
Last Monday another problematic hearing was held in the Yates case. Reporters who happened into the unannounced event couldn't hear the proceeding and several said the judge wouldn't clarify what happened afterward. The lawyers involved couldn't explain because the judge has also imposed a gag order on all attorneys, law enforcement and witnesses. This gag order has allowed false reports about the case to linger and grow because those who know are prevented from correcting the errors.
Yates' lawyers unsuccessfully joined the Houston Chronicle in asking the 14th Court of Appeals to lift the gag order. The lawyers said they have "not only a right but, in fact, a duty to counteract what they perceive as false information concerning their client." A gag order like this is supposed to protect the rights of the accused. When the accused opposes the gag order, as in this case, such an order is even less logical and more worrisome.
There's no question we in the media are a giant annoyance and can create a circus atmosphere where solemnity should reign. No question we threaten the tenuous balance between the First Amendment right against government interference with the press and speech and the Sixth Amendment right of the criminally accused to get a fair trial.
But there's also no question that our court system is built to put up with that. And for good reason. The U.S. Supreme Court in 1980 made it very clear that courts conduct the people's business and should be open. And they meant "open" so those in attendance can reasonably hear the proceedings. The high court even encouraged the presence of media in these open courts and said the press' presence "historically has been thought to enhance the integrity and quality of what takes place."
Don't know if O.J. Simpson would agree with that one. But even the endless, over-the-top coverage of his case gave the nation a much better idea of what goes on in their courts. Was the nation discouraged by that? Probably. Is that a good thing? Unquestionably. Even a little knowledge about how government works is better than virtually none.
So why should you care that reporters covering a sensational case can't get every juicy detail or get into or hear every court hearing? Well, would you care if this were a case involving someone you loved? Or if it were a case involving someone who hurt someone you care for? What if it were a case where the government was overreaching its bounds? How would you even know there is such a case?
My fear about forgiving the occasional unconstitutional hearing and about gag orders in the Yates case, when her attorneys oppose it, are in part that they could become contagious. I've even heard that judges who handle civil cases, the ones about money disputes not about sending people to prison, worry about pretrial publicity in minor cases.
Judges should welcome concern about the judicial system, encourage understanding of what's happening there not fear that the public will find out what's going on.
And just what does it say about the citizenry of Harris County that there are judges worried that pretrial publicity will so taint the jury pool that Yates or someone else can't get a fair trial here? They know that if potential juror after potential juror actually says they've made up their mind, the case can simply be tried elsewhere. Changing the venue in high-publicity cases is fairly common.
But I suspect judges trying to curtail pretrial publicity really think that potential juror after potential juror will step forth and lie through their teeth. They'll claim they haven't been tainted when really they've read and watched every word about a case and hold some deep-seeded resentment or love for someone in a case. Thus, the cure for a lying jury pool is a closed or less open process? That's unacceptable in this country.
I want to be fair to Judge Hill. She had a good reputation as a prosecutor and has a good reputation as a judge. She's said she will explain procedure in the case to reporters when it's unclear. She clearly felt her hands were tied by the jail location and the sheriff's department's safety concerns about the June hearing she closed. And she said she thought she'd answered reporters' procedural questions about the unintelligible hearing last Monday.
But what I also want is for people in Harris County to be concerned when their courts are closed, even by good judges and for seemingly good reasons. I want the citizenry to be worried about gag orders, especially ones against the will of the accused. I want people to care even when they think we in the press are a mass of worthless rumor mongers. These are after all, your courts.
Flood, an attorney, is the Chronicle's legal and investigative reporter
Copyright 2001 Houston Chronicle