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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Opinion

Judging the courts

The Spokesman-Review

U.S. District Court Judge Edward Lodge is thinking about closing certain segments of confessed murderer Joseph Duncan’s sentencing hearings in Boise, and he invited input from the region’s media. Let’s hope he accepts the emphatic response he has received.

Sixteen news and open government organizations (including The Spokesman-Review) quickly filed a memorandum arguing that the public should be allowed to witness “all court proceedings in which evidence is presented to the jury” – the jury that will decide whether Duncan should be executed.

The document offered 17 pages of legal argumentation, but one uncomplicated principle stands at the center of this question, and it doesn’t take a law degree to appreciate it: Self-government is impossible without open government. That includes all three levels – local, state and federal – and all three branches – executive, legislative and judicial.

Lodge had honorable reasons for posing the question. Kidnap victim Shasta Groene, whose family members Duncan killed, may be a witness and have to talk about her grueling ordeal. To make matters worse, Duncan wants to act as his own attorney, meaning he could be questioning the girl. In addition, the jury may see a videotape Duncan made of Shasta’s deceased brother Dylan Groene, and Lodge is pondering whether to exclude the public for that.

Those scenarios raise understandable questions about sensitivity, but they do not outweigh the fundamental right of citizens in an open society to witness the performance of the government, which it is their democratic responsibility to monitor.

Closing court proceedings will do little if anything to mitigate the discomfort Shasta Groene or others may feel about the unpleasant material being presented. It won’t conceal Shasta’s and Dylan’s identities, which have been publicized since the time of the crimes, when they were missing and presumed kidnapped.

For citizens, their oversight role is most challenging in the case of the courts, especially the federal courts, where accountability must contend with the technicalities of the law, competing constitutional interests and the political isolation that comes with federal judges’ lifetime appointments.

In this case, the stakes are particularly high. Duncan could face the federal death penalty, a sentence that is both rare and extreme. Only three defendants have been executed under the federal capital punishment law since its application was expanded in 1988. Decisions of that solemnity, made in the name of the people, must not be made beyond the reach of the people’s evaluation.

Complex as the law may be, it is written by lawmakers, administered by executives and applied by courts – all on behalf of the people, who are the ultimate authorities in our system of government. The system falters when the people are prevented from seeing it at work.