Mimesis Law
1 June 2020

Georgia Court Of Appeals Issues Harsh Reminder On Public Trials

November 4, 2016 (Fault Lines) – What do the Spanish Inquisition, the English Court of Star Chamber, Las Vegas, and “nonsense on stilts” have in common? All of these terms were invoked yesterday by the Court of Appeals of Georgia in an opinion reinforcing the importance of public trials.

There is very little question Randy Jackson was a bad man. He was accused of molesting his stepdaughter and pretty much admitted it. It seems he conceded almost all of the evidence against him.

The victim in the case had an understandably difficult task in front of her as trial approached. The witness stand in a jury trial is an intimidating place to be under any circumstances. Testifying against your parent about graphic sexual acts is a particularly daunting task, especially for a teenager.

Daunting as that task may be, it is necessary. There is a reason the Court of Appeals began its opinion with references to the most sinister aspect of the Spanish Inquisition and the Star Chamber: secret trials.

We don’t have secret trials, or closed courtrooms, here in modern America. The reason is simple. Think about how you act in the comfort of your living room as opposed to how you act in public. The only people who claim to behave the same in both places are liars.

The idea of making a teenager testify against her stepfather, in a public trial, about horrible acts, may turn your stomach. But regardless of how uncomfortable it is, that public trial is an integral part of the criminal justice system.

Of course, most people think the only “integral part” of the justice system is to make sure the accused becomes the convicted as quickly and efficiently as possible. Sadly, appellate courts often fall in line with that thinking, presenting nothing more than a procedural speed bump in the fast lane to a cold prison cell. Somewhere between “overwhelming evidence” and “harmless error,” the Bill of Rights becomes the Bill of Suggested Rights as Long as They Don’t Get in the Way of a Staggering Prison Sentence.

So it is pleasantly surprising the Court of Appeals of Georgia took an active role in jerking the State back down to Earth and protecting the sanctity of a criminal courtroom, regardless of who benefits.

At Jackson’s trial, the State moved to close the courtroom during Jackson’s victim’s testimony. The trial court said sure, this is a trial and the State gets what the State wants granted the motion. The appellate opinion reflects that there was very little discussion before the court granted the motion.

The State is probably a little butthurt at suffering a rare loss in an appellate courtroom. One would hope its appellate arguments were the product of institutional arrogance, as opposed to sheer incompetence. Or blatant dishonesty.

The State argued on appeal it had not moved to close the courtroom. It claimed it just wanted to remove the defendant’s family. It must have forgotten there is a record of exactly what everybody said in the courtroom:

Your Honor, actually, the motion was to close the courtroom to any personnel who is not necessary to the trial, specifically, the family members, but also to anyone else who is not necessary during this.

In other words, they wanted everybody out.

Some courts might be more forgiving, referring to a misstatement of the record or some other harmless sounding description of what amounts to typical government bullshit. Not the Georgia Court of Appeals, who apparently grew a pair overnight. The Court called the argument what it was: nonsense.

With thoughts of Vegas in their heads, the appellate judges noted the State then proceeded to “double down” in their appellate argument. The State argued press were courtroom personnel, so the press wasn’t excluded from the courtroom. That might give legs to the argument this trial was actually public. Except for the fact there was no evidence any press was present at this trial. So those legs were kind of weak. Or, to quote the Court of Appeals, “nonsense on stilts.”

Closing a courtroom during a trial is a rare occurrence, not to be taken lightly. When working correctly, the courts treat everyone the same. The most innocent and the guiltiest get the same treatment. The fact that Jackson was most likely guilty is of no concern. He gets the same trial everyone else gets.

That probably pisses you off. And it always will. Right up to the moment you are standing in the twilight zone of a criminal courtroom wondering who the hell all these people are and how you are going to get out of there. For most people, rights only matter when they are personal. And when you need them, hope the rest of us were ignoring you when you were trying so hard to give them away on behalf of somebody else.

The Georgia court recognized that the United States Supreme Court has been very clear about how a courtroom gets closed during a criminal trial. Strong evidence is required that the closure is absolutely the only way to protect whatever right the State is trying to protect (Hint: it’s not one of yours). In this case, nobody paid much attention to why the courtroom needed to be closed. They just closed it.

The Georgia Court of Appeals said no. But it deserves credit for not just saying it, but meaning it. It could have easily remanded the case with a wink and a nod. “Hey just have a new hearing, and promise you won’t do it again.” All would have been forgiven. But instead, it reversed the defendant’s conviction. Now there has to be a new trial. A public one.

This is serious punishment, because the State now has to explain it. Its overzealousness means the whole trial has to be redone. That doesn’t sound very protective of the victim. The problem with always getting your way means you never suffer consequences.

The only way to insure the justice system is actually doing its job is the scrutiny of the society it is supposed to protect. Closed courtrooms means nobody is watching. Except now at least one State’s prosecutors know someone is watching.

11 Comments on this post.

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  • DawnDay
    4 November 2016 at 11:09 am - Reply

    You’re spot on with your “twilight zone” reference. The episode I’m thinking of is Monsters on Maple Street. In that episode, the aliens are showing how they manipulate the public, with predictable results. Here, it is the Judges who are the aliens. Manipulating laws and rules at their whim while a girl is the one who is injured, again, not unlike the victims in the TZ episode. The appellate court seems to also stand like a parent giving a spanking to the recalcitrant State while admonishing, “This hurts me more than you” and “I’m doing this for your own good.” It seems that a victim of rape can never truly have justice in the courts. There ought to be a better way.

    • Josh
      4 November 2016 at 8:43 pm - Reply

      Oh, so its these judges that are in the wrong? Since its a rape case, screw the Constitution?

      You need to read and understand what this post says, or refrain from comment. The point is these judges could have done the easy thing and figured out how to discard fundamental rights and put another crack in the foundation of our justice system for convenience or sympathy or whatever other touchy-feely nonsense people seem to think has a place in our world.

      There is a better way. Follow the damn rules. Follow the Constitution. Our courts work just fine when idiots stop tinkering with them.

      • DawnDay
        10 November 2016 at 2:18 pm - Reply

        The appellate court acknowledged that the state did satisfy the first prong of “closure”, namely that there was a “compelling State interest” to protect via closure (protecting minor victims of sex crimes from further trauma). The judge erred in 1) not making specific findings, and 2) not considering alternative ways to protect that interest, other than by closure. I think the appellate court should have remanded to the lower court with instructions to enter specific findings and alternatives the judge considered and rejected (albeit these did not make it into the record, nonetheless the judge likely gave thought to such things). Then let the appellate court review that reasoning and overturn if found insufficient.
        It appears the legislature agrees with me that there ought to be a better way when they passed a statute mandating automatic closure in such cases. Sadly, the new law did not pass constitutional muster and was invalidated. This did not, however, invalidate the fact that it is widely known and accepted as true that a minor testifying in open court about sexual victimization is itself traumatizing. A cost born by the victim alone, in addition to the cost of the original victimization. Now, obviously, constitutional protections prevent an even greater cost from being imposed upon all citizens. Therefore, it is up to legal professionals such as yourself to keep at it, keep working until you find a better way to protect victims within the confines of the constitution.
        I am surprised to see you say that “Our courts work just fine when idiots stop tinkering with them.” Um, really? Seems strange coming from a blog that, usually very humorously, highlights the cases in which the courts did not “work just fine.”

        • Josh
          11 November 2016 at 1:03 am - Reply

          If you get yourself appointed to the Court of Appeals of Georgia, you will be free to disregard the Constitution as long as you can. The reason this opinion was worthy of a post was that it refused to go along to get along. Rules were broken, consequences were instituted. A remand would have endorsed the feelings of a victim over the hard cold idea that rules are as they are and should remain so.

          So the legislature agreed with you that the Constitution should be disregarded? When you say the law didn’t “pass constitutional muster” that’s not sad. That’s constitutional. As opposed to unconstitutional.

          I am not working to find a better way to protect victims. That wasn’t the point of the Constitution and hopefully never will be. It should protect the accused. Before you tell me what this blog highlights, go back and read it. All of it.

          Our justice system is hard to swallow because it is so good, not because it is so bad. We have a perfect system. But it is run by imperfect humans and will always be subject to the whim of those imperfect humans. But on this day, in this court, it was what it was meant to be. That’s to be celebrated. Regardless of what pain it may cause to those it was never meant to protect.

  • Froggy64
    4 November 2016 at 1:44 pm - Reply

    And there was I thinking it was because nobody expected them.

  • Brian
    4 November 2016 at 2:15 pm - Reply

    Fortunately court opinions can’t be copyrighted, because I’m going to have to appropriate “nonsense on stilts”. That is far too fun a phrase.

    • Richard G. Kopf
      4 November 2016 at 4:04 pm - Reply


      Sorry but you are too late. Indeed, Jeremy Bentham who is long dead (but stuffed and viewable at University College London) first used the phrase to describe bullshit otherwise known as natural law and natural rights. Bentham truly had a sense of humor.

      All the best.


      • Andrew Fleischman
        4 November 2016 at 6:24 pm - Reply

        The man who authored the opinion, Nels Peterson, is new to the Court of Appeals. But he has already authored some of the best opinions in the history of the court. He’s a true pleasure to read. Here’s a recent favorite footnote:

        “The State devotes the first two substantive pages of its brief to an argument that we should disregard Malphurs’ brief because its page margins do not comply with Rule 24(c) of our court and his record citations are improperly formatted. The State is factually correct in its criticism, but fails to notice that its brief, too, fails to comply with our rules. The font of the State’s footnotes is far smaller than the 10 characters per inch required by our Rule 1(c). Counsel for both parties are reminded of their obligation to comply with our rules, and we will exercise our discretion to address the arguments presented. See Jones v. State, 241 Ga.App. 768, 769(1) (527 S.E.2d 611) (2000). See also Matthew 7:1–5.”

        • Josh
          4 November 2016 at 8:46 pm - Reply

          Well in the State’s defense, 10 characters per inch seems rather draconian for a footnote…

        • Ernie Menard
          4 November 2016 at 8:48 pm - Reply

          Just a guess, Matthew 7:1-5 is the statement about the splinter in someone else’s eye and the log in your own.

      • anon
        7 November 2016 at 11:04 am - Reply