Contact: Charles Davis, SPJ Freedom of Information Committee co-chair, at 573/882-5736 or daviscn@missouri.edu

A federal judge in Texas would rather the public not know the details of legal proceedings involving former Enron finance chief Andrew Fastow and two other former senior executives of the infamous energy firm.

U.S. District Judge Kenneth Hoyt has three times closed hearings in the criminal case against Fastow and the other former Enron executives. On Aug. 26 he refused to unseal the transcript of a July 28 hearing he also held in secret.

SPJ members, particularly state sunshine chairs, need to remind Judge Hoyt that absent a compelling interest, such proceedings should be presumptively open to the public.

Judge Hoyt, who said he might continue to close hearings if he thinks it necessary, justified the secrecy by citing an interest far less than compelling.

“There are matters that do not need to be discussed in public in ways that embarrasses or humiliates the government or the defense and particularly the court,” he said.

The First Amendment right of access to criminal proceedings -- supported by more than 20 years of legal precedent -- has never before swung on the risk of embarrassment or humiliation, least of all of the courts.

“Embarrassment is not an exception to the First Amendment,” Houston Chronicle Editor Jeff Cohen said. “With all due respect to the judge, we will continue to press him to open these hearings until he provides a better explanation.”

Hoyt denied a Chronicle request to be allowed to attend the two Tuesday hearings. The Chronicle’s reporter and lawyer were told to leave the hallway outside the second hearing by court security officers, who said Hoyt ordered them to do so. The officers said the two would be detained if they did not leave.

The judge made clear that the defendants’ lawyers had not asked that the hearings be closed but that he had closed them himself. He said judges commonly hold sessions in chambers and that his goal is to ensure a fair trial for both sides.

“The judge says these conversations are ‘shop talk’ of no interest to the public,” says Robert Leger, president of the Society of Professional Journalists and editorial page editor at the Springfield (Mo.) News-Leader. “But judges should not decide what the public needs or wants to know. That’s for the public to decide, and it can only make that decision if the courts are open. By locking his courtroom doors, Judge Hoyt has done more to embarrass the judiciary than anything said behind those doors possibly could.”

In other Enron cases and in most criminal cases such questions are routinely asked in open court.

The U.S. Supreme Court has held that criminal trials are presumptively open to the public. The Court reached this conclusion after examining the history of American criminal trials and finding that openness was “an indispensable attribute of an Anglo-American trial” because it “gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality.” (Richmond Newspapers v. Virginia, 448 U.S. at 569, 578.)

Because the public now receives much of its news about the judicial system from the news media, allowing reporters access to the proceedings would be in keeping with the ideals described the Court. Access to judicial proceedings has been granted First Amendment protection in large part to provide public accountability of the judiciary.

The public interest in Enron-related litigation is hard to overstate. Investors, former employees and the general public all have a keen interest in seeing that justice is served in the biggest corporate scandal in modern history. Fastow alone faces nearly 100 counts of fraud, insider trading and falsification of accounting records.

“The First Amendment right of access to criminal courtrooms exists precisely because of cases like these,” said Charles N. Davis, SPJ Freedom of Information co-chair and director of the Freedom of Information Center at the University of Missouri School of Journalism. “The United States Supreme Court said in 1980 that ‘where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted ... People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.’”


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SPJ FOI Alert Vol. 8; No. 10

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