As Tennessee Opens, Questions Remain About Public Access to Courts

Seal of the Tennessee Supreme Court in Nashville. (Photo courtesy of the Tennessee Supreme Court)

(CN) — As Tennessee state courts start to open up and hold in-person judicial proceedings, an analysis shows that few of the courts’ Covid-19 plans have any provisions describing how the public and press can observe.

The Tennessee Supreme Court said in an April 24 order that state courts could begin holding some in-person proceedings on nonemergency matters if they submitted plans describing the steps they would take to minimize the spread of the virus.

On Wednesday, the Tennessee Coalition for Open Government published its findings after reading through the plans state courts intend to use to conduct hearings.

Many of the plans limited the number of people in the courtroom to just the participants in the case, while the language of other plans barred spectators, said Deborah Fisher, executive director of TCOG. If courts offered streaming of court proceedings, it was not readily apparent on their websites.

“If they want to provide public access and media access and it’s just not in their plan, they need to actually put it in their plan so that people know what’s going on,” she said.

Of the 31 judicial districts in Tennessee, 26 had their Covid-19 plans posted to the website of the Administrative Office of the Courts.

Some of the plans described a backlog of cases, Fisher said, while others said Tennessee courts planned to offer hand sanitizer and deploy touchless thermometers – if they could procure the items.

Seven plans, TCOG found, had provisions allowing the press to observe proceedings. One, in Sumner County, specifically excluded the press from viewing proceedings in general sessions courts.

The organization began researching the issue after receiving calls from the public worried about court access. As Fisher talked to court reporters in Tennessee, she found many of them had been pulled away from the court beat to work on stories related to Covid-19.

Fisher said many of the plans that prevent the public from viewing proceedings in the courtroom are probably there to reduce the number of people in the courthouse, but many courts face the inability to turn to technology.

“I don’t think they’re trying to do anything secretly. I just don’t think they built too much infrastructure up yet to do anything, to make it transparent,” Fisher said.

Barbara Peck, the public information officer for the Tennessee Supreme Court, said while there is no estimate yet for when the judicial state of emergency will expire, the Tennessee courts have made an effort to allow media access. For instance, it livestreamed several court proceedings and let journalists sit in on Zoom calls.

So far, no journalist has complained to the Tennessee Administrative Office of the Courts that they were shut out from viewing court proceedings, Peck said.

“While we take great pride in the accessibility of courts in Tennessee, we cannot allow broad public access to courtrooms at this time because of the pandemic,” Peck wrote in an email. “There are more than 500 courtrooms in the state, all with varying technological capabilities, and we cannot mandate livestreaming of all proceedings at this time. There are courtrooms in the state that do not even have cellular data access and do not have the bandwidth, cameras, or personnel to livestream.”

Meanwhile, Josh Spickler, executive director of Just City, said his Memphis-based organization’s court watching program has not tried to view proceedings in the Shelby County criminal courts since late February.

The program, Spickler said, uses lay people and records their reaction to the court system as a way to develop a snapshot of the local justice system that will inform future judicial elections and bring about reform there.

He plans to write to the local district attorney and the chief judge asking to view the proceedings even while the courts operate under its Covid-19 plan.

“I can say that judges, certainly, prosecutors, certainly, deputies, courtroom security people behave differently when our court watchers are in the courtroom,” Spickler said. “You can see it if you’ve been in courtrooms as long as I have. It’s not about the facial expressions, it’s about the decisions they make and the things that they say that they would say very differently if we weren’t in there.”

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