Iron curtain. This is my term for the curtain between the public and the inner workings of the justice system. I have also called this the “wall.”
I am not talking about the sanctioned part of the appellate process for discussion of the case by the appellate panel or supreme court. I am not saying we need to get inside those rooms.
In describing the iron curtain or the wall, I am describing the inability or extreme difficulty of the public to obtain information about the courts, to obtain information about their own case that is occurring behind the scenes, and to obtain information about administrative processes and decisions made in the courts.
I have been known to say that it is difficult within a case to prove judicial misconduct or ‘irregularity in the proceedings’ when the issue is a judge’s conduct, because traditionally the judge controls the information. (Or some other judge who identifies with judges controls the information.)
What other place in the system do we allow the people under scrutiny to control access to evidence of guilt? Isn’t it human nature for judges to block access to the very evidence a party needs to show they have committed misconduct? (Such as evidence that a judge should have recused because he owns stock in the defendant corporation, or that a judge had an ex parte communication in her chambers with one of the lawyers.) To get at this issue, we need to openly discuss the need for evidence and information, and the access that the parties and the public have to it.
The public is also entitled to access information about administrative decisions made by the courts.
It’s good for all of us to examine the role of judges as administrators (something the public never voted them to do, and something the Governor likely did not consider upon appointing them). It’s good for judges to hear input from others. Surely they don’t claim to have a stranglehold on all good ideas about how to dispense justice.
Why would we as a society insist that all legislative meetings (whever 3 or more are gathered) be public. But 20-50 judges can meet and decide how justice will be administered, and we can’t even know if it happening?
The Berlin wall was long ago dismantled.
In this democracy, it is time to start prying away those bricks that have become cemented into our justice system. Time to tear down the wall.