Secrecy and star chambers are running rampant in Alabama's "public" courts, as rogue judges trample the law and tell the people, who own the courts, to butt out

Sheriff Mike Blakely (al.com)

 

In the first post ever published at this blog -- dated June 3, 2007, and titled "Is your honor really honorable?" -- we wrote about an Alabama judge who refused to apply simple, black-letter law, and as a result, royally cheated  parties (Mrs. Schnauzer and me) before him. In that original post we did not cite details about the case in question -- the point of the post was to set the stage for the general theme of the blog -- but we did dive into specifics in subsequent reports.

Here we are now, some 14 years later, and recent events indicate the problem only has gotten worse in Alabama -- and I have no doubt it is just as bad in many other states. The latest example of judicial chicanery in Alabama comes from the corruption trial of longtime Limestone County Sheriff Mike Blakely. 

As the Blakely trial was set to launch last week, Judge Pamela Baschab told members of the press and public that they would not be able to observe jury selection. After complaints from media outlets, Baschab changed course, and the trial became public. But why, in the first place, did she rule contrary to clear law that holds courts are public entities, and their business is not to be conducted in secret.

As banbalch.com noted, this is not the first time we've seen this issue crop up via Alabama courts in recent months. In fact, we wrote here at Legal Schnauzer about it as recently as March 29, 2021. Is the law so complicated that judges struggle to get it right? Not at all, as al.com reported in a piece about the Blakely trial:

Dennis Bailey, a lawyer for the Alabama Press Association, said a judge needs “incredibly good reasons” for closing a criminal trial to the public — particularly in a case involving an elected official accused of violating the public’s trust.

“Courts are supposed to be open,” Bailey said. “That’s what our constitution provides. I’m at a loss as to understand why you would conduct jury selection in secret in a case like this.”

Alabama law mandates that jury trials be open to the public. Bailey pointed to a 1992 state Supreme Court decision regarding public and press access to criminal court proceedings. The justices noted that jury selection has always been a public process “with exceptions only for good cause shown. . . .”

In their 1992 ruling, the Alabama Supreme Court justices, wrote about the importance of press access to court proceedings and the public’s right to examine whether unfairness, discrimination or incompetence are influencing court outcomes.

“Secrecy of judicial action can only breed ignorance and distrust of courts and suspicion concerning the competence and impartiality of judges,” the ruling says.

Improper court secrecy is not just a problem in Limestone County -- or in criminal cases. Ban Balch publisher K.B. Forbes -- under the headline "Lackeys: Alabama’s Unconstitutional and Secret Star Chambers" -- provides a summary of events in Jefferson County, in civil matters:

During the Newsome Conspiracy Case, we observed that Judge Carole Smitherman created a secretive “Star Chamber” where alleged criminal acts, perjury, and unsavory conduct were hidden from public view; and all hearings, pleadings, and oral arguments were held in secret with no public notice.

For 500 days, no one knew what was happening, except when appeals were filed and we learned about the counterfeit court order used to trample the due process of law, civil rights, and civil liberties of Burt Newsome. . . .

Finally, the Three Stooges (Alabama Power, Balch and Bingham, and Drummond Company) successfully sealed the entire $75 million civil lawsuit filed by ex-Drummond executive David Roberson in part due to scrutiny from media including BanBalch.com.

What are they hiding and who in heaven’s name is sitting in on these secretive hearings?

In Smitherman’s court it was her husband State Senator Rodger Smitherman, a non-party, who sat it on the hearings and received over $30,000 in questionable “contributions” from Balch-related allies and entities.

The Drummond case is so tightly sealed that our sources at the Jefferson County courthouse cannot obtain any information and believe an alleged miscarriage of justice could be occurring.

Here is more on the relevant law, from a March 30, 2021 post at Legal Schnauzer, on the sealing of the Drummond case in Jefferson County:

An Alabama judge cites a case styled Holland v. Eads, 614 So. 2d 1012 (Ala. Sup. Ct., 1993) as grounds for sealing the record in a $75-million lawsuit related to Drummond Company, the Balch Bingham law firm, and the North Birmingham Superfund bribery scandal. The citation, from Jefferson County Circuit Judge Tamara Harris Johnson, is ironic because the Holland opinion repeatedly states that American courts favor open court records -- available to the public and the press -- over secrecy.

So, is Johnson's ruling based on remotely solid legal footing? Not that we can find. Does that mean the judge has allowed herself to be intimidated by one of Alabama's "Big Mule" corporations, one with a lengthy record of dubious activity in South America -- and with likely motivation to keep the North Birmingham scandal from being reopened in the civil arena? Sadly, that's how it appears. 

How do American courts view the public's right to access court records. Holland states the case in powerful language, beginning with the highest court in the land:

The United States Supreme Court has recognized a common law right of public access to judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). "`It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.'" United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981), quoting Nixon, supra, 435 U.S. at 597, 98 S. Ct. at 1312. In fact, this right of the public to inspect and copy judicial records antedates the United States Constitution. Criden, supra.

You read that correctly: The public's right to inspect judicial records predates the U.S. Constitution. But an Alabama judge, just a few days ago, sealed the record in a case involving two of Alabama's most powerful and "Big Mulish" corporate and legal entities. Would it be reasonable for an Alabamian to assume our courts are tilted to favor the powerful and the wealthy (and the white) -- even when the judge in questions is a black female Democrat, with a history of making claims about standing up for the under-represented and oppressed in our society? It sure would, especially now that Johnson appears to be an unabashed corporatist, carrying Drummond's water.

What about the law on public court records in Alabama? Again, from Holland:

It has long been the rule of this State to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, this Court held that "[a]n inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any citizen."; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala.1987) (holding that "the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official's ability to perform his duties"); Excise Comm'n of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 657, 60 So. 812, 813 (1912). The public's right to inspect court records derives from the "universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power ... is not tolerable or justifiable." Jackson v. Mobley, 157 Ala. 408, 411-12, 47 So. 590, 592 (1908).

In addition to a common law presumption of permitting public inspection of judicial records, which has been recognized by the United States Supreme Court and by this Court, public access to court records is permitted by statute. Ala.Code 1975, § 36-12-40, grants the public the right to inspect and copy "public writings," which term has been interpreted to include judicial records. Ex parte Balogun, supra; Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala.1981) (interpreting a "public writing" to be "a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens"); State ex rel. Kernells v. Ezell, 291 Ala. 440, 442-43, 282 So. 2d 266, 268 (1973) (holding that records of the office of the probate judge are "public writings" within the meaning of the predecessor to § 36-12-40 and are "free for examination [by] all persons, whether interested in the same or not"); Excise Comm'n of Citronelle, supra; Brewer, supra.

Is the situation in Alabama hopeless? Is the public out of luck when it comes to courts that are funded with taxpayer dollars? Not necessarily, writes Forbes:

    The smoke and mirrors in Jefferson County could soon come crashing down if                     investigators find a pattern of hiding or obscuring criminal acts and trampling the         due process of law in obviously biasd and one-sided Star Chambers. . . .

     Sadly, Balch and Bingham and their cronies have a grip on Jefferson County’s judicial         branch that is unprecedented.

    And even public corruption investigators acknowledge the problem, which is a bold           and needed step forward.

These hardly are the only examples of Alabama judges intentionally butchering clear, simple law. We will examine others in upcoming posts.