If you want to observe Tuesday’s trial of the protesters known as the NATO 3, be prepared for an inconvenience of unusual proportions even by government standards and don’t be surprised if the door is shut to you.
According to an oral ruling by the trial judge, Thaddeus L. Wilson, and a press release from Cook County Sheriff Tom Dart, members of the public who want to attend must make two trips to the out-of-the way courthouse at 26th and California. They must be there a day before to register in person and submit to a background check and return the next day in hopes of landing one the unknown number of limited seats available to the public. A rule against the public taking notes was imposed or at least considered, and then, fortunately, rescinded.
Last week, during pretrial proceedings, the trial judge also ordered all spectators to state their names on the record and admonished them that he could issue contempt citations against anyone who disclosed “identifying information” about any juror. The move left some of those present shaken, intimidated, and fearful of discussing or reporting on the trial. While the courtroom door isn’t technically closed, one would be hard pressed to call it open.
There is reason to fear that the restrictions in the NATO 3 case will cause interested members of the public not to show up. Those who do attend will be chilled in their discussion of what they observed in the courtroom. The net effect will be to deprive the public of full knowledge of how the prosecution unfolds against the three men who were arrested on terrorism charges before world leaders gathered in Chicago to attend the 2012 NATO summit. Their attorneys contend the three men were charged based on “idle chatter, laced with bravado and abetted, encouraged and egged on by the undercover police agents.”
“What transpires in the courtroom,” the Supreme Court has said, “is public property.” Secret trials create an opening for the unsupervised abuse of power and erode public faith in the judicial process. It is for this reason that the Founders of our Republic abhorred secret proceedings — Star Chambers, as they were called in 16th Century England — and held public trials sacred. When Aaron Burr stood trial for treason, Chief Justice John Marshall moved the trial to the Virginia House of Delegates because the courtroom was too small for all who wished to attend.
The public’s right of access to trials is not absolute and, where specific threats exist, restrictions may be imposed to address them. In this case, public access is vital. Since the day the defendants were arrested, the Cook County state’s attorney’s office has attempted to control the public narrative, repeatedly picturing the defendants as “domestic terrorists” rather than protesters. This is a “high-profile” trial only because the state has inflated misdemeanor attempted vandalism charges into trumped-up terrorism charges. There is no apparent reason to suspect any threat to security.
The high profile of this case is no reason to stymie access to the trial or to intimidate members of the public who want to attend to show their support for the defendants. The public should not know the least about the cases that matter the most.
David Shapiro is a clinical assistant professor of law at the Roderick and Solange MacArthur Justice Center, Northwestern University School of Law. Alan Mills is legal director of the Uptown People’s Law Center.