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How the media failed to stop a judge from closing her court, again

The state objected, the media objected and the defendant did not oppose them. Nevertheless, the Fort Worth judge closed the court to the public in a capital murder case and she did twice.

The lesson learned here is there is nothing to be done about it--not in any practical sense.

This is the case of In Re Fort Worth Star-Telegram; Dallas Morning News; CBS Stations Group of Texas LLC; KXAS-TV; NW Communications of Texas Inc. on behalf of station KDFW Fox 4; and WFAA-TV Inc.

From the beginning: A juvenile named R.J.D., at the age of 16, beat to death a close acquaintance who was then 17 years old. He turned 17 while awaiting trial and on Jan. 10, 2014 there was a hearing to certify him to stand trial as an adult.

The state district judge presiding in this Tarrant County drama was Judge Jean Boyd. Without giving any details, Boyd said she had found "good cause" to close the courtroom. As stated at the beginning, this happened without any prompting from R.J.D.'s attorney and the state prosecutor objected.

On Jan. 22, 2014, R.J.D. was back in court, this time to enter a plea on his trial date. Boyd again closed the courtroom of her own volition and the state objected.

This turned into a cause for the media and numerous other entities, but the public wouldn't know it by what was publicized. On Aug. 14, two days after the Second District Court of Appeals in Fort Worth issued its advisory opinion, the Star-Telegram published a perfunctory editorial opinion that made it sound like the media won this round. That is not quite what happened, at all.

The aforementioned media companies filed a writ of mandamus. The state filed a response, again objecting to Judge Boyd's orders and asserting that she abused her discretion. A friend of the court brief was filed by a group of juvenile law professors arguing that Boyd was in the right. The Texas Criminal Defense Lawyers Association also filed an amicus curiae that sided with Boyd.

Upon review, the Second District first considered whether the media companies even had standing to proceed. That was an easy call. There was plenty of precedent and Second District Justice Sue Walker said in her 26-page opinion that they did have standing, at least as far as half of their request was concerned.

The second challenge involved mootness. Since R.J.D. had been sentenced and his case was closed, Boyd could argue that the media companies' complaint was moot.

"Relators nonetheless contend that this issue falls within the capable-of-repetition-yet-evading-review exception," Walker wrote.

The media established that Boyd had spontaneously, and without reliance on evidence in the record, issued the courtroom closure orders; that she had issued courtroom closure orders under similar circumstances a few times in the past; and that the Jan. 10 and Jan. 22 hearings both concluded the same day they began, Walker noted.

"Consequently, relators met their burden of establishing that the challenged act ... was, and will be in the future, of such short duration that relators could not, or probably would not, be able to obtain review before the issue becomes moot," Walker said.

On this basis, the Second District had jurisdiction, Walker concluded. But what could the Second District do?

The writ of mandamus asked for two things. One was to get Boyd to vacate her order sealing the recorded transcripts of the hearings. But the media is very dependent on the 24-hour news cycle. Months after the case of R.J.D. is closed, what good does that do them?

What the media really wanted, and what the state prosecutor also asked for, was in the second request in the writ. They wanted the Second District to define what is meant by "good cause shown," and to articulate procedures that could be applied to govern future courtroom closure orders.

Walker said the appellate court lacked jurisdiction. In fact, she questioned the standing of the media and the state on this matter.

"The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties," she said. "We cannot speculate as to whether some other type of courtroom closure action taken or courtroom closure procedure followed by (the judge) in the future might or might not constitute an abuse of discretion; nor may we pontificate on the abstract application of section 54.08 to hypothetical facts that are not before us."

"An adequate remedy by appeal does not exist when a trial court improperly excludes the public or the press from proceedings that are to be open," Walker said, and she cited case law that drew this conclusion in 1982: Houston Chronicle Publ'g Co. v. Shaver.

Still, there was no question that Boyd abused her discretion at both hearings and Walker said so. The exception to keeping a juvenile court hearing open--when the subject is more than 14 years old--lies in the Texas Family Code, section 54.08, in the phrase "unless the court, for good cause shown, determines that the public should be excluded."

Boyd told the Second District that she closed the first hearing because the sentencing hearing was only 12 days away and she feared tainting the jury pool.

The plain meaning of the phrase "for good cause shown" has been construed in other statutes to require evidence in the record establishing good cause, Walker said. Boyd did not do that.

Boyd claimed she closed the second hearing because the state prosecutor decided to omit certain facts from the evidence that was to be presented at the hearing.

Double Take: Boyd said she closed the hearing "to avoid the possible presentation of private facts" that the prosecutor said would not be presented.

"But, again, ... in the absence of evidence in the record--stipulated facts, judicial notice taken of facts or of files, testimony, self-authenticating documents, or some other evidence--as to why and how and the extent to which the public dissemination of these private facts would be detrimental to the juvenile or to another party, good cause has not been shown," Walker said.

Walker and the concurring justices of the panel, Bill Meier and Lee Gabriel, granted the writ in so far as it dealt with the transcripts. Boyd was ordered to make them immediately available to the press.

Glass half empty?

Thomas J. Williams of Haynes and Boone in Fort Worth represented the Star-Telegram, CBS Stations Group of Texas, NW Communications of Texas and KXAS-TV.

Paul C. Watler of Jackson Walker in Dallas represented the Dallas Morning News and WFAA-TV.

Charles M. Mallin of the Tarrant County District Attorney's Office represented the state.

Fort Worth criminal defense attorneys Timothy Choy and James W. Lane represented R.J.D.

Boyd represented herself.