Cohen: The problem with claiming a ‘witness safety’ exception to the First Amendment

From The Week:  The concept of a public trial is at the heart of the Bill of Rights. It’s right there in the Sixth Amendment, right next to the part about impartial juries. It’s right there in the First Amendment, too, right there in the part about the freedom of the press.

And yet, our public trials are often not nearly as public as we think.

For instance, in Colorado, there’s a remarkable case that is forcing judges to balance in an unprecedented way the constitutional rights of criminal defendants and media organizations with a much more practical right — the right of witnesses to be protected from violence before and after they testify against alleged murderers.

So far, to the chagrin of First Amendment advocates, the Colorado courts have sided with those witnesses (and prosecutors), blocking from public view the written record of a murder trial that concluded six years ago. Even today, as the post-trial phase of this case wends its way through the courts amid substantial allegations of prosecutorial misconduct, the courts have kept the record sealed. There is no legal precedent for such continuing secrecy, especially so long after a verdict. But the United States Supreme Court on Monday nevertheless refused to accept the case for review. The justices want no part of this mess, at least not now.

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