A judge’s decision to limit public attendance to court hearings because of the COVID-19 crisis has advocates and others worried about potential abuse of power and harmful consequences for defendants.

“We don’t do secret judicial proceedings in the United States,” said David Snyder, executive director for the First Amendment Coalition. “When courts or any other government agency operate behind closed doors, they have a tendency to go off the rails.”

The Santa Clara County Superior Court order allows those “required to appear in person for a court hearing” to attend hearings, which generally includes defendants, plaintiffs, their attorneys and witnesses who have been subpoenaed to testify. But not members of the public.

The fallout from this order, signed by Santa Clara County Superior Court Presiding Judge Deborah Ryan, shows the thin line local governments must walk between taking care of public health and obstructing constitutional rights as they address the threat of the coronavirus. The court is trying to remain flexible to allow those who have a reason to attend a hearing not to be blocked out by the pandemic.

“(I)f there is a request that establishes good cause, access would be permitted,” Ryan wrote in an emailed statement through a spokesman. “The Court continues to explore ways to increase public access to court proceedings that do not involve bringing more individuals into the courthouse so as to protect the public health and safety of all.”

The ACLU Foundation of Northern California, the First Amendment Coalition and Public Justice have filed letters with the court opposing the order. The court didn’t comment on the letters or provide responses to them to San José Spotlight.

‘Good cause’ exemptions and secret hearings

The court is holding civil and criminal hearings on issues like temporary restraining orders and family violence matters, Benjamin Rada, a court spokesman, wrote in an email to San José Spotlight. Most are held in person, although some are being held via video. But Rada said that media, advocates and others who can show a “good cause” for being in the room can request an order to attend the hearing.

Some free speech advocates and others didn’t know about the exemption until San José Spotlight reached out for this story. Even if they’d known, they said, they weren’t sure how someone would apply for exemptions or how the general public would know of that possibility.

Snyder said the county’s approach is “better than nothing.” But there are ways to increase access for the public without worsening safety risks in a courtroom. For example, some courts, including a federal court in California, are conducting hearings via teleconference or video conference.

Raj Jayadev, co-founder of Silicon Valley De-Bug, which signed on to the ACLU’s letter to the court, is firmly against the court’s approach.

“If it (the good cause exemption) exists and people don’t know it exists, then it might as well not exists,” he said.

‘A Petri dish of a jail’

It isn’t just potential abuse of power that’s the problem, community advocates and legal experts said. For defendants in criminal trials, hearings may be the only time their families can see them during the pandemic and be assured that they are unharmed, they said.

Judges can also be swayed by seeing a defendant’s community or hearing from family members as to whether releasing defendants on bail is appropriate, which can mean the difference between sheltering in place at home or at a crowded county jail.

At least two inmates have tested positive for COVID-19 in the Santa Clara County Main Jail, although one has recovered and been released from custody. Twelve members of the Santa Clara County Sheriff’s Office staff have also tested positive, eight of whom were assigned to the Custody Bureau.

“The suspension of these due process rights seems academic, but what it really means is someone’s father or someone’s mom is stuck in a Petri dish of a jail,” said Jayadev.

This is also an issue of public trust, he said.

“If injustices happen in empty courtrooms and you have a court that’s not allowing the public to attend, that’s going to make people more vulnerable in a justice system that already seemed unfair,” Jayadev said.

Contact Rachel Leven at [email protected] or follow @rachelpleven on Twitter.