Lead Opinion
This аppeal is from the grant of a petition for a writ of certiorari. On January 6, 2011, a Cobb County grand jury returned an indictment against appellee Dwight Brown in Judge George Kreeger’s courtroom in the newly constructed Cobb County courthouse. Appellee filed a motion in abatement allеging the indictment was not returned in open court. Upon holding a hearing on the motion, the trial court agreed with appellee and quashed the indictment. The State appealed the trial court’s ruling and the Court of Appeals affirmed. State v. Brown,
1. For over a century the rule in Georgia has been that a grand jury indictment must be returnеd “into open court.” See Sampson v. State,
It is a fundamental part of our judicial system that the general public be permitted to witness court proceedings*494 sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted.
Zugar,
At the hearing on the motion in abatement, several witnesses testified that the new courthouse was nоt scheduled to be open to the public for the purpose of conducting the court’s business until January 10, 2011. A deputy clerk testified that she did not schedule any trials or other calendar matters to occur in the new courthouse prior to January 10. Judge Kreeger testified that, although his offiсe had moved to the new courthouse two days after Christmas, during the week of January 6 he was conducting his courtroom proceedings in the old courthouse. On January 6, however, Judge Kreeger wanted the grand jury presentments to occur in his new courtroom so that the grand jury could see thе new courthouse on its last day of convening. The county sheriff testified that his main concern about allowing people into the new courthouse prior to January 10 was safety and security, especially since construction was still ongoing in the new courthouse and equipment and tools were lying about the premises. As a result, the sheriff posted deputies in the breezeway connecting the old and new courthouses. The front entrance to the new courthouse on Haynes Street (Haynes Street entrance) was locked because there were no seсurity personnel to post there as of January 6. Thus, on that date, anyone who wanted to access Judge Kreeger’s courtroom in the new courthouse had to go through security in the old courthouse and cross over the breezeway to where the deputies were posted at the entrance to the new courthouse. The sheriff stated he did not want anyone in the new courthouse without “proper badge and identification.” He confirmed that anyone wanting to enter the new courthouse was required by the sheriff’s office to state his/her business and anyone who could not articulate his/her business for being there would not be allowed into the new courthouse. The sheriff agreed that on January 6, the new courthouse was the only building in the judicial complex that could not be entered into without further inquiry after having gone through the regular security checkpоint in the old courthouse.
2. The State does not dispute the facts of the case, but rather requests the Court to ovеrrule Zugar because the State contends the case has been abrogated by federal law such that the per se injurious rule announced in Zugar should be substituted with a harmless error test. In support of its argument that Zugar has been abrogated, the State cites United States v. Lennick,
Judgment affirmed.
Notes
Likewise the State’s citation to Bank of Nova Scotia v. United States,
Concurrence Opinion
concurring.
I concur fully in the Court’s opinion based on the following two understandings about our holding. First, it should be clear that the Court is not holding that any barrier or delay that members of the general public face in gaining access to a courtroom to observe the return of an indictment prevents that proceeding from being “open to the public.” Instead, consistent with our case law on the related, constitutional right of criminal defendants to a public trial, the question is whether the public was “denied access to the courtroom without justification,” meaning that the court “failed in its obligation to take reasonable measures to accommodate public attendance.” Purvis v. State,
Only when a citizen is unreasonably prevented by courthouse officials from attending a court proceeding — either because his admission to the courtroom is unreasonably refused altogether, unreasonably delayed for a time, or otherwise unreasonably hindered — can it be said that the proceeding is closed to the public.
State v. Brown,
This understanding of our holding today is important to ensure that courts are not deterred from adopting and maintaining reasonable measures to provide security, at the exterior of courthouses and as needed fоr specific interior areas or courtrooms, and also to ensure that reasonable delays occasioned by such things as a broken elevator or a detour during construction are not deemed to have “closed” courts. Thus, we are not endorsing the trial court’s suggestiоn that “any delay whatsoever” may be unacceptable, see id. at 289 & n. 2; instead, we are concluding that the record, viewed as a whole, shows that the various restrictions placed on access to Judge Kreeger’s
Second, in light of the focus of the trial court and the Court of Appeals on the delay that one of Brоwn’s lawyers faced as he tried to get to Judge Kreeger’s new courtroom, it is important to recognize that, while evidence that a particular person was unreasonably prevented from accessing a courtroom is certainly relevant, see, e.g., Purvis,
If the only evidence in this case related to the dеlay encountered by the hapless young lawyer who was sent to observe Brown’s indictment being returned, this would be a hard case. As the Court’s opinion recounts, however, and as also discussed in Judge Dillard’s concurring opinion below, the evidence relating to that lawyer meshes with substantial othеr evidence that the court proceeding at issue was not reasonably open to the general public. For that reason, and with the key understandings discussed above, I concur fully in the Court’s opinion.