Oops, They Did it Again….
Published October 2023
Just over five weeks after all five justices of the South Carolina Supreme Court issued resounding statements on the importance of open court proceedings—even if they differed on the consequences of a circuit court judge’s failure to follow openness requirements—another state circuit judge held a secret hearing at which the defendant pleaded guilty to the murder of two Florence police officers and the attempted murder of five others in 2018.
Despite the notoriety and public interest in the case, there was no public notice of the hearing: the docket for the case against Frederick Hopkins, Jr. is sealed, and other proceedings in the case have also been held in courtrooms closed to the public. Circuit Court Judge Eugene Griffith Jr., who is presiding over the case, also issued an order barring those involved in the case from discussing it outside the courtroom.
The unannounced plea hearing was held in Aiken County rather than in Florence County, where the crime occurred. While the public and press were excluded, family members of the victims were notified and present at the hearing.
Just a few weeks earlier, the South Carolina Supreme Court released its opinion explaining its earlier brief order vacating the early release of convicted murderer Jeroid John Price; a process that was entirely sealed. Press reports about the release led the Supreme Court to order on April 20 that all records relating to the case be unsealed and on April 26 to issue its order revoking the release. In the Sept. 6 decision explaining the April 26 order, the three-judge majority held that the sentence reduction was improper because the process was done in secret, and the judge had not sought any alternatives to closure, as required by U.S. Supreme Court and South Carolina Supreme Court precedent.
While the dissenting opinion by Justice George C. James, Jr. argued that the early release should not be vacated, it agreed with the majority on the open courts issue. “There is certainly unanimity in this Court that any court should exercise great care and discretion before closing proceedings or sealing any portion of a court record,” James wrote.
In its landmark ruling Richmond Newspapers, Inc. v. Virginia, the U.S. Supreme Court held that “we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice,” and that such openness was required in both federal and state criminal cases by the First Amendment. Closure must be justified by specific findings of harms that would be caused by an open proceeding, and the closure must be only what is absolutely necessary to prevent that harm. “Absent an overriding interest articulated in findings,” the court held, “the trial of a criminal case must be open to the public.”
In South Carolina, where both the state constitution and a specific statute require open courts, the state supreme court has held that “(e)xclusion of the press and public from judicial proceedings is a drastic measure calling for a careful weighing of interests affected.” Thus the court has adopted the closure requirements outlined by the U.S. Supreme Court, and even includes them in a rule for civil cases.
It is unclear whether Judge Griffith undertook this analysis in sealing the entire case against Hopkins. The closures were previously justified by the need to keep jurors from being exposed to evidence that might not be admissible. But this reasoning does not explain the need for closure of the entire docket, and of the hearing at which Hopkins pleaded guilty.
Unfortunately, it seems that the message the South Carolina Supreme Court sent in its strong support for open courts in its ruling in the Price case needs more reinforcement at the local level.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.