By Brittany Hailer
Pittsburgh Current Managing Editor
Before the COVID-19 pandemic, during a live court hearing, any member of the public could enter a courtroom without pre-registration or approval.
But rules have changed in the past year as businesses and government entities have restricted access to stop the spread of coronavirus and most proceedings are held virtually. Now if a person wants to attend a court hearing, they have to request video access at least 24-hours in advance and will block any requests made after that timeframe.
On Feb. 10 the Pittsburgh Current was denied access to a criminal hearing for David Fiori Jr, because of this new policy (Fiori is accused of driving his vehicle through a protest march last July). County Court of Common Pleas Judge Kelly Bigley’s staff denied the request. The Current has covered multiple virtual federal court proceedings and reporters are able to receive access to those virtual streams upon request.
The judicial district’s remote access model to public criminal proceedings is through Microsoft Teams. In order to request a Microsoft Teams link for a hearing, one must submit a request to the district’s website before 9:00 a.m. the day prior to the day of the scheduled court date. The invitation to join the meeting is emailed to the requestor. Users are prohibited from sharing the Teams invitations.
However, it’s important to point out that up until the beginning of January, there were no policies in place to allow public or media access to hearings. In December 2020, two advocacy groups, the American Civil Liberties Union of Pennsylvania and the Institute for Constitutional Advocacy and Protection at Georgetown Law, threatened to file a federal lawsuit against Allegheny County for access. The Pittsburgh Current was a plaintiff in that proposed lawsuit. The groups wrote three letters to President Judge Kim Berkeley Clark since last May of last year requesting remote access to public hearings.
Less than a month after a letter sent in December, court administrators created the aforementioned system–virtual access via Microsoft Teams that must be approved by administration and staff.
But, why does the judicial district require nearly 24 hours to procure a link for a criminal hearing? What happens in that 24-hour window to determine approval? Does everyone who submits a request during the policy’s timeframe get approved?
On Feb. 9, the Pittsburgh Current requested a link to Fiori Jr.’s hearing on Feb 10. The Current sent it’s request at 4 p.m.
At 8:30 a.m., on Feb 10, the day of the hearing, The Current called the Court of Common Pleas, following up on the request. A staffer said the paper had been approved and sent the request to Judge Bigley’s chambers. Judge Bigley’s staff denied receiving the request and said the only paper allowed in the hearing was the Pittsburgh Post-Gazette.
Judge Bigley’s staffer told a Pittsburgh Current reporter that she was not “approved” to enter the hearing and “we can’t just let anyone in” despite that the hearing was public and that a member of the media was currently sitting in on the hearing with a public link.
The staffer said that they were following the directions of their employer.
The Current asked multiple judicial district employees why the request needed to be made before 9 a.m. Staff could not provide an answer. The Current reached out to court administrator Christopher Connors for the reasoning behind the required timeframe to request, but he has not provided comment.
On Feb. 12, Judicial district director of communications, Joseph Asturi, wrote in an email to The Current, “Public Access Requests need to be placed by 9 a.m. the day before a hearing to allow sufficient time for Court Staff to coordinate all attendees needed before sending out the Teams Invitation, which is typically sent to all parties the day or day(s) before a hearing. There are many moving parts to coordinating a court hearing which include scheduling, collecting paperwork, communicating with multiple attorneys and meeting with the Judge to discuss their docket for the day. If a request should come any later than 24 hours before a hearing it becomes quite daunting for staff to go back and continuously add people to a hearing. In an effort to make the Court’s daily dockets run smoothly we ask that the Public Access Requests be made at 9:00am the previous day.”
However, Allegheny County Controller Chelsa Wagner called the court’s denial of access “plainly unconstitutional” and said that public and media having to seek individual approval through chambers will continue to create problems.
“I believe so strongly that these should be online and you shouldn’t have an invitation at all. There should be a public link. Or blanket access for media.”
She agreed with Asturi, judicial district staff are incredibly busy, she said, which is why this current model “just doesn’t make sense.”
“This is the process they set forth—there’s a major, major problem with deferring to the individual chambers. They should be dealing with the matter before them instead of deciding who from the media can be in there or not. The docket is very dynamic, so it’s constantly changing and evolving. Of course you’re not going to present an attorney form coming in because the docket changed the day before,” Wagner said.
Wagner said the media is needed now more than ever during the pandemic. The public can’t walk into a hearing like before. They are relying on the press to cover hearings because of that barrier. And now, the press is denied access, too.
“This runs counter to the right the public and the media has,” Wagner said, “To set up this onerous system, with a lot of room for personal error, it is destined to fail.”
The United States First Amendment does not explicitly say that the public or press have the right to access the courts. However, according to an article written by Emilie S. Kraft, an administrative law judge in Birmingham, Alabama, “…the Supreme Court has held that the right to attend criminal proceedings is implicit in freedom of speech and serves an important function in a democratic society by enhancing trial fairness and its appearance.”
Kraft points to multiple supreme court cases, including Richmond Newspapers, Inc. v. Virginia (1980), in which The Court first held that members of the media had a First Amendment right to attend criminal hearings.
Supreme Court cases are being live audio-streamed. The links are public. There is no request for access.