*1 reputation not been his had veracity when facts, together with these
attacked. Given prejudice which resulted
the inevitable we are bound to reverse appellants, below,
judgment and direct the trial court appellants. a new trial enter ' judgment of the trial Accordingly, reversed, with that a new
court is directions the appellants.
trial be entered for
All concur.
ASHLAND PUBLISHING COMPANY Huntington Publishing Petitioners,
Company, Kelley ASBURY, Boyd Judge,
Honorable Court, I, Respondent, Division
Circuit Gardner,
Roger Dean Intervenor. Appeals Kentucky.
Nov. 1980.
was a white woman.
alleged by
This is
respondent
Court,
pleadings
in his
to this
although
appear in any
these facts do not
newspaper
reports
us. The
before
10, 1980,
newspapers reported May
that
Oliver, 22,
police
and that
had found Miss
apart-
in her
she had been stabbed to death
Gardner,
evening. Mr.
previous
ment the
24,
address,
lying
was found
of the same
nearby
multiple
unconscious
with
wrist and
leg lacerations. The incident was described
“apparent
attempted
as an
murder and
sui-
12, 1980,
May
reported
cide.”
it was
On
yet
been no arrests in the
there had as
case,
police sergeant’s
but a
statement was
Billings, Vigor Vigor, Paul
John F.
&
C.
quoted
hap-
know what
think we
“[w]e
Hobbs, Ashland,
petitioners.
for
pened
trying
but we’re
to find the evidence
Mizell, Jr.,
Defender,
William M.
Public
15, 1980, it was
up.”
May
to back it
On
Catlettsburg,
Farley,
Jack E.
Public De-
reported
Mr. Gardner had been arrest-
Robinson,
fender, M.
Kevin Michael
Gail
A news-
ed for the murder of Miss Oliver.
Defenders, Frankfort,
McNally, Asst. Public
20, 1980,
May
told that
paper report of
respondent
and intervenor.
Gardner,
in the
“accused of murder
stab-
Counsel, Johnson,
Judy,
Michael L.
Gen.
County High
bing
Boyd
death of a former
Frankfort,
Gaines,
Judy
for amicus curi-
&
plea
cheerleader” had entered
School
Kentucky Press Association.
ae
being held
guilty,
and that Gardner was
198Ó,
23,
May
newspa-
bond.
without
On
COOPER,
Before
and WIL-
LESTER
bond had
per reported that Mr. Gardner’s
HOIT, JJ.
$100,000.00.
28, 1980,
May
been set at
On
appeared describing the circum-
an article
AND ORDER GRANTING
OPINION
finding
body,
of Miss Oliver’s
stances of the
PROHIBITION
stating that she had been found
simply
WILHOIT, Judge.
apartment
her
and that
stabbed to death in
original
brought by
action
lying unconscious near-
was found
Gardner
Publishing Company
Ashland
and the
leg
lacerations.
by
multiple
with
wrist
Huntington Publishing Company against
coun-
reported that defense
The article also
Kelley Asbury, Judge
Honorable
press, public
had moved to exclude
sel
Court,
petitioners
Boyd Circuit
in which the
hearings.
from
and other media
prohibiting Judge Asbury
seek an order
1980,
30,
described
report
a news
May
On
closing
pretrial proceedings
from
in a
to the motion
opposition
petitioners allege
murder case. The
bond
hearing
on the
exclude it from
they
publishers
major
are the
of the two
remarks of
quoted
reduction motion and
area
newspapers serving
Boyd County
Attor-
both the Assistant Commonwealth’s
directly affect-
and that
are therefore
at the closure
ney and defense counsel made
ed
closure order. The defendant
refused to be
hearing.
petitioners
permitted to intervene
the murder case was
ABA
the 1978
Criminal
bound
either
Kentucky
in this action and the
Press Asso-
1965 Fair Trial
or the
Justice Standards
file an amicus curiae brief.
ciation to
adopted by the
Reporting Code
media,
bar, the news
case,
associations
Roger Dean
pending
In the
murder
delaying the dis-
respect to
the bench with
for the murder
Gardner has been indicted
information
of certain
Apparently, Mr.
semination
Georgia Lynn
Oliver.
empaneled.
jury was
man,
after the
while Miss Oliver
until
Gardner is
black
10, 1980,
judge’s
in the
its
result reached
the trial
June
the court entered
On
adjudging
competing
societal inter
order
“assessment of
ests involved.” Id. at
press and electronic me-
public,
that the
pre-trial
was the state behind justice cannot survive outweighed principle who held that spirit and of an intent and walls silence that case defendant’s a fair openness” “presumption of The to find no fault be a appeared trial. there Still, proceedings panded. in the courts.1 This criminal these two safeguards collide open precept only that courts shall be embodies when an extremist view is taken of the idea that the courts shall be either. foreign Such views are spirit available to all seek citizens who redress for of both the federal and state Bills of Rights wrongs “public, but that the courts shall be and their “admonitions of moderation.” L. open, Hand, hiding place no about A Open Plea for the Mind and Free them[.]” Report Proceedings Discussion, Official De- Spirit 274,278 in The Liberty, (2d ed., 1953). bates of the 1890 Constitutional Convention enl. I. Dillard As with the (1890). Rights Bill of of the Federal Constitution so own, with our secured thereby years ago, highest Over one hundred policy are not self-destructive. State, interpreting court of this a section of openness in criminal is not in- the 1850 Constitution identical to Section nullify equally important tended to Constitution, of our stated that the guarantee impartial jury. open courts “are to be held in an *4 But may courtroom doors be closed to “[t]he manner, proceedings and their are not to be general public only on rare a occasion public secret or concealed from view.” way after a determination that in no other 566, 570, Higgins, Ky. Johnson v. 3 Met. justice Lexington can be served.” Herald (1862). recently, More that Court Tackett, supra Leader at Co. 906. although mentioning specifically any Constitution, certainly section of our problems The faced courts in in- by the expressing spirit, its wrote: suring fair trials are much different when
It public deciding is insisted some the to whether a trial itself should be solely trial is for the benefit of the crimi- deciding closed than when whether objection nal defendant if he has no juries proceedings should be closed. Since to a closed trial then the should not sequestered, can be it would be a “rare permitted object. This to contention occasion” indeed when a trial should be is overlooks the fact a hand, sequestration is closed. On the other party proceedings. to all The criminal remedy prevent no at all to circulation proceeding in prosecuted is the name of throughout community or even the state public. opinion the the In our there is large prejudicial information from a nothing protects rights better We do to pretrial proceeding. not mean presence proceed- than their in imply that criminal case is a cause every ings where these are trial. célebre; obviously danger is not. The it pretrial publicity a fair trial from becomes Simpson, Ky., Johnson v. 433 S.W.2d which excite wide- only acute in those cases added). (emphasis language attention, very likely to spread public or are approval Lexington was cited with in Her- so, Tackett, present is cases which do and it these supra. ald Leader Co. v. courts. problem The which for policy same calls hear- openness very purpose in also The of a suppression criminal trials calls for jurors openness pretrial proceedings. ing, example, prevent is to from Never theless, prejudicial evi- press considering inadmissible likely be frus- present proceedings, purpose at criminal even dence. This would trials, prejudicial modern information were not absolute. Just as no trated if the members of a tions of what is embodied in the constitu known to some or all of the began. safeguard panel free are much before the trial even jury tional of a guard thought was methods then available broader than what once suffice, which knows what it should against so too have notions of what is em dire, change through safeguard bodied in the of a fair trial ex- not would be voir juvenile recognize may proceedings. 1. We that there be other tradi- respect tions with to certain civil case, judge hope in the In the the trial venue, continuance perhaps jurors forget. The would prospective we believe the correct stan adopted what questionable. dire utility of voir is often dard, probability irreparable “substantial Dowd, Irvin v. 366 U.S. See closing damage,” but his order (1961). Change of ven- L.Ed.2d 751 hearings involving evidentiary matters has been help if the information may not ue too only one is much presented by side disseminated, also while this method widely presented the evidence broad. Where practical problems— presents numerous jury will is evidence which a only one side counsel, expense, etc. travel availability of anyway (plus any countervail hear at trial the accused’s impinging upon —as well as side), other ing presented by evidence jury of to a trial constitutional right to that the accused’s we do not believe vicinage. Aside constitutional from the damaged irreparably would be a fair trial trial, practical prob- speedy to a to be dissemi by permitting this evidence prosecution engendered lems both the itself trial. While the nature nated before the defense a continuance hearings would seem suppression length prolonged are great obvious—often in favor weigh heavily of their closure accused, fading pretrial confinement for the instances, can still be they many memories for witnesses if if not most there is located, etc. Yet there little assurance indicating record before what in the us jurors remember prospective will not hearings, were to be suppression any, if which have prejudicial information to be held or the nature the evidence heard or read. or whether that evidence presented *5 press public. to the For already known and foregoing
Taking into the account considerations, closure we believe that a we believe the blanket this reason be the and hearing public should closed to hearings too broad. suppression of is also made press only after a determination is judge’s tran probability there is substantial The trial order that the the or his
the
of
accused to a fair trial
hearings be made avail
scripts of all closed
rights
constitutional
will be otherwise
other
empan
after the
able to the
damaged.
be
irreparably
If the evidence to
or
trial exhibited
sequestered
eled and
after
pretrial hearing
at the
is found
introduced
right of the
thoughtful
concern for the
be of a kind that would not be admissible
to
the
of its
proceeding
to examine
itself,
the trial
and if this evidence is not
of
seeking
protect
rights
to
the
courts while
already
generally
the
otherwise
known
policy would seem
an accused. Sound
public, and
press and
the trial court reason
when
transcripts
release of such
dictate the
ably believes that
dissemination
irreparable injury
past.
danger of
the
probably
damage
will
the
irreparably
acquisition of information
public’s
The
accused,
rights
then
constitutional
of the
frustrated,
the
perhaps
delayed but
be
Many
closure should
ordered.
factors
in
of
news media
interest
commercial
danger
upon
irreparable
bear
dam
in
damaged slightly,
current news is
case,
age
any given
in
must be
and each
competing societal
interests
weighing the
its own
Before order
considered on
merits.
pay
for a
price
to be
fair
appears
this
closure, however,
ing
judge should
the trial
fair trial.
utility
reasonable
consider
of other
rights
protect
methods available
reading of
We
not believe from our
do
course, at
the accused short of closure. Of
re-
the First Amendment
the cases
the motion
is made or
the time
for closure
beyond
we have
anything
what
quires
any
heard
member of the
or
required
our own Constitu-
found to
objects must be
who is then
tion.
opportunity
on the
given an
to be heard
the Re-
ORDERED that
It is therefore
ordered,
question.
specific
If closure is
enforcing
from
PROHIBITED
spondent is
findings
setting
should be
made
out
any
and that
for closure.
order of closure herein
need
closing pretrial hearings
specific
in
now turn to the
legal
future order
contentions of
petitioners.
only upon compliance
case shall be entered
opinion.
with this
publishing
companies urge reversal
upon
trial
relying
court first
Sections
COOPER, J., concurs.
8,
Kentucky
11 and 14 of the
Constitution.
8 of the
Constitution
Section
LESTER, J.,
separate opinion.
concurs
provides:
LESTER,
concurring.
Judge,
Printing presses
every
free to
shall be
litigation to be of
I believe this
such
person who undertakes
to examine the
significance
require
upon
as to
comments
so
proceedings
Assembly
of the
General
arguments
orally
several
made both
any
government,
branch
and no law
way
of brief
counsel.
shall ever be made to restrain the
Every person may freely
thereof.
approach the
My colleagues first
basic
fully speak,
print
any
write and
sub-
press coverage
pretrial proceed-
issue of
ject, being
for the abuse of
responsible
ings by
competing
“assessment of the
socie-
liberty.
(Justice
in
tal interests involved”
Stewart
Co.,
DePasquale, 443
nothing
Gannett
Inc. v.
U.S.
court does
The order of the trial
608,
2989,
printing presses
61 L.Ed.2d
to restrain access
freely publish on
deny
fully
dissent
quoting from Justice Powell’s
Co.,
subject
prohibit the immedi-
but it does
Washington
Post
Saxbe
U.S.
reporting
pre-
examination and
of such
ate
L.Ed.2d
party,
where
one
(1974)).
appropri-
This test I consider to
prosecution,
intended to adduce evidence.
nature,
but in order to
ate
cases of this
temporary
denial does
to in-
make this assessment an examination
fringe upon
printing
to utilize
litigants
nature of the
should be made in
judicial proceedings, but
presses or examine
interests
order
to determine what
their
delays
privileg-
the exercise of those
merely
might
though
pur-
be. Even
the avowed
certainly a
es to a time certain. This is
pose
surrogate
is that of
the media
balancing
of the the defendant
nevertheless,
it
denied
people,
cannot be
*6
corporate
those of the
bodies involved.
and
generally
enterprise
it is a commercial
that
income,
produce an
and in most
delineating
rights
which must
of an ac
After
the
cases,
cused,
profit,
provides
a
in order to sustain itself.
that a defendant
11
Section
...”
speedy public trial
usually accomplished primarily
This
is
“...
shall have a
which,
added).
“public”
is the word
advertising
(emphasis
It
through
space
the sale of
they
claim
should be
items,
upon
petitioners
which
along with news
is disseminated
proceed
and,
entitled to be admitted
through
circulation
in a
an area of
that,
overlooks
ings, but
this contention
situation,
publica-
it is the
truly competitive
itself
provision addresses
particular
that
prevails
spread
tion that
which can
the
rights of an accused and
specifically to the
opposed
at an
As
to this
news
earlier time.
of the cases
An examination
no one else.
of a crime
entity is one who stands accused
dealing
11 reflects that
with Section
specified
a
time
liberty
who can lose his
interpreted only from
provision has been
life,
guilty, who should
or even his
if found
and
standpoint
rights of a defendant
of
protection
for his
an unbi-
have as
press.
g. Wendling
e.
or
See
not
judge
panel
potential
and
of
or actual
ased
Commonwealth,
Ky.
143
137
v.
S.W.
jurors together
competent
with a
advocate.
Cahill,
(1911); Beauchamp
Ky.
v.
297
205
ascribing
newspaper industry
By
Therefore,
(1944).
505, 180
423
Sec
S.W.2d
interest, merely
point
wish to
monetary
I
petitioners.
aid to
tion 11 is of little
element it would be
out that absent such an
transcript which
urge
to fulfill its role
Petitioners
unable to survive in order
em-
to them after
by the would be made available
of
informant as is evidenced
of the
sequestration
panelment
of its members.
I
many
recent demise of
in
ten
1862 and the debates on the constitu
the crucial
likely
reflect
would be most
Wilhoit)
(cited by
tones,
inflections, gestures,
impatience
my
or
tion of
Brother
which consti-
in the
proceeding
of a witness
there
no
inattentiveness
were held
proceeding.
Moreover,
“atmosphere"
hearings.
tute the
law
as
known
precise
is
manner
Curiously enough, this
Simpson,
They open are to held I do requested, relief believe a basis for the [courts] manner, *7 and their of the ma- policy pronouncements that the are be secret or concealed from not to is a in that there lesson jority to be sound public view. Johnson, Lexington Herald be learned from Co., Co., DePasquale, Mail Leader Herald Terry, v. 357 overlooks Forrester Inc. v. Newspapers, supra, all Richmond 308, (1962), citing Section 14 as S.W.2d 2814, 555, Virginia, 448 U.S. open meaning always “courts for are ” even Landmark L.Ed.2d 973 language, redress .... or shall very Communications, Virginia, Inc. 435 U.S. v. say meaningful language, pro- I (1978), L.Ed.2d shall be clearly vision states that the courts openness policy is that that the better for open every person remedy to seek a However, rea- since judicial proceedings. injury to him. To hold otherwise done would subscribe temperance, I requires son require adoption would that we throw deter- court has after rule that juvenile matters open probabili- is no substantial mined that there scrutiny. the fact I cannot overlook to a fair accused ty Higgins, supra, was writ- when Johnson v. trial or his other constitutional will damaged, be otherwise then the permitted
should should be to attend and
report pretrial hearings only if the evi-
dence proper adduced thereat would be determine,
the trial of the case to in whole innocence,
or in part, guilt
defendant, however, provided, publication
contained in the should convey
any innuendo whatsoever as to the inno- guilt
cence of of the accused.
Gary DUGGER, Appellant, D. 2ND, INC.; Christie,
OFF Sam and Police Bickett, Costello,
Officers Known as
Stinnett; Blanford, Roy Ford, C. Stevenson, C., Appel
Blanford and P. S.
lees. Appeals of Kentucky.
Dec. 1980. Rehearing
As Modified on Denial of
March 1981. Wiesman, Owensboro, appel- for
William lant. Owensboro, Anderson, appel-
John B. for lees, Bickett, Costello and Stinnett. Plain, Wilson, Plain, Wilson R. Scott & Owensboro, appellees, Roy C. Blanford *8 Ford, Blanford, Stevenson, P. S. C. Owensboro, Nunley, appel- Marvin P. lees, 2nd, Off Inc. and Sam Christie. COOPER, HOWERTON, Before and MC- DONALD, JJ.