COMMERCIAL PRINTING CO. and Bobbie TOSCA v. W. M. Bill LEE, Judge
77-65
Supreme Court of Arkansas
July 18, 1977
553 S.W. 2d 270
(In Banc)
Bill Cinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for respondent.
CARLETON HARRIS, Chief Justice. This litigation arises because of the trial court‘s action in permitting voir dire during a criminal trial to be conducted in chambers away from the press and public.
On March 2, 1977, on a change of venue from Arkansas County, the trial of State v. Antonio Clark commenced in the Circuit Court of Lonoke County. According to the abstract, which is rather meager, upon request of the attorneys representing Clark, the voir dire of the prospective jurors was held in chambers with only the court, the prosecuting attorney, the defendant, defendant‘s counsel, the court reporter, and the prospective juror who was being voir dired
Preliminary matters that relate to our decision should first be disposed of, though some are not argued in the briefs. Of course, voir dire of the jury is a part of the trial itself. Sirratt v. State, 240 Ark. 47, 398 S.W. 2d 63. The news media, even though not a party to litigation in the trial court, has standing to question the validity of such an exclusion. The Florida Supreme Court in State of Florida ex rel Miami Herald Publishing Co., etc., et al, Relators v. McIntosh, Circuit Court Judge, Respondent, 340 So. 2d 904, stated:
“It has been recognized in Florida and elsewhere that the news media, even though not a party to litigation below, has standing to question the validity of an order because its ability to gather news is directly impaired or curtailed. This is so, because the public and press have a right to know what goes on in a courtroom ***”
See also Phoenix Newspapers, Inc. v. Jennings (Ariz.) 490 P. 2d 563, where the court said:
“One further point should be briefly considered. Respondent urges that petitioner has no standing or right to interfere with a criminal action in which it is not a party. However, we think the constitutional right here sought to be enforced is of such significance that any member of the public has a standing to question his exclusion from a judicial hearing.”
Is the issue presented now moot? It is quite true that the voir dire was completed, and that the court‘s order1 only excluded the press and public during the voir dire, the trial thereafter resuming in the courtroom and subsequently concluding. However, we cannot agree that the issue is moot. In Nebraska Press Association, et al v. Stuart, Judge, et al, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), Chief Justice Burger, writing for the court, stated:
“The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one ‘capable of repetition, yet evading review.‘”
Likewise, in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, the United States Supreme Court held that Ms. Roe could still challenge the Texas abortion statute, although she was no longer pregnant, stating:
“If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial state, and appellate review will be effectively denied.”
Certainly the matter of excluding the public and press from the voir dire examination may well occur again, and yet, entirely “evade review.” In the case before us, there was no opportunity to petition the Supreme Court; there was no opportunity at the time the voir dire was being conducted to make a record. The Attorney General‘s office, representing the respondent, states:
“By not asserting their claim to be present at a time when steps could have been taken to determine the validity of their request, the Petitioners must be deemed to have waived their right to subsequently complain of their exclusion.”
As far as the lack of a personal request to the trial court, we have already commented on that circumstance, and certainly no reporter could have, with propriety, hammered on the door of the judge‘s chambers as a matter of demanding admittance, or of expressing objections to the court‘s ruling. It would appear that the petition for writ of mandamus was filed here as expeditiously as possible, same being tendered to the clerk of the court four days after the conclusion of the trial. There was no waiver.
It is argued that mandamus is not a proper remedy; in effect, this argument is simply that the matter of granting the request of counsel for the defendant was a matter of discretion with the trial court. We do not agree, for the reasons hereafter stated.
First, however, let it be said that
As stated, the matter at issue was not one which addressed itself to the discretion of the trial court, for the court lacked the authority to prohibit the public and press from the voir dire examination — which is the sole question presently before this court. Indeed, as far as the record reflects, there was not even any attempt to show how the defendant Clark would be prejudiced unless the voir dire was conducted in chambers with only court officials present. Rather, the record only reveals that a request was made by defense counsel that this be done for the reason of avoiding “adverse publicity for our client.” Actually, we have a statute,
Really, from a practical standpoint, of all the phases of a criminal trial, we can think of less reason to exclude the public, including the press,4 during the voir dire than at most any step taken during the course of litigation. Normally, lawyers ask prospective jurors if they know anything about the facts of the case — if they have talked with any person concerning the facts who purports to be a witness — if they are represented by one of the attorneys involved — their feelings about the possible punishment that might be imposed — or if there is any reason why they could not give
Certainly members of the public, probably including members of a victim‘s family, have the right to hear the voir dire examination of individual jurors. This may well have a salutary effect. Cases have been reversed in this court because of answers given by prospective jurors on voir dire which subsequent investigation established were false, or at least incorrect, and which might have well disqualified the prospective juror. Particular spectators in a courtroom may know of such facts and call them to the attention of interested parties.
One thing is particularly unusual about this case, viz, that the request for the closed voir dire hearing was made by the defendant.
But, says the respondent:
“The act of the Respondent was done at the request of the defendant and pursuant to the furtherance of a fair and proper administration of justice. The Petitioners have failed to show that they have suffered any prejudice due to the Respondent‘s act; . . .”
This is immaterial, for though a defendant is guaranteed a public trial, there is nothing in our constitution or the federal constitution which guarantees a private trial. After all, members of the public have an interest in the trial of one charged with a felony, for a crime is a wrong against the public, and affects every citizen.
This is no new premise. Probably the best known legal writer of all time, Sir William Blackstone, a member of His
“Public wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity.”
Lay citizens, in criticizing courts in reversing or dismissing criminal cases because of the state‘s failure to comply with some legal requirement (though perhaps thought to be technical), frequently comment that the courts scrupulously observe every right of a defendant, but sometimes seem to overlook that the public also is directly affected by criminal acts and has a direct interest in the outcome of the proceedings.
Additionally, the courthouses are paid for with public funds; the judges, jurors, state‘s attorney (and defense attorneys who have been appointed by the court because of the indigency of their clients) are paid with public funds. The public has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice, and it would require unusual circumstances for this right to be held subordinate to the contention of a defendant that he is prejudiced by a public trial (or any part thereof).
As stated previously, we have only one question before us, viz, was the court‘s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic “No!”
In conclusion, whether the petition be treated as a petition for writ of mandamus, or as a petition for declaratory judgment, is really of no consequence. Of course, the case being fully disposed of in the trial court,5 the granting of the writ would be an empty gesture. Suffice it to say that if the
The court erred in excluding the press and public from the voir dire.
GEORGE ROSE SMITH, J., concurs.
GEORGE ROSE SMITH, Justice, concurring. Today‘s opinion really should have been delivered on the Fourth of July, as it probably would have been in, say, 1949 or 1955, when the court customarily sat every Monday during the term, even on Independence Day. Today‘s opinion would, I think, have added brilliance to the celebration.