Daily Press, Inc. v. Commonwealth

FELTON, Chief Judge. Press, Kelly Inc. Daily Ashley (collectively “appel- and

lants”) appeal City from an order of the Circuit Court of the (“trial court”) Newport directing News Commonwealth Virginia and defense counsel in case of Commonwealth of (Nos. CR10-01420, CR10-01421, v. Lillian Callender CR10-01422) [hereinafter Callender to remove original pho- ] report, and an tographs autopsy admitted into evidence during trial, case, Callender from the file in placing photocopies of the exhibits that were retained court file under seal. assert the trial Appellants court failed required findings make the under Press-Enterprise Co. v. Court, Superior U.S. S.Ct. L.Ed.2d (1986), prior sealed, to ordering the exhibits and photocopies that the order was not least protect- restrictive means of ing court, the by interests identified the trial and that the order appellants’ right violated to public judicial access rec- ords, in violation of the Virginia United States and Constitu- § tions and Code 17.1-208.1

I. BACKGROUND 9, 2010, On August a grand jury in the City of Newport News indicted Lillian Callender and Michael felony Stoffa for child neglect of Callender’s seventeen-month-old and twenty- seven-month-old daughters, § of violation Code 18.2- 371.1(A), for second-degree and murder of Callender’s seven- daughter, § teen-month-old in violation of Code 18.2-33. Fol- a lowing 24, 2011, bench trial January on the trial court convicted Callender of second-degree murder of seven- her daughter teen-month-old and felony child neglect both provides, 1. pertinent Code part: 17.1-208 law, Except provided by any as otherwise papers every records and by circuit that court are maintained the clerk of the circuit court shall open inspection shall, be person to and the clerk when thereof, requested, copies furnish except in cases in which it is specially provided. otherwise July Callender on The trial court sentenced daughters.2 2011. Press, Inc., Daily The Kelly, reporter

In March the trial court the clerk of requested permission The trial. file related to Callender’s review court public the 28, 2011, On without request. March appellants’ clerk denied sealing court entered an order hearing,3 notice the trial or file until conclusion entire “from the court 12, 2011, appel- April and cases.” On [Callender’s Stoffa’s] Callender to intervene lants a consolidated motion filed file in case. the court that for the trial court to unseal trial order argued place that court’s Appellants First Amendment file under seal violated the public court Constitution, Virginia provisions the United States Constitution, and Code 17.1-208. motions, hearing on appellants’

On at a April Callen- motion to intervene granted appellants’ trial court der without hearing [appellants] that argument, “finding [are] further hearing.” to this proper party entered 2011 was over- [o]rder March “[found] the entire sealing argument file.” After hearing broad later, May following 2. a bench the trial Six months trial on Stoffa, co-defendant, guilty second-degree court found Callender's daughter and felonious murder of Callender's seventeen-month-old neglect daughters, child him on of both Callender's sentenced August 2011. Commonwealth, Newspapers, In Inc. v. Richmond (1981), public press Supreme the Court that the and S.E.2d 915 held I, Virginia have under Article Section 12 of the a constitutional " cases, pretrial proceedings 'a to attend in criminal unless Constitution likely by open jeopardized' fair trial for the defendant is to be (quoting pretrial hearing.” Co. v. Id. at 281 S.E.2d at 923 Gannett 368, 400, DePasquale, 443 U.S. S.Ct. 61 L.Ed.2d J., (1979) (Powell, concurring)). "the The Court farther stated that public close a [MJotions must have notice of the closure motion.... to writing hearing be and filed with the before the should made in court involved, day public given hearing the must he of the and reasonable hearing Id. at notice that a closure will be conducted.” Here, omitted) added). (citations (emphasis at the 923-24 and footnote give hearing prior its March trial 28, failed to notice or conduct a to place seal. to the entire Callender court file under 2011 order exhibits, from the the trial court stated that “the parties, pictures, the medical reports” [and] admitted into evidence not, during my knowledge, bench trial “have Callender’s been to the than this open by other submission to The trial [c]ourt.” court stated its concern “due Stoffa’s rights process” allow[ing]” and his interest in “not the exhibits photographs admitted into evidence in Callender “to be until [they disseminated Com- properly by are] introduced monwealth and accepted by against th[e] [trial] [c]ourt [Stof- fa].” The court stated that “[t]he consideration [c]ourt’s publication the dissemination and of information contained original prior exhibits to the introduction of those by documents the Commonwealth.” court, The trial appellants’ objections, over ordered clerk of the court “to original secure the withdrawal of the exhibits into at evidence Callender’s and to [admitted trial] place under seal photocopies same to retained in the be Callender file.” It further ordered the clerk the court to release the original exhibits to the Commonwealth and Callen- der’s counsel for use upcoming Stoffa’s trial. It ordered the Commonwealth and Callender’s to return the counsel original exhibits “to the Callender file should an appeal be and, event, noted her case” to return the exhibits the court file “after the trial of Michael has concluded.” Stoffa Finally, the trial court ordered “that the [the remainder of file shall court] be available for public inspection,” and “[o]ther than above, the exhibits withdrawn as authorized as as well copies clerk, thereof secured reports other custom- arily deemed confidential and public inspec- not available for tion, the [c]ourt’s [March 2011] to seal is [o]rder rescind- ed.”

On May appellants petitioned this Court to issue a writ ordering mandamus the trial court vacate April its 22, 2011 order in which it permitted the Commonwealth and Callender’s counsel to withdraw the original trial exhibits the Callender court file and photocopies sealed the exhibits that were retained that file. appellants’ We denied May order on by mandamus for writ of

petition that concluding exhibits, its the trial duty court had no to seal trial

[t]he of the court’s discre- to involved an exercise do so decision Lance-Star, 276 Va. Free The [Perreault tion. See (2008) mandamus Accordingly, ]. reverse decision lie the trial court to not to order does in discretion. reached its Ashley No. 0924-11-1 Kelly, Press and Daily

In re The 2011). (Va.Ct.App. May this Court for petitioned appellants August

On the removal of permitting from trial court’s order appeal exhibits the Commonwealth Callen- original trial of the exhibits sealing photocopies counsel and der’s appellants’ granted in the file. We retained Callender court 2011. In addition the two petition appeal for on October we petition, raised in ordered assignments appellants’ error (i) parties addressing from the whether briefing additional under Rule were waived assignments error appellants’ (ii) hear an jurisdiction appeal we had 5A:18 and whether sealing part trial the file this from the order of the case.

II. ANALYSIS Jurisdiction presented is whether Code 17.1- question The threshold 406(A)(i) Court to hear an jurisdiction appeal confers on this permitting an order the trial court the Commonwealth from exhibits original and Callender’s counsel withdraw placing photocopies from the Callender court file and Appellants that file seal. exhibits were retained under their appeal is venue for proper assert that this Court Callender, because, they as consti- third-party interveners petitioning a “final “aggrieved party” appeal tute an court,” pursuant a circuit to Code 17.1- conviction 406(A)(i). contends this Court not Commonwealth merely chai- appellants venue for this because proper court; lenge ancillary or order of the trial are procedural court; aggrieved by in the trial not Callender’s conviction and not sentence. challenge do Callender’s conviction or Code 17.1-406(A)(i). § 17.1-406(A)(i) § provides,

Code in that pertinent part, “[a]ny aggrieved may party present petition appeal a (i) Court of in Appeals the final conviction a circuit crime, of ... except a where a of death sentence has imposed____” been

(i) 17.1-I06(A)(i) § Interpreting Code that interpreting statutory language When plain unambiguous, “is by we are bound the plain Thus, meaning statutory of language. that when the Gener Assembly plain al has used words that have a meaning, courts cannot those words a that give construction amounts holding the General meant Assembly something other than that it actually expressed.” which Shelton, 482, 488, 195, (2004) v. Beck 267 593 198 Va. S.E.2d Charles, 344, Lee (quoting County 348, v. Town St. 264 Va. of (2002)). 680, S.E.2d 568 682 the plain Where bound meaning statute, the used a we are not language permit- “to ted add to or subtract from the words used the statute.” Commonwealth, Posey 551, 553, 771, v. 123 Va. 96 S.E. 771 (1918). adhere principle We to the that “we must ... assume chose, care, ... the legislature with it words used when it enacted relevant statute.” Barr Town & v. Country Inc., Properties, (1990). 240 396 674 Va. S.E.2d It is incumbent us to upon give effect to every reasonable Commonwealth, Moyer word. v. 531 Va.App. S.E.2d (2000) banc). (en In giving reasonable effect to every word, we presume legislature used word in its ordinary sense in the absence of specific, statutory defini- Id. tion. chose to legislature use the “from a words final

conviction in a of ... circuit court a crime” delineating our 17.1-406(A)(i). added). jurisdiction under (Emphasis Code ed.1999) word (7th defines the Dictionary Law Black’s finding some- judicially process or act as “[t]he “conviction” guilty.” having proved been crime; the state of of a one guilty utilized process appeal from Here, do not appellants crime,” they appeal do nor guilty “finding [Callender] child felony guilty” “having proved been from Callender’s It would strain Id. murder. second-degree neglect “conviction,” it used as of the word meaning ordinary juris- having as 17.1—406(A)(i), the Court interpret Code an order of the by virtue of that arises diction over to, bearing at all and has no wholly ancillary court that is Commonwealth, See Melanson on, conviction. Callender’s (2001) (“‘The plain, S.E.2d preferred is to be of a statute obvious, meaning rational ” curious, narrow, (quoting construction.’ or strained over 608, 395, Zamani, 391, 507 S.E.2d 256 Va. Commonwealth (1998))). 609 un jurisdiction

Further, demarcating appellate our here, 17.1-406(A)(ii)-(iv), the General not issue § der Code from, appeals to entertain authorized this Court Assembly court,” “any final of a circuit “any final decision respectively, court,” declaratory final order for “any of a circuit order added). “When General (Emphases relief.” injunctive or act, presumed in the same it is terms Assembly uses different Commonwealth, 13 Campbell v. things.” to mean different (1991). 38, 21, 24 The Assem General 409 S.E.2d Va.App. parties to this Court from appeals authorized bly could have of the trial court “orders” or “decisions” aggrieved by certain 17.1-406(A)(i), not § but it chose under Code in criminal cases to do so.

(ii) Precedent Supreme Court v. South- holdings Commonwealth Supreme The Court’s (2001), v. Com- and Green 551 S.E.2d erly, Va. (2002), support monwealth, 557 S.E.2d 230 263 Va. § 17.1- under Code jurisdiction our interpretation narrow 406(A)®.

In Southerly, the Court Supreme concluded this Court jurisdiction lacked petitioner’s to consider the from the motion, circuit court’s denial of his years filed seven after his court, conviction as an adult in circuit asserting that his juvenile conviction was void because the and domestic rela- (“JDR court”) tions district court comply failed to with the requirements §§ notice of former Code 16.1-263 and -264. Supreme Court initially stated that “the statute governing the Court of Appeals’ appellate jurisdiction in criminal cases is what really Southerly, controls.” atVa. 551 S.E.2d at 653. The Supreme Court held that statutory language “[t]he 17.1-406(A)(i) restrictive, Code [of limiting ] the Court of Appeals’ appellate jurisdiction appeals from final criminal convictions and from action on motions filed and disposed of while the trial court jurisdiction retains over the case.4 That entire process is purely criminal in nature....” Id. (empha- added). sis and footnote The Supreme Court concluded that Southerly’s motion fell outside purview of this Court’s appellate jurisdiction 17.1-406(A)(i) under Code it because “ ” was ‘in no sense a continuation of the prosecution.’ criminal Id. (quoting Virginia Dep’t Corrections v. Crowley, Va. (1984)). Green,

In 557 S.E.2d the Supreme Court held that the petitioner in that case properly appealed the isolation, In might this suggesting statement be read as that this Court jurisdiction has appellants' over appeal from the trial court's order as one that arises [an] "from action disposed on motions filed and of while jurisdiction trial court retainfed] over [the Callender case.” ] South- 299, erly, However, 262 Va. at 551 S.E.2d at 653. when read in context Southerly of the entire opinion, Supreme it is clear that the Court held that jurisdiction this Court has appeals over "from action on motions disposed filed and of while the jurisdiction trial court retainfed] over only the case” when that action "purely falls within the criminal” " id., process, conviction and otherwise embodies 'a continuation of the ” prosecution,' criminal (quoting Virginia Dep’t id. Corrections v. of Crowley, (1984)). 227 Va. 316 S.E.2d This Court has authority no appellate jurisdiction to exercise § under Code 17.1— 406(A)(i) where, here, as complained the trial court action of was neither prosecution continuation of the part criminal nor of the “purely Green, process” criminal of conviction. 263 Va. at S.E.2d at 232. to this sentence suspended of his revocation

circuit court’s under jurisdiction court retained the circuit Court because suspended of his part all or § to revoke Code 19.2-3065 “circuit that the emphasized Court Supreme sentence. suspen- and probation a convict’s to revoke jurisdiction court’s ” over criminal process purely is of part th[e] of sentence sion Id. at jurisdiction. appellate exercise may which this Court added). (emphasis at 232 557 S.E.2d the trial 551 S.E.2d Here, 262 Va. Southerly, as in file court of the Callender portion to seal a decision court’s crimi was neither a continuation inspection from Callender, purely nor a that process “[was] nal prosecution at 653. The Id. at 551 S.E.2d in nature.” criminal court file was of the Callender portion to seal a court’s order “un that Callender’s nature, the fact notwithstanding civil 298, 551 id. at in nature.” See criminal derlying charge [was] (“This underlying charge if say that is not S.E.2d at nature, automatically criminal appeal is criminal nature.”). statutory construction principles

Consistent with in Southerly Court Supreme by the rationale articulated Green, jurisdic- not have that this Court does we conclude the trial court’s order appellants’ appeal to consider tion from the Callender original removal of exhibits directing the exhibits under seal. of those placing photocopies court file and not “from by not and do aggrieved were Appellants 17.1-406(A)(i). § in the trial court. Code final conviction” under seal place exhibits and The trial court’s order to remove matter not a criminal purely those exhibits was photocopies of jurisdiction, pursuant Code under the Court’s falling 17.1-406(A)(i).6 19.2-306(A) any case in provides, pertinent part, "[i]n 5. Code sentence, imposition suspended or has the execution which the court any suspension cause the court may of sentence for revoke the period, probation within the that occurred at time deems sufficient period suspension fixed the court.” within the or Corp., Appellants cite v. Times-World Hertz (2000), jurisdic- this Court has support contention that of their reasons, foregoing For the we transfer this to the appeal Court, 8.01-677.1, § to Supreme pursuant Code for further proceedings.7

Transferred. Hertz, appeal. tion to Supreme entertain their In Court held that an appeal appropriate remedy challenge "is the to a closure order in a pending proceeding.” criminal Id. at 528 S.E.2d at 464. The Supreme Court stated that media outlets "were entitled to intervene in respective preliminary hearings purpose asserting for the limited objections rulings their to barring [JDR] courts’ them from the Supreme courtrooms.” Id. at 528 S.E.2d at 463. The Court stated that the required interveners "would have appeal any been may adverse order by have been entered the [JDR] court[s].” Id. at added). (emphasis 528 S.E.2d at 464 Appellants they process by assert adhered to the endorsed the Su- preme court, by intervening Court in thereby making in the trial Hertz party Appellants themselves a they to Callender. contend constitute an "aggrieved party” “may present who petition appeal to” this Court because Callender did not involve "a sentence of death” and the sealing order entered in that case was adverse to their as interests 17.1-406(A)(i). third-party § interveners. Code appellants' Commonwealth asserts that reliance on Hertz misplaced Supreme purported because the identify Court never appellate jurisdiction which appeal court would have over an aof Hertz, sealing court's order. See 259 Va. at 528 S.E.2d at 464 that, (noting only courts, had the media outlets intervened in the JDR they required “would appeal any have been may adverse order that court[s]”). have been entered the [JDR] agree Hertz, We Nothing with Commonwealth. a case decided Green, Southerly suggests before appeal that an from a circuit sealing noncapital court’s order in a appeal, case constitutes a criminal appeal much less an from a "final conviction ... of ... a crime” over appellate which this jurisdiction Court could exercise pursuant to Code 17.1-406(A)(i). provides, 7. Code pertinent part: 8.01-677.1 appeal [N]o properly timely which was otherwise filed shall be jurisdiction dismissed for solely want of because it was filed in either Supreme Appeals Court or the appellate Court of and the court in which it was filed thereafter rules that it should have been filed in the event, other court. appellate In such ruling court so shall appellate having transfer the to the appropriate jurisdic- proceedings tion for further in accordance with the rules of the latter court. dissenting part,

ELDER, J., concurring part, of transfer. from the order dissenting I. I facts in Part recitation of the majority’s in the I concur 6 that the decision in footnote in its conclusion also concur 528 S.E.2d Corp., 259 Va. v. Times-World Hertz jurisdictional of the (2000), our resolution govern does not However, Court’s decisions Supreme light issue. Southerly, v. Va. Commonwealth Commonwealth, 191, 557 S.E.2d (2001) 263 Va. , and Green 17.1-406(A)(i)to (2002), provide § interpret I Code would of Appeals, lies in the Court appeal over this jurisdiction otherwise. Court instructs Supreme and until unless I has Thus, Because believe this Court respectfully I dissent. remain appellants’ I would reach appeal, over the jurisdiction error, the circuit and I would reverse assignments of ing a of the record.8 sealing portion court’s order

I.

A. JURISDICTION in criminal matters is jurisdiction appellate This Court’s 17.1-406(A), “[a]ny § that provides Code which by defined a for to the Court may present petition appeal aggrieved party of a ... final conviction in a circuit court from Appeals crime, where a sentence of death except traffic infraction or a rule, Supreme Court imposed.As general has been in civil matters. See jurisdiction has Virginia appellate 17.1-406(A), the Supreme Code Interpreting § 8.01-670. explained has Court the method to seek relief from employed

it the nature of is the circumstances under which criminal conviction and that determine whether an employed method is parties granting petition appeal, we to address directed the In preserved assignments included. The appellants all of error whether reflects that its "review of the record Commonwealth states on brief arguments under Rule 5A:18.” present are reviewable that all of the regarding preser- supports concession The record the Commonwealth's vation. civil or criminal in If nature. the method consists of an appeal from the conviction itself or action on motions disposed jurisdic- while the trial court retains filed case, tion over the criminal in appeal is nature. Southerly, 262 551 S.E.2d at 652-53 (emphasis added); Green, see also 263 Va. at 557 S.E.2d at 232. Because the trial court granted appellants’ motion to intervene and ruled on their to obtain request access to the exhibits as part of the criminal matter against Callender while it retained hold, jurisdiction, I would contrary position to the taken fall majority, appellants broadly within the worded cate gory of “[a]ny aggrieved parties]” authorized by Code 17.1— 406(A) to “present petition a for appeal to the Court of ... Appeals final conviction in a ... circuit court of Thus, a crime.” I would reach the merits the appeal. of

B. MOOTNESS order, Pursuant to the trial court’s when Callender noted her the appeal, original exhibits were returned to the case file sealing Thus, and the order was lifted. the Commonwealth However, contends the is now moot. the opportunity appellants review those exhibits contemporaneously (and with trial) Callender’s prior convictions to Stoffa’s has passed. Commonwealth, See Richmond Newspapers, Inc. v. (1981) (“ 222 920 ‘The knowledge that every criminal trial subject is to contemporaneous review in the forum of public opinion is an effective restraint on ” possible of judicial abuse power.’ (quoting Gannett Co. v. DePasquale, 443 2898, 2905-06, U.S. 99 S.Ct. 61 (1979)) added)). L.Ed.2d 608 (emphasis case, therefore, This presents a example classic of an issue of “capable repetition, yet review,” evading exception well-established to mootness doctrine. The United States Supreme Court considered a very similar Court, issue Globe Newspaper Co. v. Superior 596, 102 (1982): 457 U.S. S.Ct. 73 L.Ed.2d 248 Court, In this challenges Globe that portion the trial court’s order ... that holding] statute at [the re- issue] quires, circumstances, under all the exclusion of press victim in testimony of a minor during the

and general with expired the entire order trial. Because a sex-offense the defendant was rape trial at which completion whether a live consider at the outset acquitted, we must Ill, 2,§ of the Constitu- Art. controversy remains. Under contro- to actual cases or tion, only extends jurisdiction our Stuart, 427 U.S. Assn. v. Nebraska Press versies. (1976). “The 2791, 2796-97, L.Ed.2d Court 683] S.Ct. [96 however, necessarily not jurisdiction is recognized, has if expired, has the order attacked simply defeated because one parties ‘capable underlying dispute between ” Ibid., Southern yet evading quoting review.’ repetition, ICC, S.Ct. [31 Terminal 219 U.S. [498] Co. Pacific (1911) 279, 282, 55 L.Ed. 310 ]. Globe, reasonably .... be assumed that as It can serving metropolitan the Boston publisher newspaper area, on someday subjected relying be to another order will rule. mandatory [DePasquale, closure See statute’s] [the 377-78, 2904]; Newspa at at Richmond 443 U.S. S.Ct. pers, Inc. v. Virginia, U.S. ^[555] [100 S.Ct. (1980) And be (plurality opinion). 65 L.Ed.2d 973 ] duration,” ibid., typically criminal trials are of “short cause review, likely will “evade or at least consid such order ], supra, Court.” at 547 plenary ered review this [Stuart that the contro therefore conclude S.Ct. We [96 2797]. Art. meaning us is not moot within the of versy before III.... 602-03, 102 2613 with quoted approval Dep’t

Id. at S.Ct. of Lines, 130, 419, 427-28, Tax. v. Delta Air 257 Va. 513 S.E.2d Ct., 1, 6, (1999); Super. 134 see Press-Enter. Co. v. 478 U.S. (1986) 2735, 2739, 1 92 L.Ed.2d Press- [hereinafter S.Ct. preliminary hearing refusal to release (holding Enter. II] after transcript transcript not mooted when court released trial 443 U.S. at jury right); DePasquale, defendant waived 377-78, hearing transcript). (suppression 99 S.Ct. at 2904 issue in the instant case does

Although exhibit-sealing Newspaper like Globe mandatory provision not involve Co., here, Judge trial he was “the judge noting Chief circuit,” stated, many this “This Court is familiar with cases in original which the Commonwealth has to withdraw [moved] prosecuted, until all defendants have been and the exhibits frequently granted Court has motion....” Court “[T]he administratively has often allowed evidence [much defendant], of a upon proper admitted the trial documenta- tion, subsequent prosecutions to be withdrawn” until of related completed. judge defendants were The trial also referred to the withdrawal of exhibits the means “securing] added). customarily used.” (Emphasis These statements readily the conclusion that the support issue here is reason- ably to recur and likely to evade review this Court. Com- Church, 453, pare City Salvatierra v. Falls 456- Va.App. of (2001) 546 S.E.2d to (applying permit doctrine review where “appellant’s commitment to of Department [the Juvenile was too short to ... appeal” Justice] but “[b]ecause ..., appellant is on he is parole subject to re-commitment offense”), upon based a new and Commonwealth ex rel. State Co., Water Ctrl. Bd. v. Appalachian Power Va.App. (1991) (en banc) 402 S.E.2d doctrine where (applying appellee agency attempted to moot challenge validity permanent regulations by enacting emergency regulations), Elliott, with Va. Dep’t State Police v. 48 Va.App. 553- (2006) 204-05 (refusing apply doctrine party where the whose voluntary actions caused mootness review). the party seeking was

Thus, I would hold the is not moot.

C. THE CONSTITUTIONALITY OF ORDER THE

SEALING EVIDENCE Appellate ruling request review of on a for closure of a novo, or hearing grounds trial on constitutional is de In re The Observer, (4th Cir.1989), Charlotte 882 F.2d although subsidiary factual require issues deferential review.

The United States Supreme rulings respect Court’s with upon rest two different provisions “directs, Bill Rights. The Sixth Amendment in relevant 228 the accused shall prosecutions, that all criminal

part, ‘[i]n ” v. right speedy public Presley to a trial.’ enjoy 721, 723, 209, -, 175 L.Ed.2d Georgia, 558 U.S. 130 S.Ct. (2010). held Supreme 675 The United States Court has also beyond trial extends the accused and can public right that “the (citing under the First Amendment.” Id. Press- be invoked Ct., 501, 819, 464 104 78 Super. Enter. U.S. S.Ct. Co. (1984) ]). right Press-Enter. I The L.Ed.2d 629 [hereinafter a one. Richmond contemporaneous Newspapers, of access is if 222 at 281 S.E.2d at 920. Even a closure order “ the materials which delay’ upon causes ‘minimal access to “threaten[sj” made,” judicial delay decision was that “the ” Observer, 882 F.2d at 856 ‘openness.’ value of Charlotte 823). I, at at (quoting Press-Enter. 464 U.S. 104 S.Ct. right public press open may give to an “ way to certain other ‘such as the defendant’s rights, trial,”’ -, Presley, a fair 558 U.S. at 130 S.Ct. at 724 (quoting Georgia, Waller v. 467 U.S. 104 S.Ct. (1984)), protection 81 L.Ed.2d 31 of victims of sex “[t]he crimes from the trauma and of public embarrassment scruti II, ny,” Press-Enter. at n. at 2741 or 478 U.S. S.Ct. “ ‘the interest disclosure of sensi government’s inhibiting ” at -, information,’ tive Presley, 558 U.S. 130 S.Ct. at 2215). Waller, at (quoting U.S. S.Ct. at ‘“Such rare, however, circumstances will be and the balance of inter ” added) special (emphasis ests must be struck with care.’ Id. Waller, 2215). 45, 104 (quoting 467 U.S. at S.Ct. at may Before a court exclude the any stage of a criminal trial: party seeking hearing

“[T]he close must advance overriding likely prejudiced, interest that is to be the clo- necessary sure must be no broader than that protect interest, the trial court must consider alterna- reasonable closing proceeding, findings tives to and it must make adequate to the closure.” support 2216). “[Tjhe Waller, Id. at (quoting U.S. S.Ct. interest, interest, to that articu- particular and threat must ‘be lated along findings specific enough reviewing with

229 court can determine whether the closure properly- order was ” I, 510, entered.’ Press-Enter. 464 U.S. at 104 S.Ct. at 824 added). (emphasis “The First Amendment right of access be cannot overcome the conclusory assertion that publicity might deprive the defendant of fair [a Press-Enter. trial].” II, 15, added). 478 U.S. at 106 Also, S.Ct. at 2743 (emphasis the court must consider alternatives to closure regardless of whether the party opposing closure offers such alterna at -, tives. Presley, 558 U.S. 130 S.Ct. at 724-25.9 Possible alternatives to closing criminal proceeding for fear of tainting jury pool may venue, include changing trial, Stuart, postponing or sequestering jury. 427 U.S. at 563-65, 2804-06; 96 S.Ct. at see Shenandoah Pub. House v. 253, 259, Fanning, 253, (1988) 235 Va. 368 S.E.2d 256 (citing Stuart persuasive as authority a case under Code 17.1- 208, which provides right judicial access to certain rec- ords). dire, “Through voir cumbersome it as some circumstances, a court can identify jurors those prior whose knowledge of the case would disable them from rendering impartial II, verdict.” 15, Press-Enter. 478 U.S. at 106 S.Ct. 2743; Observer, at see Charlotte 882 F.2d at 855-56 (“Though in particular cases the threat may be so overwhelming that only more drastic adequate, measures are recent experience in a number of nationally publicized of widely publicized trials individuals serves to validate efficacy of the voir dire for (United purpose.”); this In re Nat’l Broad. Co. States v. (2d 945, Cir.1980) Myers), 635 F.2d 953 (noting high-profile case that many prospective jurors do not follow news of even highly publicized prosecutions closely), cited with approval Observer, Charlotte 882 F.2d at 855-56.

This case involves the trial court’s sealing of exhibits admit- ted at trial rather than the closing the trial itself. Virgi- appellate nia’s courts have held the same principles apply to determine whether a constitutional of access exists to Presley implicitly thus part overrules in the decision in Richmond 590, Newspapers, 222 Va. at (stating 281 S.E.2d at 924 that "[t]he intervenors ... shall showing have the burden of ... reasonable alterna- added)). (emphasis tives to closure” media access also “to determine hearing apply

a particular In into therein.”10 documents that were submitted evidence Corp., 488 S.E.2d re Times-World Va.App. Enters., added) (citing In re Worrell (1997) (emphasis (1992)), overruled 419 S.E.2d Va.App. Hertz, 610, 528 at grounds by on other S.E.2d part Commonwealth, 264 Va. Co. v. Newspaper see Globe 464; (2002). had not been Here, photos yet autopsy report yet no trial had in Stoffa’s case because offered into evidence occurred, they nothing and in this record indicates whether discovery. via made available to Stoffa’s counsel had been Callender, proceedings against to the party Stoffa was not and to which the matter in intervened appellants the which Nothing in the record pertained. order sealing court’s appellants’ received formal notice of motion indicates Stoffa attorney neither nor his was opposing sealing, the and Stoffa deciding it was hearing.11 Assuming at the without present point See also Globe 10. The Commonwealth concedes this on brief. Pokaski, (1st Cir.1989) (holding that Newspaper Co. v. 868 F.2d surrogate public], press [for to fulfill its function of it "DL]fthe only judicial proceedings surely report to on those cannot be restricted Indeed, personnel contemporaneously”). that it has sufficient to cover general ... "a rule for all criminal cases that once the substance of view, exposed public right to there is no of access to evidence has been meaningful preserving preclude and aural means of it” would visual public inspection of the numerous records and documents to which the Id.; during proceedings. ABA public did not have realistic access 8-3.2, Justice, Standards (3d ed.1992) Criminal Fair Trial and Free Press right judicial pro (articulating access to all exhibits, ceedings expressly related documents and based on the recognized the United States First Amendment of access Supreme Newspapers, subject specific, Court’s decision in Richmond may sealing). princi narrowly justify These defined circumstances that ples apply only do to documents that have been filed or admitted and merely during discovery. produced In Re not extend to documents 676-80, Enters., Va.App. 274-77 Worrell Hertz, (1992), by part grounds 259 Va. at overruled in on other S.E.2d at 464. Although spoken prosecutor said she had to Stoffa's counsel and autopsy report implied he shared her concerns about release entirely press, point were not clear. photos to her comments on this proper nevertheless for the trial consider Stoffa’s interests in his trial in upcoming whether to seal determining already trial, the exhibits admitted Callender’s the trial court’s findings failed to meet the stringent requirements for sealing the Although exhibits. the trial court ruling said its applied to this case it only, failed to articulate a rationale case, unique was to this stating only as generally follows: The Court’s consideration is the publica- dissemination and tion of information original contained exhibits prior to the introduction of those documents the Commonwealth trial, Stoffa’s subsequent [in which the trial court believed was scheduled for the next ... so as to not month] violate or prejudice or bias the interest of the Commonwealth aor defendant. those exhibits are properly

[U]ntil introduced anoth- against defendant, er there are issues regarding discovery [and] admissibility as to their against effectiveness other defen- dants.

Certainly can anyone get a transcript as to what occurred the trial ... only one that [but][t]he has read these docu- ments a result of their [as admission Callender’s has trial] been the Court.

It doesn’t have to do with trying be secret about [any particular It has to do preserving exhibit]. with the right of the Commonwealth or the defendant until it comes in. It has to do with allowing not a member of the public to come in and damage it any way destroy or or remove it from the file.

The trial court made no specific findings in its written orders.

Thus, the court failed to articulate the required specific findings to establish “an overriding interest [existed] closure, require[d] that closure essential to preserving [was] higher values than the presumption openness,” of and that “the closure order narrowly [was] tailored to serve that interest.” In Re Times-World Corp., Va.App. (1988);

S.E.2d Co., see In Re Washington Post (1986) “blind[ly] may not (holding F.2d 391-92 concerns”). security of “national claim accept[ ]” in matters involv- impact, considered the courts have Other access providing together, not tried multiple defendants ing trial when another in one defendant’s admitted to exhibits Broadcast- In In re National remains to be tried. defendant (United F.2d at the Court Myers), States ing Co. access public’s Circuit held for the Second Appeals Myers in “the cases” admitted (videotapes) to trial exhibits facing ... trial on a fair trial of others any “risk to outweighed on the United Relying part indictments.” other Abscam in Rich- holding First Amendment Court’s Supreme States the Court reasoned: Newspapers, mond ..., Abscam about the extensive about [Djespite publicity knowledge had no jury selection half of those summoned Abscam, cursory had more than only handful publicity surrounding the intensive knowledge. Even likely widely reported the most Watergate, very events of decade, the selection of prevent did not past crime of the events as would jurors knowledge without such serving impartially. them from prevent must be public large .... do not believe the We jurors remaining if in the they sanitized as all would become fair trial for the alleged trials. The risk to a Abscam yet speculative Abscam defendants to be tried too ... evidence justify public’s right inspect denial of the open court. presented reveal that at a particular

If voir dire examination should difficulty assembling an genuine time and location there is unduly even that the effort to do so risks impartial jury, or will be jury the cross-section from which the trial narrowing selected, protective trial courts can take additional measures of a continuance or of venue. through granting change widely publicized Abscam cases” were "criminal "fT]he so-called Congress on prosecutions of Members of and other officials charges arising bribery out of an elaborate F.B.I. undercov- and related Co., 'sting' F.2d at 947. operation.” Nat’l Broad. 635 er

233 (citations omitted) (also at approving Id. 953-54 & n. 9 copying evidence), Observer, the approval of cited with in Charlotte (“[The F.2d magistrate’s gives at 855-56 assessment] capability much too short shrift to the of voir dire to guard potential the of against prejudice pretrial publicity, including ... [any] republications attributable to exhibits admitted at [of hearing change on defendants’ motion for of be- venue] time.”). original tween and trial dissemination If voir problems dire was sufficient to avoid bias in the cases, Abscam so too should it have in been sufficient this case permit to have appellants requested access to the exhibits. the prosecutor Even in the Callender and Stoffa matters conceded that possibility jury tainting pool, Stoffa changed event his mind and decided exercise his to trial by jury, probably enough was not to justify sealing the exhibits admitted in Callender’s trial. argues Commonwealth on “it appears brief that ... intended, just exhibits,

appellants not to examine the but to copies make of them their own use.” It contends that the decision Smith v. Richmond Newspapers, Va. (2001),

S.E.2d 878 drew a clear distinction between these rights, “repeatedly emphasizing] that addressing it was only intervening newspaper’s attempt to listen to [certain] not to tapes, copies Thus, obtain of them.” the Common- wealth provides contends Smith support additional for the trial court’s ruling refusing access. I would conclude this is a argument herring, red as I nothing see the record clearly indicating appellants sought make copies leave to these exhibits. appellants The closest is the request come their motion “full and unfettered to the access record.”

Whether First Amendment guarantees right to copy capable being exhibits duplicated to be an appears open Smith, question Virginia. See 118-19 Va. at & n. S.E.2d 881-82 & n. (upholding public right to “inspect” audiotapes criminal trial listening to them but expressly addressing not release of the tapes”); “[t]he audio see also Co., Newspaper 629-30, Globe at 570 S.E.2d at 812-13 that, DNA results in a trial in which test the notion (rejecting admitted, to right First Amendment “access” have the been have additional DNA evidence includes the to admitted biological produce on tested to sample the testing performed evidence). if to already appellants sought the Even result the this Court were to conclude duplicate publish and it such a require permit activity, did to applicable law not the should consid- narrowly approach more tailored have ered, exhibits, permit the would have been to sealing in lieu of publication. or duplication examination without no other for the trial court’s The record contains basis any the in Callender’s case which is decision to seal exhibits already argument than the weak bias” stronger “potential jury trial court here did not articulate a Although evaluated. case, it sealing specifically tied the facts this basis for are intro- properly said “until those exhibits generally defendant, issues regarding duced another there are against are their discovery, regarding admissibility there as to issues added). (Emphasis against effectiveness other defendants.” The autopsy report at issue here—the and related exhibits against photos of the deceased child—were admitted Callen- der, mother, trial the deceased child’s in Callender’s bench protect Nothing failed to the child. allegations based on she not articulated the record indicates those exhibits would Stoffa, also against have been admissible whom Common- directly responsible wealth party contended was more 3A:ll(ii) addition, In Rule expressly permit- child’s death. Stoffa, motion,” ted written “to or “upon inspect copy any reports ... written photograph autopsies.” relevant in this contains no dis- concerning record case evidence not covery requests may may defendant Stoffa or have made However, even failed to assuming his related case. Stoffa fashion, in a request autopsy timely tactical report prevent obtaining, desire the Commonwealth to Stoffa from trial, autopsy report via the record Callender’s he failed a sufficiently in his case would not request provide own justification under First Amendment for the compelling trial court’s refusing make the exhibits from Callender’s public.

The trial court noted a legitimate concern about preserving the physical integrity of the exhibits so as to “not allow[ ] member to come in and damage [an exhibit] any way destroy or it or remove it from the file.” Counsel for appellants argued narrowly tailored method of addressing this concern would be to require the parties to substitute photocopies for any exhibits removed from the file. The trial court directed parties the to follow procedure this of submit ting photocopies for the withdrawn exhibits but then sealed the photocopies, clearly not the narrowest method of protect ing physical the integrity of the evidence.13 Nixon v. Cf. Commc’ns, Warner 589, 609, 435 U.S. 1317-18, S.Ct. (1978) (in 55 L.Ed.2d 570 applying “the common-law right of judicial records,” access to upholding restriction on access to audiotapes admitted into evidence which prevented “physical access” to tapes the but permitted press the “to listen to the tapes” and have ongoing access to transcripts of the tapes).

Thus, I would hold the trial court’s of sealing the exhibits at issue was unconstitutional.

D. LEGALITY OF THE ORDER

UNDER CODE 17.1-208 Code 17.1-208 provides in part: relevant Except as law, otherwise provided by any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person shall, and the clerk furnish when requested, copies thereof, except cases in which it is otherwise specially provided. statutory

This language, which “has endured for more than a century,” was “intended to recognize the generally accepted sealing 13. In photocopies, the court noted possible the risk of damage to the actual exhibits was "rare" and was "not only the Court's consideration.” legislature’s] rule of and to declare openness [the common-law Fanning, the rule.” statutory exceptions make power to at This code section 235 Va. at S.E.2d “broad,” no criminal and civil “makes distinction between pub “provides presumption rebuttable proceedings,” duly judicial including ... records” filed lic access 255; 257-58, at 368 S.E.2d at see Worrell exhibits. Id. Enters., (noting, 419 S.E.2d at Va.App. at exists contrast, that no common-law of access to discov documents). moving ery presumption, overcome the “[T]o establishing ... the burden interest so party bear[s] protected reasonably by that it cannot be some compelling order, than a and ... such order protective measure other public’s must the manner least restrictive be drafted 258-59, Fanning, 368 S.E.2d at 256 interest.” 235 Va. involving on federal and state cases the constitutional (relying issue). statute, standard, requires like constitutional “specific factual ... a decision to restrict findings support Adm’x public access to court records.” Perreault v. The Free (2008). Lance-Star, 276 Va. decision whether to seal the record rests within “[T]he sound circuit court.” Id. at discretion S.E.2d Thus, statutory analysis requires 359-60. issue an analysis similar to the constitutional but is reviewed under an abuse standard. of discretion statute,

The record that under the under the establishes like Constitution, the trial court abused its discretion both requested inspection failing to make the refusing refusal, specific findings required support including of less restrictive evaluation alternatives.14

II. sum, In I respectfully ruling transferring dissent Thus, I would reach the merits of the appeal. court, by that the sealing conclude exhibits without permits deny request expressly 14. Code 17.1-208 the court copies of the records. or making specific findings which that action consider- support alternatives, ing less restrictive both violated the Constitution and Code 17.1-208. S.E.2d

Thomas Lee HICKS Virginia. COMMONWEALTH Record No. 1431-11-4.

Court Appeals Virginia,

Lexington. 29,May

Case Details

Case Name: Daily Press, Inc. v. Commonwealth

Court Name: Court of Appeals of Virginia

Date Published: May 22, 2012

Citation: 725 S.E.2d 737

Docket Number: 1005111

Court Abbreviation: Va. Ct. App.