Lead Opinion
In Rockdale Citizen Pub. Co. v. State of Ga.,
Lumpkin mandates that a motion for closure
be supported at the hearing by the movant by evidence con*580 stituting “clear and convincing proof’ that no means available other than closure of the hearing will serve to protect the right of the movant.
Id. at 580 (5). A review of the record and the superior court’s order establishes uncontrovertedly that there was no evidence adduced in this case to support the superior court’s finding that there is a “clear and present danger” that Turner will not receive a fair trial before the jurors from the changed-venue county. Instead, the superior court based its finding on speculation regarding the media coverage that might occur in Hall County to which Hall County residents might be exposed and assumed that this speculative coverage would be so inflammatory that Turner’s right to a fair trial would be prejudiced in the absence of closure.
Assumptions and speculation cannot provide the “clear and convincing proof’ required by Lumpkin to justify closure. “Clear and convincing proof’ necessarily involves concrete, tangible evidence that can be made part of and attached to the record to enable appellate review of a trial court’s decision on an issue of constitutional magnitude. “Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.” (Emphasis supplied; footnote omitted.) Press-Enterprise Co. v. Superior Court of California,
The superior court explained its closure and venue change rulings by stating that as a result thereof, “the Defendant will have the benefit of a jury pool that will not be privy to pre-trial evidentiary hearings, arguments, and rulings.” The Federal and Georgia Constitutions do not entitle a defendant to a jury wholly ignorant of all aspects of the crimes charged and legal proceedings brought against him; rather, a defendant is entitled only to a fair and impartial jury that can render a verdict based solely on the evidence presented in court. See
Given the change of venue in this case, there exists no evidence to support closure of all pre-trial evidentiary hearings in this capital prosecution, wherever held. The superior court’s order closing all pretrial evidentiary hearings in this case is accordingly reversed.
Judgment reversed.
Notes
The superior court’s order provides for closure regardless of whether venue is changed before or after completion of all pre-trial evidentiary hearings.
The superior court’s order contains, inter alia, the following statements: “Extensive and prejudicial publicity can overflow the boundaries of Rockdale County and infect potential jurors in counties where venue may potentially be changed”; “the Atlanta [media] might well take notice and begin reporting on the pre-trial hearings . . . [and t]he resulting pretrial publicity could infect potential jurors in a vastly larger area than Rockdale County”; “the possibility is very real that the new venue would become infected by the extensive and inflammatory coverage by the Rockdale media”; “[t]he press from the local media of the county of change of venue could obtain the information printed in the Rockdale media and disseminate it... , thereby infecting the potential jurors with highly inflammatory information”; “[i]t would be disingenuous to believe that the media outlets in the new venue would not seize upon the juicy details previously covered by the Rockdale County media and immediately run articles based [thereon].” (Emphasis supplied.)
Concurrence Opinion
concurring specially.
In Rockdale County, Marvin Turner was indicted for murder. Turner and the State moved to close the pre-trial proceedings to the press and public and, after conducting a hearing, the trial court granted the motion. On appeal, however, we vacated the trial court’s order and remanded “for consideration of the alternatives to closure.” Rockdale Citizen Pub. Co. v. State of Ga.,
This Court’s opinion in the first appeal establishes as the law of the case that, prior to the change of venue, some remedial measure was necessary, because the highly inflammatory pre-trial publicity constituted “clear and convincing proof’ of “a clear and present danger” to Turner’s right to a fair trial in Rockdale County. Rockdale Citizen Pub. Co. v. State of Ga., supra at 93 (1). Thus, the only question to be addressed by the trial court on remand was whether closure of the pre-trial proceedings was the appropriate remedial measure to protect Turner’s right to a fair trial in Rockdale County. In this state, closure is not an available remedy unless there is clear and convincing proof that no other alternative will protect the defendant’s right to a fair trial. Rockdale Citizen Pub. Co. v. State of Ga., supra at 93 (1); R. W. Page Corp. v. Lumpkin,
The trial court nevertheless entered another closure order. As the majority recognizes, the proof that the highly inflammatory pre-trial publicity constituted a clear and present danger to Turner’s right to a fair trial in Rockdale County would not support the entry of the new closure order. After changing venue, the trial court was authorized to order closure only upon clear and convincing proof that there was no other alternative to guard against a clear and present danger to Turner’s right to a fair trial in Hall County. Because the trial court was aware that the criminal proceedings against Turner already had been a source of highly inflammatory pre-trial publicity in Rockdale County, it is understandable that it would conclude that the change of venue would not obviate the need for closure and that the lurid details of this particular case would continue to be sensationalized by the Hall County media. As the trial court noted, the requirement that Turner actually be exposed to highly inflammatory pre-trial publicity in Hall County could result in “a cycle of venue changes in an effort to stay one step ahead of prejudicial media coverage.” Accordingly, I cannot agree with the majority that the trial court’s entry of the closure order now on appeal “clearly violates this Court’s holding in Lumpkin.” To the contrary, I find that the trial court’s comprehen
I would hasten to add, however, that our holding does not prohibit the trial court from ordering closure at some future date. R. W. Page Corp. v. Lumpkin, supra at 580 (5), fn. 11, provides that “it would be less burdensome for the movant to justify the closure motion in a pre-trial hearing due to the absence of some alternatives at this stage of the proceedings.” This holding in Lumpkin must mean something and is not without relevance in this case. Accordingly, if the perceived threat of highly inflammatory pre-trial publicity in Hall County actually comes to pass, either or both parties could file a new motion to close proceedings. At that time the trial court would be authorized to consider such a motion and to grant it if “clear and convincing proof’ is produced showing that closure is the only means by which “a clear and present danger” to Turner’s right to a fair trial in Hall County could be avoided.
I am authorized to state that Justice Thompson joins in this special concurrence.
Concurrence Opinion
concurring.
Because the public’s First Amendment rights, as well as the defendant’s right to a public trial, are the very preconditions to our free society and to public confidence in the functioning of our government, courts must guard them with jealous attention and view with suspicion all attempted encroachments thereof. In fact, we must do our very best to hold fast to the values embodied by the First Amendment even in extreme and painful cases, because we cannot suspend it and remain all that we strive to be. The majority, by accepting nothing less than strict compliance with the requirements of R. W. Page Corp. v. Lumpkin,
McIntyre v. Ohio Elections Comm., 514 U. S.__(115 SC 1511, 1524, 131 LE2d 426) (1995), citing Justice Holmes’s dissent in Abrams v. United States,