SOUTHEASTERN NEWSPAPERS v. State of Ga.
265 Ga. 223
Ga.
1995
Check Treatment

*1 Jr., Sutherland, Brennan, Lester, L. Asbill & Charles T. Richard Robbins, amicus curiae.

S94A1440. SOUTHEASTERN NEWSPAPERS CORPORATION

v. STATE OF GEORGIA еt al. (454 452) SE2d Justice. Carley, Appellees Fleming Cedric are the defendants Brown and Maurice by appellee they filed pending capital a murder case. Joined op pre-trial proceedings. motions for closure of the The motions were (South posed by appellant Newspapers Corporation Southeastern eastern). only pre granted The trial court closure as matters, addressing evidentiary finding that extensive trial motions im danger rendering it prejudicial and created a severe possible impartial jury highly to securе a fair and and that sensitive potential jurors. The prejudicial might and matters be disclosed to penalty being sought, trial court also noted that that, the death and therefore, extraordinary preserve ap used to measures must be Thus, lim pellees’ right to a fair trial. the trial сourt determined that necessary remedies set forth ited closure was because the alternative (1982) Page Lumpkin, Corp. R. W. 249 Ga. 576 would be insufficient. All that occurs in the closed was or press public dered to be and made to the and transcribed available jury sequestered. when the has been It is from these closure orders brings appeal. that Southeastern this

Georgia protective concept open law is more of the courtrooms generally requires than federal law the criminal itself consequent open press and all its hearings оn motions be to the public

unless the or defendant other movant is able to demonstrate by proof’ convincing closing record “clear and hearing press public by to the is the means present danger” which a “clear and to his to a fair trial or other asserted cаn be avoided. (4). However,

Lumpkin, supra at 579 it is “less burdensome for the pre-trial hearing movant the closure motion due to the stage proceedings.” absence of some alternatives this of the (5), Lumpkin, supra primary at 580 fn. alternative to closure pre-trial stage sequestration jury. is unavailable at the stage Other at this alternatives to closure either are unavailable or are penalty pros- rendered less effective pect a death case as a result of the pursuant of interim review to OCGA 17-10-35.1. After review- § by to find record, was аuthorized hold that the trial court ing we evidentiary hear- proof” closing pre-trial “clear and penalty case is the public this death ings press to the Brown present danger” a “clear and means Furthermore, avoided. Fleming to a fair and trial can be “narrowly to avоid this orders drawn” find that the closure we *2 supra at 580 rights. Lumpkin, See danger to these Benham, concur, Judgment except All the Justices affirmed. J., Hunstein, JJ., Sears and who dissent. P. Justice, dissenting. Hunstein, Brown, Liberty in Fleming, and Jenkins are under indictment robbery County charges arising out of the armed and death of a on рenalty against is seeking Riceboro man. The State the death Brown, by Fleming, three defendants. On motion and the articles, solely publication of the trial based on evidentiary by all court closed on motions filed ‍‌​‌‌​‌‌​‌‌‌​​​​‌​​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌‌‌‌‌​‌​​‌‌​‍articles, Fleming.1 majority reviewing Brown and After these two proof’ support holds there convincing was “clear and to the trial pretrial evidentiary court’s of all determination total closure by present danger’ “the to means ‘clear and right Fleming public of Brown and to a fair and trial can be proof’ avoided.” Because I find “clear no such presumption openness record that would overcome the of of criminal alternative, proceedings proper closure here I because is not a dissent. Supreme U. S. recognized rights guaran-

The Court has by Amendment, Fourteenth, conjunction teed the First with the share purpose

a common core assuring of freedom of communica- relating tion on matters functioning government. to the of Plainly it single any aspect gov- would be difficult to out of higher importance ernment of people concern and than the manner which criminal trials are conducted. Newspapers Virginia, 555, (III) (A) (100 Richmond v. 448 U. S. 2814, 973) (1980). Hence, SC 65 LE2d that Court has determined that press qualified “the have a First Amendment to at Georgia, 39, tend a criminal v. trial. Waller S. 44-45 [Cits.]” (II) (A) (104 31) (1984). qualified right SC 81 LE2d This of ac proceedings applies cess to criminal Press- heаrings. to by Fleming The trial court’s closure orders affected 36 of 108 motions filed and 27 of the 54 motions filed Brown. (IV) 1, 13 California, Court Superior v. 478 U. S. Enterprise Co. parte Ex Consolidated 1) (1986). (A) (106 See also 92 LE2d SC 1992). has made (Ala. Supreme Court Pub. The U. S. 601 S2d 423 clear that while cases to open may give way certain to an interests, such as the defendant’s rights or

other . rare . . . . . circumstances will be fair trial [s]uch special with care. of interests must be struck balance Cojab, States v. Waller, 45. Accord United supra, 467 U. S. at (2nd 1993). making “applicable rules” The F2d Co. Su- Press-Enterprise determination, id., set forth such a perior California, Court SC 78 LE2d 464 U. S. 501 (1984): only by an openness may overcome presumption be is essential findings that closure overriding interest based narrowly tailored serve preserve higher values and along with The interest is to be articulated interest. reviewing court can dеtermine findings specific enough that a *3 properly was entered. whether the closure order Page Corp. Lumpkin, v. (II) (B). R. W. 249 Ga. 576 Id. 510 at Accord requirements 815) (1982), comparable and setting forth between by agreement cautioning compliance “cannot be avoided public should be the media and the state and the defendant Cojab, supra at 1408. hearing.” from the Id. at 580 barred If the accused to a right the interest asserted is the spe- if trial, hearing shall be closed fair the that, first, there ‍‌​‌‌​‌‌​‌‌‌​​​​‌​​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌‌‌‌‌​‌​​‌‌​‍is a demonstrating findings cific are made fair right to a probability that the defendant’s substantial pre- would prejudiced by publicity that closure trial will be and, second, cannot alternatives to closure vent reasonable rights. adequately protect the defendant’s fair trial [Cits.] Press-Enterprise, supra, 478 U. S. at to establish a “substantial proof this case

The adduced preju- will be right to a fair trial probability” that the defendants’ articles, April diced, id., both dated consists of two previous day’s regarding the published newspapers, two A nine- Jenkins. by co-defendant hearing pretrial on motions made large reported the in the Coastal Couriеr teen-sentence-long article rulings made on accurately detailed the presented, of motions number against charges motions, disposition of discussed the certain of those crimes, upcoming two others the the mo- involved mentioned Fleming. Brown also tions The artiсle referenced “any sought defense motion statements of admission or confes- sion,” reported attorney responded that the district had that the state pertaining charged “had two statements from to” the defendants crime, and on given related information was who mаde “[n]o alleged The reporter statements.” Coastal Courier who wrote the arti- hearing cle stated without contradiction a closure that she ver- had attorney published. ified her with the it article district before article in twenty-eight-sentence-long Morning Savannah News (owned by appellant) essentially contained the same information but characterized inaccurately “statements” as “confessions” and trial judge attorney reflected that the district had character- ized the statements as confessions. The two articles do not reflect what merely report accurately statements contain but statements made police were officer in in- prison Florida and a mate. No other evidence was adduced.2

It is true that higher ranks than the ac- “[n]o trial,” Press-Enterprise, (II) cused to a fair supra, 464 U. S. at 508 (B), and that protecting the burden of accused’s to a fair prejudicial trial from the effect of squarely falls Maxwell, Sheppard v. (VII) (86 trial courts. 384 U. S. 333 SC 600) (1966). LE2d One need look at the facts set in the forth case, Sheppard, Sheppard 338-349, Sam murder S. at Hauptmann, State v. Lindbergh-baby cаse, kidnapping A 809 (N.J. 1935), Manson, People v. case, the Charles Manson murder (2nd App. 1976), Cal. 3d Dist. surrounding Smith, trials of Noriega, Kennedy Manuel Simp- William and O. J. son, to and appreciate decisive, understand the need for con- creative trol a trial court over a increasingly prone media to treat crime and its criminal justice as a form popular aftermath entertainment. See, e.g., Corp. Foxman, News-Journal (11th 939 F2d 1499 1991) (media barrage included two depicting televised broadcasts re- murders); Note, enactments of the see also Prejudicial Publicity Sur- rounding A Criminаl Trial: aWhat do court can to ensure a fair *4 in Circus,” trial the of face a “Media 26 U. L. Suffolk Rev. 1063 Sheppard, See also 384 (noting U. S. at 362 the increas- prevalence ing prejudicial publicity). However, of one need com- 2 Although during hearings counsel defense both made rе statements to the trial court garding publicity the extensive the case received which counsel had defense stated would be presented support venue, change to the court in of motions for of no evidence was adduced at ruling Although and the court trial resеrved its on the venue motions. defense incorporated by motions for closure in reference exhibits to motions limine and motions for change venue, of no exhibits to such are attached those motions. in in to the facts the case sub pare the facts set forth these cases not presented with one of recognize that the trial court was judice to openness proceed- criminal exceptions to the rule of of those “rare” Press-Enterprise, supra, 464 U. S. at 509. ings. in case does not contain clear record this ‍‌​‌‌​‌‌​‌‌‌​​​​‌​​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌‌‌‌‌​‌​​‌‌​‍to fair trial present danger defendants’

proof that a clear and to evidentiary hearings. justify would closure of existed that articles; the con- consists of news The extent of the reporting, basically accurate two news articles reflects tent of the emotionalism; articlе was by speculation or neither unembellished or newspapers; neither article discussed prominently featured statements; there was no evi- any set forth intimated details Liberty disseminated to the dence as to the extent the articles were A reveals that County review оf this evidence population.3 continue, if creates a publicity, permitted to ruling court’s that “this impartial impossible to secure a fair and danger severe it will be County,” nothing more than jury this amounts to for [defendants] under Press-En- . . . insufficient closure a “naked assertion S., supra].” terрrise, Press-Enterprise, S., supra] U. [478 [464 (6th 1989). Memphis In re Pub. Cir. 887 F2d 648-649 1994). Simone, (IV) (3rd States v. United 14 F3d 833 justifying be seen as To the extent these two news articles can any response by the trial court, clearly inappropriate for total it was alternatives, employed,4 when there remain less drastic closurе to be searching dire of thorough and voir change such as of venue and a However, prospective jurors. Lumpkin, supra at n. 8. as to venue, I note that from the remedy change of would alternative of a change would not particular appeal, in this a venuе state of the record would not establish justified be in that these two articles See Gibson inherently prejudicial. setting of the trial was 781) (1991) (three State, 261 Ga. (2) (404 news articles SE2d change-of- ‘barrage’ pretrial publicity” not amount “[do] Chancey v. see also presumption-of-prejudiсe purposes); venue (5) (349 717) (1986) (evaluating impact Ga. community, size of the light of such factors as the media circulation, prominence of the the number of articles and their content). remedy of a thor- reports, their As to the alternative dire, prospective jurors I note that ough searching voir would newspaper’s Wednesday. According appellant brief The articles circulated on a were Liberty County Court, Monday-through-Friday is circulation to this its total combined Census, 42, p. 52,745. 2,501. Liberty County population OCGA Vol. See 1990 has a transcripts Although prоvided once the the trial court for release of the unjustified jury sequestered, of access restriction I find this fails to cure (V). Simone, supra States v. for the reasons set forth in United *5 “totally ignorant

need not be of the facts and issues involved” Chancey, A qualified jury. supra case to be to serve on a at 425 thorough searching identify pro- voir dire would suffice to those “ spective opinions jurors guilt who had ‘formed fixed as to or inno- articles,’ reading such cence of the accused from id. [cit.]” 429-430, thereby disqualifying serving jury. at them from Ac- Manson, supra noting cord fact that a case receives enormous does not

[t]he itself establish error does nor conceded “massive” automatically prejudice. Exposure pub- translate into . . . licity impossible alone does not jurors perform make it for obligation. their

(Footnote omitted.)

“People in open sоciety an infallibility do not demand from their institutions, accept they but it is difficult for them to pro- what News, Richmond observing.” hibited from 448 U. S. at 572. Hence, closure proceeding of a criminal should be the last resort of a trial court rather than the parte Birming- Ex response. first ham News (Ala. 624 S2d App. (“[а]ny Cr. court extremely ‍‌​‌‌​‌‌​‌‌‌​​​​‌​​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌‌‌‌‌​‌​​‌‌​‍should be reluctant to order the any closure of criminal proceeding”). Because the facts this case do not closure of evidentiary hearings press, I would re- verse the trial court’s ruling.

I am authorized to Presiding state that Justice Benham and Jus- join Sears tice this dissent. February

Decided Reconsideration denied March Hull, Towill, Barrett, Norman & Ellington, James B. James W. Kimmell, Jr., Webb, Mark Jr., M. J. Berry, Robert L. appellant. for

Dupont Cheney, K. Attorney, Bowers, District Michael J. Attor- ney General, Lloyd D. Murray, Schiavone, Jackson & Terry G. Jack- son, Ray Smith, Walker, C. Peel, David C. Hal Branan, T. Jon G. appellees. Canfield,

Peter C. Hardy, III, Maxine Ed S. Sell Gerald R. Weber, Jr., Porter, Stephen ‍‌​‌‌​‌‌​‌‌‌​​​​‌​​‌​​​‌‌‌​​​‌​‌‌‌​​‌‌‌‌‌‌​‌​​‌‌​‍D. Major, Brown, William H. William B. Rawls, James C. amici curiae.