STATE ex rel. THE HERALD MAIL COMPANY, a corporation v. THE HONORABLE JOHN M. HAMILTON, Judge, etc., et al.
(Nos. 14799, 14837)
Supreme Court of Appeals of West Virginia
Decided June 10, 1980.
103
Steven A. Askin for Leach.
Oscar Bean, Pros. Atty., for respondent.
James R. Snyder for amicus curiae The Associated Press, et al., etc.
DiTrapano, Jackson & Buffa and Rudolph L. DiTrapano, for amicus curiae Daily Gazette Co.
MILLER, JUSTICE:
In this original writ of prohibition, the relator, The Herald Mail Company [Herald Mail], seeks to prohibit the enforcement of a closure order entered by the Circuit Court of Hardy County on February 27, 1980. The effect of this order was to bar members of the public and press from portions of a scheduled pretrial hearing in a murder case in which Robert M. Leach was the defendant.
Mr. Leach‘s counsel had filed with the trial court, in addition to a number of pretrial motions, a closure motion which in effect indicated that the defendant was willing to waive his right to a public and open pretrial hearing in order to avoid publicity that might jeopardize his right to a fair trial. Herald Mail, through one of its reporters, became aware of the closure motion and objected to it. The trial court permitted Herald Mail‘s counsel to appear and argue against the closure motion at a hearing on February 27, 1980.
At this hearing the court refused to order closure on the defendant‘s motion for bail, motion for bifurcated trial, motion in limine to preclude the State from referring to the name of the second murder victim during the trial involving the first murder victim, and defendant‘s motion to quash and abate the indictment.
However, the court did grant the closure motion in regard to “the admissibility of alleged statements made by the defendant to third parties and the evidence of
It is this portion of the court‘s order granting closure which Herald Mail seeks to prohibit. At the February 27 hearing, of which a record was made, it was acknowledged by the trial court that “[t]here has been no undue publicity, and what has transpired in the community to date has been reserved, conservative and very proper.” Defense counsel conceded at the hearing that as far as he could tell, “the press in this county ... [has] ... done nothing to prejudice Mr. Leach‘s right to a fair trial.” Significantly, no facts were introduced at the hearing to show what publicity had been given to the case. Defense counsel did not specify how his client would be prejudiced if the suppression hearing were kept open.
Upon the joint motion of the prosecutor and the defense attorney, the court directed, by an order of February 6, 1980, that all the State‘s disclosures in response to defense discovery motions be sealed. At the February 27 hearing, the prosecutor and defense counsel agreed that the court could review this material to assist it in its ruling on the closure motion. The sealed disclosure material essentially consists of a lengthy written report of the State Police investigation of the murder which contained summary statements of witnesses, including those of several witnesses with whom the defendant allegedly discussed the crime after its commission.
Herald Mail urges that under
I
Herald Mail recognizes that the claim it advances here was rejected by a sharply divided Court in Gannett Co. v. DePasquale, 443 U.S. 368, 61 L. Ed. 2d 608, 99 S.Ct. 2898 (1979), and for this reason it seeks a resolution based on our State Constitution. The majority in Gannett held that the public has no constitutional right under the
The crucial disagreement between the majority opinion and the dissent in Gannett involved whether the common law rule of open proceedings, applicable to both civil and criminal matters and requiring access by the public, had been incorporated into the public trial provision of the
“Not many common-law rules have been elevated to the status of constitutional rights. The provisions of our Constitution do reflect an incorporation of certain few common-law rules and a rejection of others....” [443 U.S. at 384-85, 61 L. Ed. 2d at 624-25, 99 S.Ct. at 2908].
The majority‘s conclusion with respect to the
“The history [of the Sixth Amendment] totally fails to demonstrate that the Framers of the Sixth Amendment intended to create a constitutional right in strangers to attend a pretrial proceeding, when all that they actually did was to confer upon the accused an explicit right to demand a public trial. [Footnote omitted]. In conspicuous contrast with some of the early state constitutions that provided for a public right to open civil and criminal trials [footnote omitted], the Sixth Amendment confers the right to a public trial only upon a defendant and only in a criminal case.” [443 U.S. at 385-87, 61 L. Ed. 2d at 625-26, 99 S.Ct. at 2908-09]. [Emphasis supplied].
The Gannett dissent found that these early state constitutional provisions for open proceedings, together with the common law requirement of public access to trials, did give a right of trial access to the public and press under the
It may thus be said that the Court was unanimous in its recognition of the common law rule of open proceedings embodied in many state constitutions, but divided on the issue of whether this rule was imported into the
In the present case, we believe that our counterpart to the
Read literally,
We have not had occasion to explore the public trial right under
“Under Section 14 of Article III of the Constitution of West Virginia, it is mandatory that one charged with the commission of a crime be afforded a public trial.”
“One charged with a crime is not afforded a public trial within the meaning of Article III, Section 14, of the Constitution of West Virginia when his trial on said charge is held in the office of the county jailer.”
The defendant in Varney sought a public trial, and this Court thus did not decide whether
As Gannett recognized, the English common law rule of open proceedings became embodied in colonial charters and state constitutions in America. The 1677 New Jersey Constitution—or, more accurately, the Charter or Fundamental Laws, of West New Jersey—provided in Chapter XXIII the right of the public to attend trials.7
The uniform interpretation of the mandate that the courts “shall be open” by those state courts called upon to construe the provision in their constitutions is that this language confers an independent right on the public to attend civil and criminal trials, and not simply a right in favor of the litigants to demand a public proceeding. See, e.g., Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966); Lecates v. Lecates, 38 Del. 190, 190 A. 294 (1937) (dictum); Brown v. State, 222 Miss. 863, 77 So.2d 694 (1955); In re Edens, 290 N.C. 299, 226 S.E.2d 5 (1976); E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955); Cohen v. Everett City Council, 85 Wash.2d 385, 535 P.2d 801 (1975); State v. Holm, 67 Wyo. 360, 382-85, 224 P.2d 500, 508-09 (1950); cf. United States v. Buck, 24 Fed. Cas. 1289, 1293 (No. 14,680) (E.D. Pa. 1860); Johnson v. Simpson, 433 S.W.2d 644 (Ky. 1968); State v. Copp, 15 N.H. 212 (1844). Typical of the reasoning of these courts is E. W. Scripps Co. v. Fulton, supra, where the public interest was stated as follows:
“It can never be claimed that in a democratic society the public has no interest in or does not have the right to observe the administration of justice. The open courtroom is as necessary and important in the interest of supporting the administration of justice as in the protection of the rights of a member of the public when on trial for a criminal offense.”
“[T]he defendants can not waive the right of the people to insist that the proceedings of the courts, insofar as practicable and in the interest of the public health and public morals, be open to public view....” [100 Ohio App. at 162, 167, 125 N.E.2d at 900, 903].
On related issues, we have recognized the public‘s interest in the administration of our criminal justice system. In State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), in upholding the practice of allowing a private prosecutor to assist the official prosecutor in a case, we adverted to the public‘s interest in criminal trials by stating that “there may be those occasions when the employment of a private prosecutor would satisfy the public‘s concern that a given case not be given perfunctory treatment.” [261 S.E.2d at 58].
In State ex rel. Goodwin v. Cook, 162 W.Va. 161, 248 S.E.2d 602, 604 (1978), we held, in part, that citizens and
In State v. Gary, 162 W.Va. 136, 247 S.E.2d 420, 421 (1978), we held that before a trial court can deny bail or set bail at a given amount, it must hold a hearing and furnish a written statement of its reasons. We stated that the hearing and statement of reasons had a larger purpose:
“[T]o provide the parties and the public the opportunity to realize that there is a careful, reasoned and judicious decision making process at work on an important judicial issue....”
Once the right in the public to attend the trial is acknowledged, the same right must be accorded members of the press. The press not only constitutes a part of the general public, but it is well established that it operates in a special capacity as an agent or surrogate for the general public in its gathering and dissemination of information. This special status rests on a realistic recognition that it is impossible for any meaningful number of the general public to abandon their daily pursuits to attend trials, and a further acknowledgement that the press has valuable expertise in ferreting out information difficult for the general public to obtain. This surrogate relationship was aptly expressed in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92, 43 L. Ed. 2d 328, 347, 95 S.Ct. 1029, 1044-45 (1975):
“[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations.
Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. See Sheppard v. Maxwell, 384 US 333, 350, 16 L Ed 2d 600, 86 S Ct 1507 (1966).”
We have echoed these sentiments in State ex rel. Daily Mail Publishing Co. v. Smith, 161 W.Va. 684, 248 S.E.2d 269, 272 (1978), aff‘d, 443 U.S. 97, 61 L. Ed. 2d 399, 99 S.Ct. 2667 (1979), by stating that “a robust, unfettered, and creative press is indispensable to government by free discussion and to the intelligent operation of a democratic society.” Other courts have used the same reasoning in according a right to the press equal to that of the general public to attend criminal proceedings. E.g., Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966); Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 423 N.Y.S.2d 630 (1979); New York Times Co. v. Starkey, 51 A.D.2d 60, 380 N.Y.S.2d 239 (1976); E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955); Cohen v. Everett City Council, 85 Wash.2d 385, 535 P.2d 801 (1975).
However, it cannot be doubted, and relator here recognizes,14 that there are limits on access by the public and press to a criminal trial. In the area of criminal trials, a long-established constitutional right to a fair trial is accorded the defendant. This principle is found in the Due Process Clause of the
Inherent in this question is our recognition that the term “trial” cannot be taken in its limited sense as that portion of the criminal proceeding which begins with the empanelling of the jury. This narrow view was accepted by the majority in Gannett but rejected by the dissent for reasons that we find compelling. The Gannett dissent made the practical observation that in many criminal cases, pretrial hearings may determine vital issues which can lead to the disposition of the entire case without a jury trial. Typically, pretrial hearings will involve claims relating to the voluntariness of the defendant‘s confession or matters involving the validity of warrants and evidence obtained thereunder that may be critical in proving the state‘s case.
In many instances, a pretrial hearing is like a trial without jury, since the trial judge is required to hear evidence and apply the law to the facts. Witnesses are sworn and the entire process is adversarial. The proceedings bear some analogy to other pretrial stages in a criminal case where the presence of the public and press has historically been allowed, such as in a preliminary hearing.
It should also be remembered that in many suppression hearings the issue is not primarily the substantive content of the evidence to be suppressed, but rather the procedural methods applied by law enforcement officials in obtaining the questioned material. Consequently, in
In the present case, an issue raised was the mental condition of the defendant at the time he gave the third party incriminating statements. It is difficult to perceive how evidence offered at a pretrial hearing relating to his mental condition could create any substantial prejudice that would not exist if presented at trial. The fact that the defendant may incur prior to trial some adverse consequence, such as public disclosure of a possible defense, is not a sufficient reason to close the hearing.
It is but a truism to observe that in the ordinary criminal case, neither the public nor the press may have any great interest in access. The problem will arise in the more controversial case, or in a case of great public moment, where the rights of the accused should be most zealously guarded. Yet, even in these cases, access cannot automatically be denied, even though prosecution and defense counsel may agree to its denial, for they cannot be the final arbiter of the right of the public and press to have access to the administration of justice.
In setting guidelines, we return to the primary purpose of closure, that of protecting the defendant‘s right to a fair trial, one free of widespread hostile publicity, so as to ensure him an unbiased jury. Absent a showing of widespread adverse publicity, the trial court should not grant a motion to close the hearing. Even where a clear showing is made as to widespread hostile publicity, this cannot end the inquiry. On a closure motion, the ultimate question is whether, if the pretrial hearing is left open, there is a clear likelihood that there will be irreparable damage to the defendant‘s right to a fair trial. Factors bearing on the issue of irreparable damage include the extent of prior hostile publicity, the probability that the issues involved at the pretrial hearing will
As in so many areas of the law where both parties possess important rights, the task of setting the entire contour between their competing rights cannot be done by a single formula. The history of the law teaches that the wiser approach is to prescribe that course which can be discerned within the confines of the facts of the particular case. Few of us are endowed with the Einsteinian ability to formulate universal rules. We must be content to depend on the good judgment of a responsible press and our competent trial courts to apply this rule justly and fairly to each particular case.
In the present case, the defendant‘s motion for closure should not have been granted. The record fails to demonstrate facts which would compel a conclusion that widespread publicity prejudicial to the defendant existed. In fact, as earlier noted, both the trial court and defense counsel conceded the absence of prejudicial publicity. In addition, the record does not contain any facts or claim which would demonstrate how the defendant would suffer irreparable damage to his right to a fair trial if the proceedings were open to the public and press.
We are not disposed to grant an absolute writ of prohibition, since it was not possible for the trial judge to have anticipated the views of this Court in what can only be characterized as a developing area of the law. We, therefore, issue a moulded writ, prohibiting the enforcement of the trial court‘s February 27, 1980, closure order, but enabling the trial court to hold a further hearing on closure, if the defendant so requests, in light of the principles set out herein.
Upon the holding of such further hearing and entry of an order in consonance with this opinion, this writ shall be dissolved.
Writ as moulded awarded.
MCGRAW, JUSTICE, concurring:
The majority deserves accolades for their recognition that our state Constitution guarantees the public and thereby the press a right of access to judicial proceedings. The error in its well-crafted opinion is that it limits, albeit in narrow circumstances, the people‘s right of such access.
As the majority opinion notes, the United States Supreme Court in Gannett v. DePasquale, 433 U.S. 368, 61 L.Ed.2d 608, 99 S.Ct. 2898 (1979), found no right of public access to pretrial criminal proceedings. This finding was essential to the Gannett holding if the Court was to avoid firmly ruling on the delicate issue of conflicting constitutional rights. This Court, however, finds a state constitutional right of access but unnecessarily places it in conflict with the right to a fair trial.
The public is entitled to know how its government operates in order to secure it against “the danger of maladministration” spoken of in
Our Bill of Rights does not anticipate superior and inferior classes of rights and it is improperly, even unlawfully presumptuous for us to suggest that the abridgment of one is necessary to the preservation of another.