*1 Clyde (Herald Tallman State Vermont v. Delbert Valley Publishing Corp. Assoc., Satellite & Gannett intervenors-appellants) Network, Info. A.2d
[537 422] Nos. and 84-461 84-341 Allen, C.J., Hill, Peck, Hayes,1 Present: Gibson and JJ.
Opinion September Filed Reargue Motion to October Denied Hayes present participate argument Justice at oral but in the deci did not sion. *2 Shea, Hemley Robert and Dennis R. Pearson of Gravel B. Burlington, Intervenors-Appellants. for Jr., Hinton, Morris, Henry General, Walter M. Defender Appellate Defender, Montpelier, Defendant-Appellee.
Hill, presents J. This case with vexatious escalating problem balancing a defendant’s Sixth impartial against public’s jury claimed proceedings. First Amendment of access to length importance We write at of this issue and because properly because we believe that the trial failed to balance court competing these concerns. case, Tallman, arraigned on Delbert arraignment, charges May
homicide At the defend- cause, accompanied ant asked that the which affidavit State, the charging by the be sealed. He also information filed requested participants all enforcement officers law making any public from restricted comments about the case on already matters granted record. The court requests in protect order to a fair trial. appellants, Association, Inc., Herald Gannett Satellite In- *3 Network, Inc., Valley Publishing Corporation, formation and filed motions for relief the intervention and for from two orders. The permitted appellants pur- court the to intervene for the limited pose challenging prior hearing court’s A was at the orders. held presented only legal arguments which no evidence and was were by parties. appellants’ made the the re- court then denied quest for and relief reaffirmed its earlier orders. suppress
A by motion to filed later the defendant. The de- parts suppression hearing, fendant moved to close of the as mat- subject ters within the sealed to affidavit were of the motion suppress. Appellants objected, court held a noneviden- tiary hearing ruling before on motion It for closure. ultimately suppression concluded that references made hearing potentially suppressible statements, public, to if made prejudice jurors thereby upon would infringe de- rights Accordingly, fendant’s par- a fair trial. the court ordered tial hearing, excluding closure of the from any point “where direct reference is to made any opinion or statement statements of the defendant and appellants based on that or no- statement statements.” The filed appeal Court, challenging tices each this district orders, appeals court’s later were consolidated. here, question issue press/fair passing on free Before question re- The first preliminary matters must addressed. two case, is standing in and the second this lates to the intervenors’ ac- Tallman’s moot whether their claim rendered quittal. nonparty
First,
inter-
explicitly that a
has
held
this Court
not
ain
claim
standing to
a collateral constitutional
venor has
raise
Ellison,
Association, Inc. In Herald
proceeding.
criminal
(1980),
peti-
529, 531,
stated that a
419 A.2d
we
Vt.
324-25
rais-
extraordinary
proper legal vehicle” for
was “a
tion for
relief
nonparty
claim,
implying
a
does
ing the
collateral
thus
underlying
in the
standing
directly
such a claim
have
raise
S.,
In re J.
We hold direct legal ensuring media’s appropriate is an vehicle for news Co. Gannett v. DePas timely voice is in a manner. See heard quale, (1979) (Powell, J., Upon concurring). or to seal affidavits of cause defendant’s motion suppression hearing, contemporaneous asser to close a press public’s First of access tion of the height public’s represented will at the assure that interest yes public concern, . . . crowd news of before events “[l]ater Id. at 442 n.17 terday’s proceeding out of the view.” (Blackmun, J., dissenting part). It concurring however, acknowledgement emphasized, should be that our raising purpose media’s to intervene for a collateral *4 As this very standing. constitutional claim limited affords Association, Herald 531, A.2d at Court in 138 Vt. at stated 325, any implication nonparties can “we not do countenance authority legal without allowed status within law be pending prosecution.” criminal acquittal
It must also be Tallman’s noted that defendant appeal underlying proceeding renders this techni cally moot; normally, jurisdiction re- our this fact would defeat appellants’ view exception claims. An to the mootness doctrine is “ however, recognized, ‘capable repetition, for cases that are ” H., In re S. yet evading 278, 281, 148, review.’ 141 Vt. 448 A.2d (1982) Wade, Roe v. (quoting 113, (1973)); 410 U.S. see Brooklier, also United States v. (9th 685 F.2d Cir. 1982). applicability exception dependent of this on the sat- two-part isfaction of a test established the United States Su- preme Bradford, Court in Weinstein v. (1975): 423 U.S. “(1) the challenged action in its duration too short to [must be] fully litigated (2) prior expiration, to its cessation or there expectation a reasonable complaining [must same be] party subjected again.” to the same action [will] parts of the Weinstein test are met here. First,
Both
an order
closing
pretrial hearing
its nature short-lived.” Nebraska
“is
Stuart,
Press
Association
427 U.S.
Conse-
quently,
there is
appellate
little
likelihood
review of the chal-
lenged
expires. Second,
order before
reasonably
it is
to be ex-
pected
appellants
subjected
will be
to similar closure orders
Gannett,
fact,
the future. See
I. United recently passed States Court on the constitutionality of public a California governing statute preliminary hearings.2 Press-Enterprise Superior Co. Court California, (1986) (Press-Enterprise S. 106 Ct. 2735 II), the Court complementary identified two considerations must be examined in involving cases a claimed First Amendment right of first, access to criminal proceedings: the Court considered place process whether historically open had been to the press general public,-id. 2740; second, S. Ct. at inquired whether played “significant posi- provided, pertinent part: The statute [U]pon request finding by magistrate of the defendant and a necessary protect exclusion of the in order to impartial trial, magistrate to a fair and shall exclude from the examina- every person except necessary by tion legislature]. deemed to be [those *5 question.” process in functioning particular in the
tive role
question passes
Thus,
proceeding
particular
Id.
“[i]f
logic, a
First Amendment
experience
qualified
tests of
9,
The Court
Id.
A.
distinguishable from the
Although suppression hearings are
California,
preliminary probable
hearings conducted
cause
addressing
have
that the
majority of
the issue
concluded
courts
proceedings.
public possesses qualified right
access to such
Bell,
A.D.2d
N.Y.S.2d 432
Associated Press v.
See
Kammeyer,
(1987);
&
Co. v.
Minneapolis Star
Tribune
(Minn. 1983);
Inc.
Newspapers,
Richmond
N.W.2d
Commonwealth,
574, 585-86,
(1981);
222 Va.
281 S.E.2d
Wifvat,
Iowa Freedom
see also
Council
Information
1983)
(Iowa
(recognizing
state constitutional
N.W.2d
public
pretrial proceedings). Suppression hear-
access to
many
pretrial
ings,
procedures,
like
modern
have no historical
written,
fact,
counterpart. In
Amendment was
the Sixth
“[w]hen
that,
century
have con-
for more
no one could
than
after
suppress
exclusionary
pretrial
to
ceived that
rule and
motions
Gannett,
part
jurisprudence.”
would
evidence
of our criminal
C.J.,
adoption
(Burger,
concurring).
Since the
395-96
rule, however,
exclusionary
suppression hearings have be-
fact,
jurisprudence.
fixture
one court
come a
in our criminal
“pretrial suppression
specifically
considered
have
the issue
stated:
hearings
important
justice system
as
as
are
criminal
our
itself,
public
view the
without
to allow
knowledge
previously
make
place
of what has taken
would
Newspapers, 222
right of access ...
Richmond
a hollow one.”
922;
Wifvat,
Va. at
281 S.E.2d at
also
ceeding
importance
place
of substantial
during
that takes
a crimi-
prosecution.” Gannett,
(Blackmun, J.,
nal
A always regarded has been as the hand- administration, maiden judicial especially of effective in the press publish . . . simply field. infor- does mation guards against miscarriage about trials but justice by subjecting police, prosecutors, judicial processes public scrutiny to extensive and criticism. Maxwell, Sheppard v. 384 U.S. repre hold, therefore, public members
We of access to media have of the news sentatives hearings the First Amendment. under B. cause, probable filed connection
Exactly when affidavits is a information, public documents charging become with the question, slightly however. different Communications, Inc., 589, 597 v. Warner In Nixon (1978), the courts “It is clear Court stated: copy inspect country recognize general documents, judicial records and docu including records and public “to of the important This enables members ments.” liti appreciate fully significant events at issue the often Grad Newman system.” gation workings legal and the 1983) dick, (citing United States (11th Cir. 696 F.2d 1981)). Criden, (3d F.2d Cir. inspection by court, are
Prior affidavits of cause agency They on individual or com- records. are “maintained [an] investigation police,” .. . piled course criminal. . . of a *7 they specifically from the definition of are excluded 317(b)(5). by a is reviewed record. 1 V.S.A. After an affidavit § court, This governed by 4 V.S.A. 693. document is § relating in dis- “papers in to causes section states court, , be . . records of the shall together trict court . with the by inspection parties interested subject and examination to Here, court, considering . . . those causes .” the district affidavit, appellants to granted whether this section access superior 652(4) court provides noted that 4 V.S.A. for access to § by “any person,” provides to records while 4 V.S.A. access § district court records only “parties It deter- to interested.” then par- “parties only mined that the words interested” included disagree. ties to the lawsuit. We only
A “parties includes determination that interested” parties complete to to the lawsuit would to denial access lead ¿nyone except parties. all This would district court records to contrary accepted public’s generally practice as well as. right to court records constitutional common law short, in proceedings. we believe that reasonable terpretation “parties pub- is one that includes the interested” that, court, by lie. We hold after it has been reviewed an affida- vit cause becomes a document. say temporarily seal
This not to that a court cannot upon affidavits of the of ad examination likelihood publicity right verse and its effect on accused’s great delayed fair trial. Since access is not as as that “the harm Co., Newspaper In re Globe access,” denied F.2d (1st 1984), pending Cir. permitting temporary restrictions a hear ing provides balancing on the matter a means the counter vailing must, however, interests involved. Such be care an order fully rights drawn to recognition afford the maximum public. both the defendant and the
II. To recognize right pretrial proceed- a constitutional of access to Globe ings and right. documents absolute create an Newspaper Superior County, Co. for Norfolk Press, (1982); also Associated 128 A.D.2d see especially N.Y.S.2d at 433. This is true when the defendant’s impartial jury might Sixth jeopardized by prior public disclosures to trial. long recognized
The United States Court “has publicity ability that adverse endanger can of a defendant Gannett, reason, receive a fair For trial.” U.S. judges duty have “an affirmative constitutional to minimize However, pretrial publicity.” of prejudicial the effects while upon protect the court is called the defendant’s Sixth Amend right, public’s ment it must remain sensitive to the First Amend paramount ment of access. The court’s task is to balance abrogate constitutional values rather than to one or the Although, basis, other. on a one im case case interests plied necessarily prevail, here must goal the court’s is to “ensure enjoyment proper the full of both First and accommodation Press, Nebraska rights.” Sixth Amendment U.S. *8 (Brennan, J., concurring). suppression
Pretrial hearings bring inevitable the tension be- tween rights the First Amendment and the Sixth rights pitch. of the defendant to a fever whole purpose proceedings keep illegally of is to unreliable and ob- tained free jury. evidence from the If the media is afforded
474 may be influenced jurors proceedings, then to such Gan- ultimately inadmissible. inculpatory ruled to be evidence nett, 443 at U.S. necessarily mean
Nevertheless, does not prejudice risk of the by the pointed out closed. As was proceeding the should be tri- majority of criminal Court, overwhelming the “[i]n unmanageable threats als, pretrial publicity presents [the few Press, 551; Nebraska at U.S. fair [to trial].” accused’s] Association, (Hill, Herald Vt. A.2d at 331 at see also (listing variety part) of J., concurring dissenting po- problem of judges with the available to trial confronted tools “continuance, severance, tentially publicity: prejudicial pretrial venue, venire, dire, peremptory chal- change change of of voir jury.”). the lenges, sequestration, admonition pretrial pro- presumption Consequently, we start with the public, being ceedings open to the closure the and documents are Sunday, at A.2d exception 136 Vt. rather than rule. “[o]penness . . . both the basic at 405. This is because enhances appearance of so and the fairness fairness Press-Enterprise system.” public confidence essential Superior California, Co. openness, party seeking presumption
To clo- rebut preserve is essential sure must demonstrate “that closure higher narrowly interest.” values and is tailored serve Association, 510; A.2d see also Herald Vt. at (“any imposed . . . be on a must based closure order necessity protection clear the defendant’s fair trial .”). rights . . .
If the interest is the of the accused to a fair asserted trial, preliminary hearing document shall closed [or demonstrating specific findings are made sealed] first, probability there is a substantial prejudiced by publicity a fair will that clo- and, second, prevent sure would reasonable alternatives adequately protect fair trial closure cannot rights. II, Enterprise
Press
475 inquiry There made into the nature evidence. was no factual already publicity given, been extent of that the case had the publicity. inquiry nor was the extent of future there a factual into why explained therein findings While the court issued fact and opinion it was of not ade- that alternatives closure would quately protect rights, fair it did so without first defendant’s making a into whether there was a substan- factual examination publicity by public generated tial likelihood that the access would irreparably damage right to a fair trial. defendant’s court was in error. thus acquitted underlying charge,
As Tallman defendant granting probable cause to the affidavit can- possibly endanger Consequently, right his a fair trial. currently closure orders effect are vacated. 21, Order District Court dated 1984 Windsor June hereby vacated. The cause is declared a affidavit of
public record. Allen, C.J., concurring agree I with the result. that the trial inquiry court should have conducted a factual to determine right likely whether fair trial would prejudiced by publicity generated suppression hearing. I imposed do not believe opinion burden authored upon seeking Justice Hill closure a protects adequately Amendment Sixth comports interests nor do I believe that with recent decisions of Supreme holdings United States Under Court. there is a qualified First Amendment attend crimi- Newspaper trials, Superior Globe Co. v. nal Court for Norfolk County, 596, (1982); Press- proceedings, U.S. 603-04 voir dire Enterprise Superior California, Co. v. Court 501, 464 U.S. (1984) (Press-Enterprise I); preliminary hearings as con- ducted sufficiently California which the Court concluded were result, Press-Enterprise Co. v. Su justify like a trial the same perior California, 478 U.S. Ct. 106 S. II). (1986) (Press-Enterprise addition, majority of the Jus- DePasquale, Gannett Co. tices concluded in U.S. (1979), First to a extended suppression hearing though expressly even case did not reach Georgia, Waller question. See right of qualified First Amendment determining
After
California,
hearings in
the United
access attached
“pro-
Press-Enterprise
II held that
Court in
States
findings
specific,
ceedings
unless
on-the-record
cannot be closed
preserve
essential
demonstrating
are made
‘closure
”
narrowly
higher
to serve that interest.’
values and is
tailored
I,
Press-Enterprise
13-14,
(quoting
I of a a read decisions to one closure Cali- proceeding, voir dire a as conducted equivalent fornia or thereof to demonstrate a substantial probability occur, prejudice of closure of a will otherwise but that suppression hearing requires only showing a a likely prejudiced. to a fair trial is to be itself, recognized a as Court has in the context of satisfy opposed pretrial proceeding, a various alternatives Richmond may the constitutional demands of fairness be invoked. Newspapers, Virginia, Inc. Publicity U.S. however, generated by pretrial suppression hearings, poses special susceptible protection concerns which are less alternatives during available an actual trial. Gannett, expressed in
As U.S. 378-79: danger publicity concerning pretrial suppression hearings acute, may particularly is because it difficult to be any degree certainty measure with the effects of publicity on the fairness of the trial. After the commence- itself, prejudicial ment of the trial information inadmissible kept by variety about a can jury defendant from a a publicized during pre- means. When is such information however, may kept proceeding, altogether never jurors. pretrial proceedings from is Closure judge often one of the most effective methods that a trial attempt employ can to insure a trial that the fairness of jeopardized by will not be the dissemination of such infor- throughout community mation before the trial itself has begun. even ample danger
Because of this imposition there is reason for the upon lesser burden closure hearing.* view,
In my controlling Waller is seeking and a defendant clo- sure of a suppression hearing only required to advance an overriding likely prejudiced. interest to be 467 U.S. at issue, Inasmuch as this Court is divided on this its resolution must be left to a later case. respect question
With to the of when probable an affidavit of document, cause becomes a I give would be inclined greater guidance to the trial majority courts. The that an holds affidavit of cause is a after document review a *11 however, court. stage, At may this initial the defendant well be and, probability counsel, without counsel in all with even unable adequately to prepare present for required the evidence for closure my opinion should, under In standard. the court duty fulfillment of its constitutional to minimize the effects of prejudicial pretrial publicity, amake determination sponte sua as to whether the contents of the affidavit rea- could sonably impair the rights defendant’s Sixth made public. If it concludes there is a reasonable likelihood of * example, public knowledge As an of a confession later be determined to inad- prosecution receiving publicity missible in statewide could so influence opinion might impossible impanel impartial jury. that be to an While former Press-Enterprise II, Burger suggests Chief Justice 478 U.S. S. Ct. identify jurors prior knowledge voir dire can those whose rendering verdict, impartial case would disable them from an he was earlier highly lengthy very pur- critical of extensive and voir dire for conducted pose. Press-Enterprise I, questionable highly 464 U.S. at It whether rights adequately by comprised persons protected jury one’s fair trial are who have not read or heard about a criminal matter which has become media event. period sufficient sealed for a
prejudice, should be the affidavit itof some or all to move have permit time to the defendant remain sealed. evidentiary moves, hold an court
If the so the would defendant should contents of the affidavit to determine whether given be State, must The defendant and remain sealed. their present fully adequately prepare sufficient time positions. respective seal remain under seeking
A to have affidavit jeop- likely be right to a fair trial is that the must demonstrate op- Those of the affidavit. of the contents ardized disclosure showing that sealing have the burden posing the would then would eliminate procedures are available that alternative (Powell, DePasquale, Gannett dangers. claimed be re- J., Finally, I should concurring). the defendant believe sealing probably be effec- quired to would demonstrate that States perceived danger. United against protecting tive in Chagra, (5th 1983). proof on Cir. The burden of F.2d of the evidence. preponderance each issue should be support its deci- specific findings trial court must then make narrowly preserve inter- sion, and its must drawn order be protected. being est documents, court sealing of the trial
To order closure or the necessary action to vindicate should convinced interests, It must defendant’s no alternatives will suffice. pro- employ necessary adequately means least-restrictive interest, possible much as and limit as tect defendant’s essence, remedy intrusion into the First Amendment value. initially prejudice to the demon- should tailored Preventing Sixth Amendment damage strated. point, seeking than assurance interest should be focal rather occurred, it is damage that the can be minimized after it has since publicity. by pretrial damage difficult to measure the caused judge provide support findings must factual for each his *12 hearing’s phases, temporarily different which can also appel- necessary. appropriate findings sealed Such will allow for joins opinion. review. Justice Peck in this late