478 U.S. 1 (1986), 84-1560, Press-Enterprise Co. v. Superior Court

Docket Nº:No. 84-1560
Citation:478 U.S. 1, 106 S.Ct. 2735, 54 U.S.L.W. 4869
Party Name:Press-Enterprise Co. v. Superior Court
Case Date:June 30, 1986
Court:United States Supreme Court
 
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478 U.S. 1 (1986)

106 S.Ct. 2735, 54 U.S.L.W. 4869

Press-Enterprise Co.

v.

Superior Court

No. 84-1560

United States Supreme Court

June 30, 1986

Argued February 26, 1986

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

Syllabus

California filed a complaint against a nurse charging him with murdering 12 patients by administering massive doses of the heart drug lidocaine. The Magistrate granted the defendant's motion to exclude the public from the preliminary hearing on the complaint under a California statute that requires such proceedings to be open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." At the conclusion of the 41-day preliminary hearing, the Magistrate refused petitioner's request that the transcript of the proceedings be released. Thereafter, the State, supported by petitioner and opposed by the defendant, moved unsuccessfully in the California Superior Court to have the transcript released. Petitioner then filed a peremptory writ of mandate with the California Court of Appeal. Meanwhile, the defendant waived his right to a jury trial, and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ. The California Supreme Court also denied the writ, holding that there is no general First Amendment right of access to preliminary hearings, and that. under the California statute, if the defendant establishes a "reasonable likelihood of substantial prejudice," the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice.

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Held:

1. Even though the Superior Court ultimately released the transcript in question, the case is not moot, because the controversy is "capable of repetition, yet evading review." Globe Newspaper Co. v. Superior Court, 457 U.S. 596; Gannett Co. v. DePasquale, 443 U.S. 368. Thus, this Court has jurisdiction. P. 6.

2. The qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as conducted in California. First, there has been a tradition of public accessibility to preliminary hearings of the type conducted in California. As opposed to grand jury proceedings, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Second, public access to such preliminary hearings is essential to the proper functioning of the criminal justice system. This proper functioning is not made any less essential by the fact that a preliminary hearing cannot result in a conviction and the adjudication is before a magistrate without a jury. The absence of a jury makes the importance of public access even more significant. Pp. 6-13.

3. Since a qualified First Amendment right of access attaches to preliminary hearings as conducted in California, the proceedings cannot be closed unless specific, on-the-record findings are made demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510. If the interest asserted is the defendant's right to a fair trial, the preliminary hearing shall not be closed unless there is a "substantial probability" that that right will be prejudiced by publicity that closure would prevent, and that reasonable alternatives to closure cannot adequately protect the right. Here, the "reasonable likelihood" test applied by the California Supreme Court placed a lesser burden on the defendant than the "substantial probability" test required by the First Amendment. Moreover, the court failed to consider whether alternatives short of closure would have protected the defendant's interests. Pp. 13-15.

37 Cal.3d 773, 691 P.2d 1026, reversed.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in Part II of which REHNQUIST, J., joined, post, p. 15.

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BURGER, J., lead opinion

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether petitioner has a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution.

I

On December 23, 1981, the State of California filed a complaint in the Riverside County Municipal Court, charging Robert Diaz with 12 counts of murder and seeking the death penalty. The complaint alleged that Diaz, a nurse, murdered 12 patients by [106 S.Ct. 2738] administering massive doses of the heart drug lidocaine. The preliminary hearing on the complaint commenced on July 6, 1982. Diaz moved to exclude the public from the proceedings under Cal.Penal Code Ann. § 868 (West 1985), which requires such proceedings to be

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open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial."1 The Magistrate granted the unopposed motion, finding that closure was necessary because the case had attracted national publicity and "only one side may get reported in the media." App. 22a.

The preliminary hearing continued for 41 days. Most of the testimony and the evidence presented by the State was medical and scientific; the remainder consisted of testimony by personnel who worked with Diaz on the shifts when the 12 patients died. Diaz did not introduce any evidence, but his counsel subjected most of the witnesses to vigorous cross-examination. Diaz was held to answer on all charges. At the conclusion of the hearing, petitioner Press-Enterprise

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Company asked that the transcript of the proceedings be released. The Magistrate refused, and sealed the record.

On January 21, 1983, the State moved in Superior Court to have the transcript of the preliminary hearing released to the public; petitioner later joined in support of the motion. Diaz opposed the motion, contending that release of the transcript would result in prejudicial pretrial publicity. The Superior Court found that the information in the transcript was "as factual as it could be," and that the facts were neither "inflammatory" nor "exciting," but that there was, nonetheless, "a reasonable likelihood that release of all or any part of the transcripts might prejudice defendant's right to a fair and impartial trial." Id. at 60a, 61a.

Petitioner then filed a peremptory writ of mandate with the Court of Appeal. That court originally denied the writ but, after being so ordered by the California Supreme Court, set the matter for a hearing. Meanwhile, Diaz waived his right to a jury trial and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ of mandate.

The California Supreme Court thereafter denied petitioner's peremptory writ of mandate, holding that there is no general First Amendment right of access to preliminary hearings. 37 Cal.3d 772, 691 P.2d 1026 (1984). The court reasoned that the right of access to criminal proceedings recognized in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), extended only to actual criminal trials. 37 Cal.3d at 776, 691 P.2d at 1028. Furthermore, the reasons that had been [106 S.Ct. 2739] asserted for closing the proceedings in Press-Enterprise I and Globe -- the interests of witnesses and other third parties -- were not the same as the right asserted in this case -- the defendant's right to a fair and impartial trial by a jury uninfluenced by news accounts.

Having found no general First Amendment right of access, the court then considered the circumstances in which the closure

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would be proper under the California access statute, Cal.Penal Code Ann. § 868 (West 1985). Under the statute, the court reasoned, if the defendant establishes a "reasonable likelihood of substantial prejudice," the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice. 37 Cal.3d at 782, 691 P.2d at 1032.

We granted certiorari. 474 U.S. 899 (1985). We reverse.

II

We must first consider whether we have jurisdiction under Article III, § 2, of the Constitution. In this Court, petitioner challenges the Superior Court's original refusal to release the transcript of the preliminary hearing. As noted above, the specific relief petitioner seeks has already been granted -- the transcript of the preliminary hearing was released after Diaz waived his right to a jury trial. However, as in Globe Newspaper, supra, at 603, and Gannett Co. v. DePasquale, 443 U.S. 368, 377-378 (1979), this controversy is "`capable of repetition, yet evading review.'" It can reasonably be assumed that petitioner will be subjected to a similar closure order and, because criminal proceedings are typically of short duration, such an order will likely evade review. Globe and Gannett, therefore, require the conclusion that this case is not moot. Accordingly, we turn to the merits.

III

It is important to identify precisely what the California Supreme Court decided:

[W]e conclude that the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial. Penal code section 868 makes clear that the primary right is the right to a fair trial, and that the public's right of access must give way when there is conflict.

37 Cal.3d at 781, 691 P.2d at 1032.

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It is difficult to disagree in the abstract with that court's analysis balancing the...

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