Florida Freedom Newspapers, Inc. v. McCrary, BM-47

Citation497 So.2d 652,11 Fla. L. Weekly 1464
Decision Date01 July 1986
Docket NumberNo. BM-47,BM-47
Parties11 Fla. L. Weekly 1464, 11 Fla. L. Weekly 2291 FLORIDA FREEDOM NEWSPAPERS, INC., Petitioner, v. Honorable Robert L. McCRARY, Jr., Circuit Judge, Fourteenth Judicial Circuit, State of Florida, Respondent.
CourtCourt of Appeal of Florida (US)

William A. Lewis of Sale, Brown & Smoak, Panama City, for petitioner.

Jim Smith, Atty. Gen., Lewis F. Hubener, Asst. Atty. Gen., Tallahassee, for respondent.

C. Gary Williams, Michael J. Glazer of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for amicus curiae, Tallahassee Democrat, Inc.

John D. Simpson, Marianna, for amicus curiae Dale Sims.

Floyd A. Griffith of Griffith & Griffith, Marianna, for amicus curiae Gordon Hartley, Jr.

ERVIN, Judge.

Florida Freedom Newspapers, Inc. (Florida Freedom), has filed with this court a petition, pursuant to Florida Rule of Appellate Procedure 9.100(d), to review an order precluding the press's access to certain transcribed statements, furnished through discovery, and prohibiting extra-judicial comment by certain state and county agents during the pendency of two criminal cases now before the circuit court of Jackson County, State v. Hartley and State v. Sims. For the reasons recited infra, we deny the petition.

In December 1985, the Panama City News Herald, one of petitioner's newspapers, began publishing a series of articles In March 1986, Sims and Hartley filed motions to control prejudicial pretrial publicity to prevent public disclosure of transcribed statements of jail inmates and sheriff's office personnel, which were to be furnished by the state attorney to the defendants following their demand for discovery under Rule 3.220, Florida Rules of Criminal Procedure, and to prohibit any comments pertaining to the cases by defense counsel, members of the State Attorney's Office, the Jackson County Sheriff's Office, and various other individuals.

pertaining to alleged jailer mistreatment and abuse of prisoners in the Jackson County Jail. Other area newspapers thereafter followed up with stories regarding the alleged incidents. Subsequently, several correctional officers were arrested and charged with various offenses, ranging from aggravated child abuse to jailer malpractice. Petitioners Sims and Hartley, two of the jailers involved, were charged with the above offenses.

Following a hearing on the motions, the trial court entered its initial order prohibiting the state attorney from disclosing to the public any discovery documents furnished to the defendants without first submitting them to the court for in camera inspection for the purpose of determining whether the defendants' constitutional rights would be adversely prejudiced by public disclosure. The court also prohibited the state attorney's office, the Jackson County Sheriff's Office, and the Clerk of the Fourteenth Judicial Circuit from making any out-of-court statement "relating to the trial of these causes or the parties or issues in said trials."

After conducting an in camera inspection of the discovery documents, the court, adhering to its earlier ruling, entered orders prohibiting public disclosure of all discovery documents furnished to the defendants, except the state's form response to discovery and the state's letter to the defendants' attorneys advising what documents have been furnished, until such time as the danger of prejudice to the defendants no longer exists. The court also directed that all future discovery documents be inspected in camera to determine their effect on defendants' constitutional rights. The April orders slightly modified the earlier gag orders, prohibiting personnel of the State Attorney's Office, and personnel of the Jackson County Sheriff's Office from making any out-of-court statement regarding the events giving rise to the crimes charged or the parties or issues involved in the trials until the threat of prejudice to the defendants no longer exists. A similar prohibition directed to the clerk of the trial court and his employees was removed. In support of its orders, the court concluded:

[T]here has been widespread publicity which is prejudicial to the [defendants'] right to receive a fair trial free from outside influences ... and right to be tried before an impartial jury in Jackson County, Florida. The disclosure of the discovery documents ... would open to the press additional volumes of information not previously made public. The public dissemination of this additional information poses a serious and imminent threat to the administration of justice requiring temporary nondisclosure of the discovery documents.

(emphasis supplied)

The primary issue before us is whether the press is entitled to access to pretrial transcribed statements taken by the state and furnished to the defendants pursuant to their demand for discovery. The answer to this question involves a balancing of the rights of the respective parties. This court has previously held that "[t]he right of the news media and the public to know all that transpires in a criminal case ... must be carefully weighed against the defendant's right to a fair trial, but the defendant's right to a fair trial should be given paramount consideration." State ex rel. Tallahassee Democrat v. Cooksey, 371 So.2d 207, 209 (Fla. 1st DCA 1979) (e.s.). It is also well recognized that "any form of prior restraint comes to this court bearing a heavy presumption against its constitutional validity" Florida Freedom, citing to Satz v. Blankenship, 407 So.2d 396 (Fla. 4th DCA 1981), pet. rev. den., 413 So.2d 877 (Fla.1982), argues that once the state releases the statements to the defendants, the Public Records Act, Chapter 119, 1 requires disclosure of these documents to the press. Accord Bludworth v. Palm Beach Newspapers, Inc., 476 So.2d 775 (Fla. 4th DCA 1985). We have no quarrel with the Satz rule, but we would also observe that Satz explicitly states that it did not consider the impact of prejudicial pretrial publicity on a defendant's constitutional rights, because such issue was not raised at the trial level. Under the circumstances presented here, we are of the view that the Public Records Law and the press's right of access under the First Amendment are properly subject to the inherent power of the court to preserve a defendant's right to a fair trial. See State ex rel. Times Publishing Company v. Patterson, 451 So.2d 888, 891 (Fla. 2d DCA 1984). The Florida Supreme Court has recognized that "a trial court has the inherent power to control the conduct of the proceedings before it, and it is the trial court's responsibility to protect a defendant in a criminal prosecution from inherently prejudicial influences which threaten fairness of his trial and the abrogation of his constitutional rights." State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904, 909 (Fla.1976) [footnotes omitted]. We conclude, based upon the following comments by the court below, that it appropriately struck the balance in favor of the defendants' right to a fair trial under the Sixth Amendment:

. Miami Herald Publishing Co. v. Morphonios, 467 So.2d 1026, 1028 (Fla. 3d DCA 1985).

This Court finds that these documents become public records when they are furnished to the Defendant[s]. Satz v. Blankenship, 407 SO. [sic] 2d, 396 (Fla. 4th DCA 1981). This Court finds and concludes that the constitutional rights of the Defendant[s] ... are controlling over any and all provisions of Chapter 119, Florida Statutes, pertaining to public records and that this Court has authority pursuant to Rule 3.220(h), Florida Rules of Criminal Procedure, to restrict or defer specified disclosures during discovery upon showing of good cause.

As further grounds for relief, Florida Freedom contends that the defendants have not met their burden of proof in meeting the requirements of the three-pronged test announced in Miami Herald Publishing Company v. Lewis, 426 So.2d 1, 3 (Fla.1982), relating to the propriety of closure of pretrial proceedings and the temporary sealing of court records. See also Bundy v. State, 455 So.2d 330, 338 (Fla.1984). In Lewis, the Florida Supreme Court stated that one who seeks to close a pretrial proceeding or seal the record in a criminal case must establish:

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;

2. No alternatives are available, other than change of venue, which would protect a defendant's right to a fair trial; and

3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

Lewis, 426 So.2d at 3. Unlike the case at bar, the closure sought in Lewis related to a denial of the public's right of access to a hearing on a motion to suppress a defendant's confession in a homicide case. In the case at bar, the press is not seeking access to a judicial proceeding, but rather the disclosure of certain transcribed statements in the defendants' possession obtained during the discovery phase of a pending criminal case, which may or may not be admissible as evidence at any judicial proceeding before the trial judge.

The Fourth District Court of Appeal in Palm Beach Newspapers v. Burk, 471

So.2d 571, 578 (Fla. 4th DCA 1985) (en banc) (pending Florida Supreme Court, case no. 67,352), found this distinction to be crucial in holding that the three-pronged test enunciated in Miami Publishing Co. v. Lewis "is not applicable to pretrial discovery proceedings such as discovery depositions because, among other things, the taking of such depositions is not a judicial proceeding since the judge is not in attendance and since the deposition cannot be received in evidence." (e.s.) In so holding, Palm Beach quoted from the U.S. Supreme Court in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33-34, 104 S.Ct. 2199, 2208, 81 L.Ed.2d 17,...

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