520 So.2d 32 (Fla. 1988), 69660, Florida Freedom Newspapers, Inc. v. McCrary

Docket Nº:69660.
Citation:520 So.2d 32, 13 Fla. L. Weekly 92
Party Name:FLORIDA FREEDOM NEWSPAPERS, INC., Petitioner, v. Robert L. McCRARY, Jr., Circuit Judge, Fourteenth Judicial Circuit, State of Florida, Respondent.
Case Date:February 11, 1988
Court:Supreme Court of Florida

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520 So.2d 32 (Fla. 1988)

13 Fla. L. Weekly 92



Robert L. McCRARY, Jr., Circuit Judge, Fourteenth Judicial Circuit, State of Florida, Respondent.

No. 69660.

Supreme Court of Florida.

February 11, 1988

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Franklin R. Harrison and William A. Lewis of Sale, Brown & Smoak, Chartered, Panama City, for petitioner.

Robert A. Butterworth, Atty. Gen. and Louis F. Hubener, Asst. Atty. Gen., Tallahassee, for respondent.

Richard J. Ovelmen, Miami, Laura Besvinick of Sharpstein & Sharpstein, P.A., Coconut Grove, Parker D. Thomson and Sanford L. Bohrer of Thomson, Zeder, Bohrer, Werth & Tazook, and Berald B. Cope of Greer, Homer, Cope & Bonner, P.A., Miami, amici curiae for The Miami Herald Pub. Co., The Florida Press Ass'n, The Florida Society of Newspaper Editors, and The Florida First Amendment Foundation.

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

SHAW, Justice.

We review Florida Freedom Newspapers Inc. v. McCrary, 497 So.2d 652 (Fla. 1st DCA 1986), to determine if the lower court correctly construed the first and sixth amendments of the United States Constitution. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The facts of the case are as follows. A newspaper in general circulation in Jackson County reported that prisoners in the county jail were being mistreated. The story was followed up by other media and papers and became a matter of public concern. In due course, two jailers with the Jackson County Sheriff's Department were charged with criminal mistreatment of prisoners. Both filed motions to control prejudicial pretrial publicity seeking two specific measures: first, orders preventing public disclosure of certain pretrial discovery information which was to be furnished to the two defendants by the state attorney's office under Florida Rule of Criminal Procedure 3.220; second, orders prohibiting public comment on the evidence and charges by members of the state attorney's office, defense counsel, members of the sheriff's department, potential witnesses, and various other individuals. After a hearing on the motions, the trial court entered an order granting, in part, the measures requested in the motions. Later, after an in-camera inspection of the discovery materials, the trial court entered orders prohibiting the release of existing discovery materials and future discovery materials pending an in-camera inspection. Concerning the requested prohibition on comment, the trial court found the request to be too broad and limited the prohibition to comments by the state attorney's office and sheriff's department. The orders were based on findings that the discovery material was graphically incriminating, containing materials which might not be admissible at trial, and that the prosecutor, sheriff, and other persons had made public statements prejudicial to the defendants. The trial court made clear that it was not prohibiting the publication of any information in the possession of the press or which might come into its possession, and that it was not closing any judicial proceedings to the press or public. The trial court noted that the defendants had asserted their right to be tried in Jackson County and concluded that no alternative measures were available to the court which would safeguard the defendant's rights to a fair trial by an impartial jury. On petition for certiorari review, the district court found no departure from the essential requirements of law and incorporated the operative portions of the orders into its opinion. For the reasons which follow, we approve the decision below.

We have reviewed and considered briefs from petitioner and from amici curiae, The Tallahassee Democrat, The Miami Herald Publishing Company, The Florida Press Association, The Florida Society of Newspaper Editors, and The Florida First Amendment Foundation. We address each of the three arguments presented by petitioner and amici (collectively, the press).

Chapter 119, Public Records, Florida Statutes (1985), establishes a state policy

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that government records, with specific exceptions, should be open at all times to the public. Section 119.011(3)(b) provides an exception whereby "criminal investigative information" developed for the prosecution of criminal defendants will not be accessible to the public until such time as the information is given, or required by law or agency rule to be given, to the accused. The pretrial discovery information at issue falls into this latter...

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