743 F.2d 231 (4th Cir. 1984), 83-1933, In re Knight Pub. Co.

Docket Nº:83-1933.
Citation:743 F.2d 231
Party Name:In re The KNIGHT PUBLISHING COMPANY d/b/a The Charlotte Observer, Petitioner.
Case Date:September 21, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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743 F.2d 231 (4th Cir. 1984)

In re The KNIGHT PUBLISHING COMPANY d/b/a The Charlotte

Observer, Petitioner.

No. 83-1933.

United States Court of Appeals, Fourth Circuit

September 21, 1984

Argued May 8, 1984.

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Robert H. Pryor, Charlotte, N.C. (Robert B. Cordle, Jonathan E. Buchan, Helms, Mulliss & Johnston, Charlotte, N.C., on brief), for petitioner.

John Stuart Bruce, Asst. U.S. Atty., Raleigh, N.C. (Samuel T. Currin, U.S. Atty., Raleigh, N.C., on brief) and Maria M. Lynch, Raleigh, N.C. (David W. Long, Poyner, Geraghty, Hartsfield & Townsend, Raleigh, N.C., on brief), for respondent.

Before PHILLIPS and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

The Knight Publishing Company, contesting the actions of the district court in United States v. Soles, petitions for a writ of mandamus and prohibition. The petition raises three issues: whether the court erred in (1) closing the courtroom to the public, (2) ordering certain court records sealed, and (3) subsequently excising portions of the records before releasing them. We conclude tat the court erred in closing the courtroom and in sealing the records, but it did not err in excising portions of the records.

I

North Carolina State Senator R.C. Soles was acquitted in a trial that attracted considerable attention from the press. On the first day of trial, Soles filed three motions with supporting affidavits: (1) a motion to dismiss the indictment on grounds of prosecutorial misconduct; (2) a motion for investigation of the prosecutor; and (3) a motion for disclosure of the government's evidence pertaining to other crimes, wrongful acts, and character. All counsel requested that the motions be placed under seal and that any evidentiary hearing to resolve the allegations of misconduct be closed to the public.

The judge, after briefly reviewing the documents, agreed to place the motions under seal and to consider the motion for closure. He told the marshal to be prepared

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to close the courtroom the following day. The jury was then selected.

The next morning, the marshal informed those present in the courtroom that the court was closed at the direction of the judge. Knight's reporter asked the marshal if she could speak with the judge before the courtroom was closed in order to object to the closure. The marshal denied the request after conferring with the judge. Court reconvened in the afternoon, open to the public, and the judge told the jury that he and counsel had resolved a number of evidentiary matters in chambers. He also stated that the case would be continued for three days. A consent order entered the same day disclosed that counsel had agreed to the continuance, withdrawal of Soles's motions, and retention of the motions and related papers under seal pending judgment.

Knight filed an objection to closure of the courtroom and requested access to transcripts of any hearing conducted in chambers and to any documents which were filed with the court. After considering the motion, the judge entered an order in which he explained that at the conference in chambers he told counsel that Soles's motions would require a full evidentiary hearing open to the public. The order recited that while the courtroom was closed, "no hearing was conducted. No documentary evidence was offered or accepted. No testimony was presented. No legal arguments were heard by the court." Instead, counsel had conferred among themselves and drafted the consent order withdrawing the motions, maintaining the seal, and continuing the case.

The court directed Knight's counsel to appear at a hearing, which was scheduled 10 days after closure, to state the basis for its objection to closure and sealing of the documents. At the hearing, the court informed Knight that the motions pertained to collateral matters, that they contained material that was highly prejudicial to Soles and the government, and that postponing the trial in order to hear any objections to sealing would have been adverse to the interests of Soles and the government. The court declined to release the documents at that time.

After Soles was acquitted, he and the government filed a joint motion in open court to excise portions of the sealed documents. At the hearing on the motion, Knight was afforded an opportunity to state its objections. The court ordered removal of the seal and released to the public the motions alleging prosecutorial misconduct and supporting documents except the following: the name of the government's informant, a complaint and arrest warrant that identified him, hearsay statements likely to prejudice defendants in pending criminal cases, and impertinent and scandalous material irrelevant to the issues in Soles's trial, which would leave the persons mentioned without effective means of redress.

II

Although Soles's trial has ended and the records sought by Knight have been released in excised form, our jurisdiction over the controversy arising out of the closure and sealing orders is not defeated. The petition for mandamus raises issues "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Criminal trials are generally of such short duration that closure and sealing orders will evade review. Also, it is likely that a Knight newspaper will be subject to other closure and sealing orders in the future. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602-03, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982). We therefore turn to the merits of this petition.

III

Closing the Courtroom

The public and press have a right, guaranteed by the first amendment, to attend criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980).

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The right to access to criminal proceedings is not absolute but must be balanced against other compelling interests protected by the Constitution, such as the right of the accused to a fair trial. See Press-Enterprise Co. v. Superior Court, --- U.S. ----, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). Nonetheless, there is a strong presumption in favor of openness:

Closed proceedings ... must be rare and only for cause shown that outweighs the value of openness .... The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve...

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