946 F.2d 1037 (4th Cir. 1991), 91-5551, In re South Carolina Press Ass'n

Docket Nº:91-5551, 91-5925.
Citation:946 F.2d 1037
Party Name:In re The SOUTH CAROLINA PRESS ASSOCIATION, Petitioner. In re The SOUTH CAROLINA PRESS ASSOCIATION; the State-Record Company, Inc.; the Evening Post Publishing Company; the Greenville News-Piedmont Company; the Spartanburg Herald-Journal, a Division of The New York Times Company, Incorporated; East Coast Newspapers, Incorporated, Petitioners.
Case Date:October 04, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1037

946 F.2d 1037 (4th Cir. 1991)

In re The SOUTH CAROLINA PRESS ASSOCIATION, Petitioner.

In re The SOUTH CAROLINA PRESS ASSOCIATION; the

State-Record Company, Inc.; the Evening Post Publishing

Company; the Greenville News-Piedmont Company; the

Spartanburg Herald-Journal, a Division of The New York Times

Company, Incorporated; East Coast Newspapers, Incorporated,

Petitioners.

Nos. 91-5551, 91-5925.

United States Court of Appeals, Fourth Circuit

October 4, 1991

Argued May 21, 1991.

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Jerry Ray Bender, Baker, Barwick, Ravenel & Bender, Columbia, S.C., argued for petitioner South Carolina Press Ass'n.

Edward Bart Daniel, U.S. Atty., Dean Eichelberger, Asst. U.S. Atty., Columbia, S.C., on brief, for respondent U.S.

James Hanjo Lengel, Holler, Olive, Merry, Lengel & Garner, Columbia, S.C., on brief, for respondent Paul Wayne Derrick.

Before WIDENER and NIEMEYER, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

OPINION

CHAPMAN, Senior Circuit Judge:

This matter is before the court for review of orders of the district court excluding the press and public from the voir dire of potential jurors in the criminal prosecutions of certain state legislators charged with selling their votes in the South Carolina General Assembly. This is a consolidation of petitions for writs of mandamus filed by the petitioners, the publishers of newspapers of general circulation within the State of South Carolina, who seek the writs to review the trial judge's decision to close voir dire of the jury venire to the press and the public.

I.

Luther L. Taylor ("Taylor"), Larry Blanding ("Blanding"), Benjamin J. Gordon, Jr. ("Gordon"), and Paul Wayne Derrick ("Derrick") were members of the South Carolina General Assembly charged with extortion and extortion under color of official right for accepting money in exchange for their vote on matters pending before the General Assembly. These prosecutions, along with the indictment of approximately sixteen other legislators and lobbyists, have been termed "Operation Lost Trust" by the United States Attorney for the District of South Carolina. To date, there have been three trials: 1 (1) Luther Taylor; (2) Larry Blanding/Benjamin Gordon; and (3) Paul Wayne Derrick. In each case, the district court employed in camera voir dire. 2 Also in each case, a petition for writ of mandamus for review of the district court's closure of voir dire was filed by the South Carolina Press Association ("the

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Press Association"), a voluntary association of publishers of newspapers of general circulation in the State of South Carolina. The first petition was dismissed as moot. See, In re The South Carolina Press Ass'n, et al., 917 F.2d 1302 (4th Cir.1990). This court consolidated the petitions from the second and third prosecutions and granted an expedited hearing.

Jury selection in the Blanding/Gordon case began on February 25, 1991, and the district court ordered sua sponte that voir dire would be conducted in camera. However, the attorneys for Blanding and Gordon moved for closure after the trial court had stated its desire to proceed in camera. No motion for in camera voir dire was docketed in advance of the announcement that the press would be excluded from voir dire. In a written order, the district court ruled that, in order to protect the defendants' rights under the Fifth and Sixth Amendments to the United States Constitution, members of the press would not be permitted in the courtroom during voir dire. The district court further ordered that the transcripts be sealed.

In the Derrick case, the district court issued a notice that a closure hearing would be held. Since the district court conducted the closure hearing on its own motion, no formal motion for the closure of voir dire was docketed prior to the hearing. The closure hearing was held on April 30, 1991. The government, counsel for the defendant, and the Press Association all participated in the hearing. While the Press Association opposed closure of voir dire, the government took no position on the issue, and counsel for the defendant supported closure. The district court found that "frank and forthright responses from potential jurors, which are essential to voir dire, would be chilled if they felt that their remarks would be published in the press and that requiring the juror to demand an in camera hearing does not alleviate the problem." Thus, the district court denied the Press Association's request that voir dire be open to the press and public. The Press Association petitioned for a writ of mandamus and, subsequently, an expedited hearing. This court granted petitioner's motion for an expedited hearing.

II.

We must first consider whether we have jurisdiction under Article III, § 2 of the United States Constitution. Although jury selection in each of the cases has been completed and the cases themselves have now been tried, we find that the issues presented by these consolidated petitions are not moot. Jurisdiction exists because, as we have seen in this series of cases, the closure of jury selection to the press and public is "capable of repetition, yet evad[es] review" because of the short duration of criminal proceedings. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 6, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1 (1986) ("Press-Enterprise II" ). This repetition is illustrated by the closed voir dire in the two cases which we now review as well as in the case of United States v. Luther Langford Taylor, Jr., the previous Operation Lost Trust case in which the writ was denied because the jury selection process had already been completed.

III.

Petitioners contend that the district court deprived them of procedural due process in ordering in camera voir dire prior to providing them an opportunity to be heard in opposition to closure. With regard to the Blanding/Gordon trial, we agree. However, with regard to the Derrick prosecution, we find that the district court gave the press and public ample notice and an opportunity to object to closure.

In re Knight Publishing Co., 743 F.2d 231 (4th Cir.1984), establishes the procedural requirements to be followed by a district court before it may constitutionally close a courtroom...

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