South Carolina Press Ass'n, In re, s. 91-5551

• Decision Date: 04 October 1991
• Docket Number: 91-5925,Nos. 91-5551,s. 91-5551
• Citation: 946 F.2d 1037
• Parties: 19 Media L. Rep. 1432 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.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1037

946 F.2d 1037

19 Media L. Rep. 1432

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.

Argued May 21, 1991.

Decided Oct. 4, 1991.

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 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 to the public. The central requirement is that "representatives of the press and general public 'must be given an opportunity to be heard on the question of their exclusion.' " Id. at 234, quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25, 102 S.Ct. 2613, 2621 n. 25, 73 L.Ed.2d 248 (1982). In the Blanding/Gordon trial, the district court sua sponte ordered closure of voir dire. No motion for in camera voir dire was docketed in advance of the announcement that the press and public would be excluded. In fact, it was not until several prospective jurors had been examined in camera that the court undertook a discussion with counsel on the propriety of closing voir dire. No notice was given to petitioners that closure would be reconsidered, and the court concluded its discussion by ruling that closed voir dire would continue. At that point, the court issued its written order stating that the responses given by the prospective jurors already examined would have been chilled to the detriment of the defendants' Sixth Amendment rights had voir dire not been closed. As In re Knight clearly holds, the press and the public are entitled to "notice and an opportunity to object" to closure of voir dire. Id. In the Blanding/Gordon case, ample notice was not provided. Members of the press and public were given no notice of the court's intention to close voir dire and were afforded no opportunity to object to closure. We therefore find that in the Blanding/Gordon case, the district court erred in failing to give advance notice to petitioners that it would consider closing the voir dire and in failing to provide petitioners an opportunity to be heard in opposition prior to ordering the closure. ³

In the Derrick prosecution, the district court, approximately two weeks prior to the closure hearing, issued a notice that a hearing would be held. Since the district court held the closure hearing on its own motion, no formal motion for the closure of voir dire was docketed prior to the hearing. Nevertheless, counsel for the government, the defendant, and the Press Association all participated in the hearing. In re Knight requires only that the press and public be given notice and opportunity to object to closure. Given the district court's issuance of a hearing notice and the fact that petitioner did indeed participate in the closure hearing, we find that, in the Derrick prosecution, the district court complied with In re Knight's mandate.

IV.

We now consider whether the district court erred in closing voir dire to the press and public. ⁴ After considering the findings of fact by the district court of this case, the applicable law, and hearing oral argument, we hold that the district court correctly interpreted the law as set forth in Press-Enterprise II and that its findings of fact as to the substantial probability of prejudice to the accused's right to a fair trial are not clearly erroneous.

In Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("Press-Enterprise I" ), the Supreme Court addressed closure of voir dire to the press and public. Press-Enterprise I holds that court proceedings are presumptively open to the public and that this presumption of openness may be overcome "only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 510, 104 S.Ct. at 824. In Press-Enterprise II, the Court expanded on this holding as follows:

If the interest asserted [in support of closure] is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a...