Arkansas Television Co. v. Tedder, 83-160

• Decision Date: 19 December 1983
• Docket Number: No. 83-160,83-160
• Citation: 662 S.W.2d 174,281 Ark. 152
• Parties: , 10 Media L. Rep. 1617 ARKANSAS TELEVISION COMPANY and Philip Barry Beasley, a/k/a Chris Curtis, Petitioners, v. Cecil A. TEDDER, Circuit Judge, Respondent.
• Court: Arkansas Supreme Court

Page 174

662 S.W.2d 174

281 Ark. 152, 10 Media L. Rep. 1617

ARKANSAS TELEVISION COMPANY and Philip Barry Beasley, a/k/a Chris Curtis, Petitioners, v. Cecil A. TEDDER, Circuit Judge, Respondent.

No. 83-160.

Supreme Court of Arkansas.

Dec. 19, 1983.

Rehearing Denied Jan. 16, 1984.

Barber, McCaskill, Amsler, Jones & Hale, Little Rock, for petitioners.

Rose Law Firm by Phillip Carroll, Little Rock, amicus curiae for petitioners Freedom of Information Committee, The Society of Professional Journalists.

William R. Wilson, Jr., P.A., Little Rock, for respondent.

HAYS, Justice.

Petitioners, Arkansas Television Company and Philip Barry Beasley, seek a writ of mandamus from this court to direct the respondent, Cecil A. Tedder, Circuit Judge of Lonoke County, to refrain from excluding members of the public and the news media from pretrial suppression hearings held in his court. Although the trial in which the issue arose has ended in a conviction, rendering the question moot, the problem tends to recur but evades review, hence, we will address it here. See Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979); Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977).

The fundamental issue presented is what standard the trial court should apply when considering a motion for closure in a pretrial hearing. Decisions of the United States Supreme Court have left areas of uncertainty for the lower courts which have had to face this problem. The trial court in this case granted a motion for closure for a pretrial suppression hearing using essentially that standard propounded in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). In the Gannett plurality opinion, the Court sanctioned the closure of a pretrial hearing, finding that the trial court, in its discretion, after balancing the rights of the press and the public against the defendant's right to a fair trial, may grant closure when there is a reasonable probability of prejudice to the defendant. The only clear holding agreed on by a majority of the Court was a finding that the sixth amendment did not provide the public with a constitutional right of access to pretrial suppression hearings.

The two Supreme Court decisions that have come down since Gannett, though not dealing with this specific pretrial situation, have fostered some of the confusion over the five opinions coming out of the decision in Gannett. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). However, these two later decisions do provide a degree of clarity in the presentation of the rationale for their holdings. Both recognize a constitutional right of access by the public to criminal trials under the first amendment. After discussing the historical tradition of open criminal proceedings, the Court in Globe states:

Second, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact finding process, with benefits to both the defendant and to society as a whole. Moreover public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. And in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process--an essential component in our structure of self-government. In sum, the institutional value of the open criminal trial is recognized in both logic and experience.

In United States v. Brooklier, 685 F.2d 1162 (1982), the 9th Circuit considered the distinction between trial and pretrial proceedings and dismissed any significance for purposes of determining the applicability of the first amendment. In stating its position and in summing up those taken by the Supreme Court Justices on pretrial proceedings the court stated:

... [I]t seems evidence from the opinions in Gannett, Richmond Newspapers, and Globe Newspaper that a majority of the Justices would hold the public's right of access under the first amendment applicable to pretrial suppression hearings. Justice Powell expressed this view explicitly in Gannett. Justice Blackmun's opinion in Gannett on behalf of himself and Justices Brennan, White and Marshall concluded that the public had a right of access to pretrial suppression hearings under the sixth amendment for essentially the same reasons as led the court in Richmond Newspapers and Globe Newspaper to hold that the public had a right of access under the first amendment .... Justice Blackmun concluded in Gannett: 'Unlike almost any other proceeding apart from the trial itself, the suppression hearing implicates all the policies that require that the trial be public' .... It would elevate form over substance to deny access to an identical proceeding because it began prior to trial.

We agree that the reasoning applies with similar force to pretrial as well as trial proceedings. We emphasize this not only for the importance as it pertains to the right of the public, but also, because it is often at this stage of the criminal proceedings that the rights of the defendant must be most vigorously safeguarded. Although there are situations when this can be best accomplished by closure there will be other occasions when the best protection a defendant can have is a watchful public. ¹

This position is consistent with a tradition in our case law of open judicial proceedings [See Shiras, supra; Commercial Printing Co., supra; Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1975) ] and with a legislative mandate of openness dating back to the Revised Statutes:

The sittings of every court shall be public, and every person may freely attend the same. Ark.Stat.Ann. § 22-109 (Repl.1962).

In Shiras, our reasoning for denying closure was not unlike that as quoted from Globe, supra. Shiras, although sympathizing with the public's right to be a part of the judicial process, also found significance in the protection of the accused through the public's gaining sufficient knowledge of the process to make "adjustments or reforms in the law or the judiciary." As in Globe, we find the reasoning in Shiras to apply as logically to pretrial as to trial proceedings.

This right of public access is not absolute, but because of its importance it merits a stricter standard than provided in Gannett, when considering closure of pretrial procedures. As noted in Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920 (Iowa 1983), the United States Supreme Court has not given any clear guidelines to balance the competing interests of open judicial proceedings and fair trials, but many jurisdictions ² have adopted all or variations of the three prong test articulated by Justice Blackmun's dissent in Gannett. We believe the first two prongs of that test adequately protect the two competing interests, requiring that in order to overcome the presumption of open pretrial hearings, the proponent of closure must demonstrate a substantial probability that (1) irreparable damage to the defendant's fair trial right will result from an open...