Baltimore Sun v. Thanos

• Decision Date: 01 September 1992
• Docket Number: No. 4,4
• Citation: 92 Md.App. 227,607 A.2d 565
• Parties: , 20 Media L. Rep. 1317 The BALTIMORE SUN, et al., v. John Frederick THANOS, et al. ,
• Court: Court of Special Appeals of Maryland

Page 227

92 Md.App. 227

607 A.2d 565, 20 Media L. Rep. 1317

The BALTIMORE SUN, et al., v. John Frederick THANOS, et al.

No. 4, Sept. Term, 1992.

Court of Special Appeals of Maryland.

June 1, 1992.

Mary R. Craig, argued (Doyle & Craig, P.A., on the brief), Baltimore, for appellants.

Diane Krejsa, Asst. Atty. Gen., argued (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee, State of Md.

George E. Burns, Jr., Asst. Public Defender, argued (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellee, Thanos.

Argued before ALPERT, DAVIS and MOTZ, JJ.

MOTZ, Judge.

The question presented by this case is whether a newspaper is entitled to access to a presentence investigation report which was admitted into evidence, under seal, in the penalty phase of a capital murder trial. There is, we hold, a First Amendment right of access to this report that prevents a trial court from denying access to it, absent a determination that the compelling interests served by maintaining the confidentiality of the report outweigh this right of access. Since no such determination was made here, we must remand this case to the Circuit Court for Garrett County so that it may evaluate the newspaper's entitlement to access in light of the considerations enunciated herein.

(i)

A presentence investigation report ("presentence report") is one tool used by a judge or jury to assist in determining the appropriate sentence of a person convicted of a crime. Article 41, § 4-609 of the Maryland Annotated Code (1957, 1990 Repl.Vol., 1992 Supp.) ¹ sets forth the conditions and procedures by which presentence reports are used in Maryland. In most cases a presentence report is simply filed with, and considered by, a trial court in its discretion. In capital cases, however, a presentence investigation is required to be made, the report must be considered by the sentencing body and can be entered into evidence. § 4-609(d); Nelson v. State, 315 Md. 62, 67, 553 A.2d 667 (1989). A presentence report often involves "a broad-ranging inquiry into a defendant's private life, not limited by traditional rules of evidence." United States v. Corbitt, 879 F.2d 224, 230 (7th Cir.1989). These reports generally include information concerning the convicted person's reputation, past offenses, financial condition, mental and physical health, habits, social background and family history, among other things. Id.; see also Haynes v. State, 19 Md.App. 428, 436, 311 A.2d 822 (1973). Where the defendant, in committing a felony, caused physical, psychological, or economic injury to the victim, a presentence report may also include a Victim Impact Statement. § 4-609(c)(2) ². Section 4-609(b) mandates that "presentence reports are confidential and not available for public inspection except upon court order."

On January 24, 1992, John Thanos was convicted of the first degree murder of two teenagers from Middle River, Maryland. Thanos's trial then moved into its penalty phase, in which the State sought the death penalty for both convictions. During this phase, the judge admitted into evidence, under seal, for the sentencing jury's consideration, a redacted version of Thanos's presentence report. On January 30, 1992, however, the circuit court declared a mistrial in the penalty phase of the trial because statements made by Thanos were used by a state psychiatrist in violation of Thanos's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The day after the court declared the mistrial, the Baltimore Sun Company, one of its reporters, Glenn Small (collectively "The Sun"), and four television stations intervened in the underlying criminal case to seek access to (a) a videotape in which Thanos confessed to the crimes at issue and (b) the redacted version of Thanos's presentence report. With respect to their request for the presentence report, the news organizations argued that "anything that is introduced into evidence in a case is clothed with the First Amendment right of access" and that, without access to the presentence report, the media would be unable to accomplish their mission of informing the public accurately as to Thanos's case. Thanos objected to the disclosure of the report. While the circuit court granted the news organizations' request for access to the videotape, it denied them access to the presentence report, explaining:

Article 41, Section 4-609 makes that information confidential. It's just that simple. It is not confidential as to the sentencer, be it a judge or a jury. In this case, it was the jury. The jury got to read it as the sentencer. The confidentiality aspect is as to the public. It's not a decision I've made. It's a decision the legislature has made and the statute does not contain an exception as suggested by [The Sun] that it should have in it. Perhaps it should. The legislature either didn't consider that, or it wasn't presented to them. In any event, that motion will be denied.

On February 11, 1992, The Sun noted an appeal of the circuit court's decision. Shortly thereafter, we granted The Sun's request to expedite consideration and advance the time for briefing and oral argument in this case. The Sun argues that the First Amendment and the common law provide a right of access to the redacted version of the presentence report (The Sun does not seek the "raw" report) and require reversal of the circuit court's decision to the contrary. The State, to which we granted the right to intervene before us, asserts that the public has only a qualified right to inspect and copy a presentence report, and that this case should be remanded so that the circuit court can exercise its discretion to determine which parts, if any, of the presentence report may be disclosed. Thanos maintains that there is no right of access to the presentence report. ³

(ii)

We initially consider Thanos's position that there is no right of access to the report. The Supreme Court has expressly recognized a "common law right of access" to judicial records. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). See also Baltimore Sun v. Colbert, 323 Md. 290, 305, 593 A.2d 224 (1991) ("there is a common law right to inspect and copy judicial records and documents"). In Maryland, however, that right of access has been eliminated by the General Assembly's specific mandate, in Art. 41, § 4-609(b), that "presentence reports are confidential and not available for public inspection, absent a court order." Compare United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989) (finding a common law right of access to presentence reports prepared pursuant to the very different provisions of Fed.R.Crim.Proc. 32(c)(3), see infra n. 6). See also United States v. Schlette, 842 F.2d 1574, 1582, amended, 854 F.2d 359 (9th Cir.1988). Thus, Thanos is partially correct; there is no common law right of access to the report.

A number of courts have, however, also expressly recognized a First Amendment right of access to certain judicial records in criminal cases. See, e.g., In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.1986); United States v. Smith, 776 F.2d 1104, 1111-12 (3rd Cir.1985); United States v. Peters, 754 F.2d 753, 763 (7th Cir.1985); In re Globe Newspaper Co., 729 F.2d 47, 51, 59 (1st Cir.1984). In those relatively few situations in which a presentence report is introduced into evidence, it would seem that there is a First Amendment right of access to the report. See, e.g., United States v. Posner, 594 F.Supp. 930 (S.D.Fla.1984), aff'd on other grounds, 764 F.2d 1535 (11th Cir.1985) (First Amendment right to statutory confidential tax returns which have been entered into evidence); United States v. Carpentier, 526 F.Supp. 292, 294-95 (E.D.N.Y.1981) (First Amendment right to tapes admitted into evidence without seal during a public sentencing). See also United States v. McKnight, 771 F.2d 388, 391 (8th Cir.1985) (confidential presentence reports are not considered "public records, except to the extent that they or portions of them are placed on the court record").

In deciding whether the public has a First Amendment right of access, the Supreme Court has made two inquiries: (1) "whether the place and process have historically been open to the press and general public"; and (2) "whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740-2741, 92 L.Ed.2d 1 (1986). ⁴ Here, those determinations are not difficult. Documents entered into evidence in criminal proceedings have historically been open to the general public and that public access plays a "positive," indeed critical, role in ensuring the fairness of our judicial system. See generally Nixon v. Warner Communications, Inc., 435 U.S. at 609, 98 S.Ct. at 1317; Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328 (1975); United States v. Hubbard, 650 F.2d 293, 323 (D.C.Cir.1981); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 427 (5th Cir.1981). Thus, we must reject Thanos's claim that there is no right of access to this report.

The public's right of access, even when grounded in the First Amendment, while well-recognized, is not absolute. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-05, 102 S.Ct. 2613, 2618-20, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980). Rather, it may be limited when "an important countervailing interest is shown." State v. Cottman Transmission Systems, Inc., 75 Md.App. 647, 659, 542 A.2d 859 (1988) (quoting Publicker Indus. Inc. v. Cohen, 733 F.2d 1059, 1071 (3rd Cir.1984)). The denial of access must "be necessitated by a compelling government interest and narrowly tailored to serve that interest."...