Com. v. Hayes

Citation489 Pa. 419,414 A.2d 318
Decision Date01 May 1980
Docket NumberP,WTAE-T
Parties, 6 Media L. Rep. 1273 COMMONWEALTH of Pennsylvania, Plaintiff, v. David HAYES. In re PETITION OF the PITTSBURGH PRESS, Tribune-Review Publishing Co.,ost Gazette Publishing Co. and First Amendment Coalition, Intervenors.
CourtUnited States State Supreme Court of Pennsylvania

John H. Bingler, Jr., Thorp, Reed & Armstrong, Clyde H. Slease, III, Pittsburgh, for petitioner.

Robert Vincler, Kemal A. Mericli, Asst. Dist. Attys., Pittsburgh, for plaintiff.

Thomas A. Livingston, Livingston, Miller, O'Malley & Clark, Pittsburgh, for David S. Hayes.

Walter T. McGough, Reed, Smith, Shaw & McClay, John P. McComb, Jr., P. Jerome Richey, Moorhead & Knox, Pittsburgh, for WTAE-TV.



NIX, Justice.

This lawsuit represents yet another dispute in the continuing controversy between "free press" and "fair trial." The increasing frequency of these disputes and the mounting acrimony engendered graphically demonstrates the need for clear and decisive judicial direction in this area. One of the major reasons for the difficulty in obtaining acceptable solutions has been a lack of objectivity and flexibility in approaching the difficult problems involved. The issue too frequently is framed as one of competing unalterable principles, rending an accommodation unnecessarily difficult. The analysis employed in these controversies has been undermined by the temptation to extol the superiority of one right over the other and a lack of regard for the more pressing need to harmonize the respective interests.

The accused in the instant case is an elected state official who has been charged with sexually assaulting and supplying drugs to a 17 year old male high school student.

A suppression hearing had been reserved for the start of the trial, and upon the conclusion of the hearing, the trial would commence. At the request of the defense counsel, pursuant to Pa.R.Crim.P. 323(f), Judge Strauss of the Allegheny Court of Common Pleas granted the defense motion to close the suppression hearing. The Commonwealth concurred with the defense motion to close the hearing to the public and the press.

A representative of the Pittsburgh Press newspaper objected to the order and sought permission to intervene to protect the public and the Press's interest in an open hearing. Judge Strauss granted the Press's petition to intervene, then denied the Press's motion for an open hearing. Judge Strauss also rejected the Press's suggestion that the jury selection be completed prior to the suppression hearing and that the jury panel then be sequestered.

Following these rulings, Judge Strauss postponed the suppression hearing to provide the Press an opportunity to seek review by this Court. The Press filed a Petition for Stay which was granted by Mr. Justice O'Brien. The Press also filed a Petition for Exercise of Plenary Jurisdiction, asking the full Court to hear and decide the Press's Petition for Summary Reversal of the Lower Court. The Supreme Court granted permission to all media organizations to intervene in this matter, and on March 11, 1980, the full Court heard oral arguments on the Petition for Summary Reversal.


The most recent pronouncement of the U.S. Supreme Court on the subject is illustrative of the fragmentation that results where the approach adopted is to attempt to assign a qualitative value to the various competing interests involved. In Gannett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) the Court was called upon to determine whether a judge may order a closed pretrial proceeding to safeguard the fair trial guarantee of the Sixth and Fourteenth Amendments of the federal Constitution. 1

Mr. Justice Stewart in an opinion joined by Chief Justice Burger and Justices Powell, Rehnquist and Stevens, upheld the trial court's order of closure excluding the press from a pretrial suppression evidentiary hearing, where the prosecutor and the court agreed with the defense's assessment that an unabated buildup of adverse publicity was jeopardizing the accused's right to a fair trial. Mr. Justice Stewart justified his position by rejecting a claim that the Sixth Amendment accorded the public a right of access to public trials. Id. at 378-391, 99 S.Ct. at 2905-2911, 61 L.Ed.2d at 621-28. In support of his position, he offered two separate reasons. First, he drew from the historical development of the Sixth Amendment to conclude that the public has no right under its provisions to attend criminal trials. Id. 443 U.S. 386 at n. 15, 99 S.Ct. 2908-2909 at n. 15, 61 L.Ed.2d 625 at n. 15. 2 Second he argued in the alternative, in the event such a right to public access did exist under the Sixth and Fourteenth Amendments, it would not extend to pretrial proceedings. Id. at 387-391, 99 S.Ct. at 2909-2911, 61 L.Ed.2d at 626-28. Although stating that he was reserving the question as to the public's right of access under the First and Fourteenth Amendments, id. at 391-393, 99 S.Ct. at 2911-2912, 61 L.Ed.2d at 629, Mr. Justice Stewart did, however, implicitly limit whatever right might exist thereunder by concluding that in the case then before the Court, the trial court had satisfied those concerns. Id. at 391-394, 99 S.Ct. at 2911-2913, 61 L.Ed.2d at 629-30. 3

Mr. Justice Powell joined the opinion for the Court, and also wrote a concurring opinion in which he considered the First Amendment issue. He expressed the view that the public has a right of access to both trials and pretrial hearings under the First Amendment and that right must be balanced against the defendant's right to a fair trial. Id. at 398-402, 99 S.Ct. at 2915-2917, 61 L.Ed.2d at 633-35. He concluded that closure could only be justified where it is demonstrated that the defendant would otherwise be prejudiced. Id. He was satisfied that the record in Gannett sufficiently established prejudiced to warrant closure in that case. Id. at 401-404, 99 S.Ct. at 2916-2918, 61 L.Ed.2d at 635-36. Mr. Justice Rehnquist also joined the opinion of the Court, and extended its holding by asserting that there is no public right of access under the First Amendment. Id. at 404-405, 99 S.Ct. at 2918, 61 L.Ed.2d at 637. Thus, he adopted the position that an accused seeking closure was not required to make a showing of harm and a trial judge was not required to give reasons for ordering closure. Id. at 403-405, 99 S.Ct. at 2917-2918, 61 L.Ed.2d at 636-37. Chief Justice Burger was also a member of the majority who chose to write a separate concurring opinion. 4 He advocated the position that the framers of the Constitution did not intend to include a public right of access to pretrial proceedings within the Sixth Amendment because, unlike trials, they were not open to the public at common law. Id. at 394-397, 99 S.Ct. at 2913-2914, 61 L.Ed.2d at 630-32.

The dissenting view, authored by Mr. Justice Blackmun, maintained that the public has a right under the Sixth Amendment to attend criminal proceedings. 5 Nonetheless, the dissent did recognize that closure of a pretrial suppression in a criminal case would be warranted if there was "a sufficient showing to establish the strict and inescapable necessity" for such an order. Id. at 448, 99 S.Ct. at 2940, 61 L.Ed.2d at 665.

If we were to focus our inquiry upon whether the various interests reached constitutional proportions, Gannett would provide little guidance. Although five members of the Court rejected the claim that the Sixth and Fourteenth Amendments conferred upon the public a right of access, at least to pretrial suppression proceedings, a majority of the Court did, however, conclude the public's right of access was constitutionally guaranteed. Although not accepting the four dissenters' Sixth Amendment position, Mr. Justice Powell did find the right constitutionally protected under the First Amendment.

. . . I would hold explicitly that petitioner's reporter had an interest protected by the First and Fourteenth Amendments in being present at the pretrial suppression hearing. As I have argued in Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct. 2811 (2815), 41 L.Ed.2d 514 (1974) (Powell, J., dissenting), this constitutional protection derives, not from any special status of members of the press as such, but rather because "(i)n seeking out the news the press . . . acts as an agent of the public at large," each individual member of which cannot obtain for himself "the information needed for the intelligent discharge of his political responsibilities."

Id. at 397, 99 S.Ct. at 2914-2915, 61 L.Ed.2d 632.

Additionally, it must be remembered that the majority with the exceptions of Justices Powell and Rehnquist have yet to express a definitive view on the First Amendment's impact on the area in question.

However, whether or not the right of public access is of constitutional dimension is not critical to the problem usually raised in these disputes. Even if we interpret Gannett as establishing that the public right of access is constitutionally guaranteed, nevertheless, as noted by Mr. Justice Powell, it is not an absolute, unqualified right.

The right of access to courtroom proceedings, of course, is not absolute. It is limited both by the constitutional right of defendants to a fair trial, see, e. g., Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and by the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants. Cf. Procunier v. Martinez, 416 U.S. 396, 412-413, 94 S.Ct. 1800 (1810-1811), 40 L.Ed.2d 224 (71 Ohio Ops.2d 139) (1974); Houchins v. KQED, 438 U.S. 1, 34-35, 98 S.Ct. 2588 (2607-2609), 57 L.Ed. 553 (1978) (Stevens, J., dissenting); Saxbe v. Washington Post Co., supra, (417 U.S.) at 872-873, 94 S.Ct. (2811 at 2825-2826, 41 L.Ed.2d 514). The task of...

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