Daily Press, LLC v. Commonwealth

Decision Date20 October 2022
Docket NumberRecord No. 210787, Record No. 210827
Citation878 S.E.2d 390
Parties The DAILY PRESS, LLC, the Virginian-Pilot Media Companies, LLC, and Peter Dujardin v. COMMONWEALTH of Virginia, and Albin Trevor Pearson City of Newport News v. Commonwealth of Virginia, the Daily Press, LLC, The Virginian-Pilot Media Companies, LLC, Peter Dujardin, and Albin Pearson
CourtVirginia Supreme Court

Brett A. Spain (Bethany J. Fogerty ; Willcox & Savage, on briefs), for appellants in 210787.

F. Jefferson James, Sr. Assistant Commonwealth's Attorney (Rhonda L. Spady, Assistant Commonwealth's Attorney, on brief), for appellees in 210787.

Darlene P. Bradberry, Chief Deputy City Attorney (Stephen A. Grim, Assistant City Attorney; Shannon M. Jones, Assistant City Attorney, on briefs), for appellant in 210827.

Brett A. Spain (Bethany J. Fogerty ; Willcox & Savage, on brief), for appellees The Daily Press, LLC, The Virginian-Pilot Media Companies, LLC and Peter Dujardin in 210827.

Rhonda L. Spady, Assistant Commonwealth's Attorney (F. Jefferson James, Sr. Assistant Commonwealth's Attorney, on brief), for appellee Commonwealth of Virginia in 210827.

PRESENT: Goodwyn, C.J., Powell, Kelsey, McCullough, and Chafin, JJ., and Millette and Lemons, S.JJ.


These consolidated appeals challenge three rulings by the trial court in a pending criminal case. The first barred public access to a pretrial bail hearing, and the second kept certain motions and exhibits under seal. Two newspaper publishers and a reporter filed an appeal challenging these rulings. The third ruling, challenged on appeal by the City of Newport News, found that the City lacked standing to oppose any public access to sealed documents that the City had previously produced in response to a subpoena. For the following reasons, we reverse all three holdings and remand for further proceedings consistent with this opinion.


The underlying case involves a second-degree murder indictment and ancillary charges against Albin Trevor Pearson, a Newport News police officer. The alleged crimes occurred in 2019 during an attempt to arrest the victim. Pearson was released on pretrial bail shortly after his arrest. Claiming that Pearson posed a danger to the community, the Commonwealth requested a subpoena duces tecum to obtain various documents, including any prior investigations of Pearson's conduct as a police officer and any City of Newport News emails regarding the alleged offense. Over the City's objection, the trial court issued the requested subpoena and ordered that the subpoenaed documents be filed with the clerk of court pursuant to Rule 3A:12(b)(2), which required the initial filing to be sealed until further order of the court.1

After reviewing the subpoenaed documents, the Commonwealth filed a "Motion to Revoke Bond" (more precisely a motion to revoke bail),2 arguing that the sealed documents established probable cause to believe that Pearson's pretrial liberty would pose a danger to the community. In support of its motion to revoke, the Commonwealth relied heavily on two prior incidents involving Pearson that were documented in the sealed records. The Commonwealth filed both the motion to revoke and the attached exhibits under seal. The Commonwealth also filed a motion to preclude Pearson from arguing certain defenses and attached to the motion various sealed documents as exhibits.

At the beginning of the bail-revocation hearing, the Commonwealth moved to close the hearing and thereby preclude the public — including a reporter, Peter Dujardin — from being in the courtroom. The court continued the matter to a later date to provide the reporter and the public an opportunity to be heard. Prior to the reconvened hearing, Dujardin, along with his employers, The Daily Press, LLC and The Virginian-Pilot Media Companies, LLC, filed a joint motion to intervene.3 They objected to the motion to close the upcoming bail-revocation hearing and requested that the court unseal the Commonwealth's motion to revoke Pearson's bail, including its exhibits, and the exhibits supporting the Commonwealth's motion to preclude certain defenses. In response, the Commonwealth repeated its request for a closed hearing and restated its view that the sealed documents provided "credible information, unavailable to the Court or the Commonwealth at the time bond was granted, that there is probable cause to believe that [Pearson] is a danger to the community." J.A. at 163.4

At the later hearing on the Commonwealth's motion to close the bail hearing, the prosecutor stated that he had submitted the sealed documents because they were "relevant to the issue of danger to the community," which the court "must consider in a bond determination." Id. at 170. In support of his request for excluding the public from the hearing, the prosecutor made two arguments. First, he contended that the pandemic had made jury selection difficult and that the sealed documents could have the potential of prejudicing Pearson's defense. Second, the internal affairs files of the police department are generally considered to be confidential. Both reasons, he concluded, would protect Pearson's trial from being "impermissibly tainted by unfairly prejudicial pretrial publicity" and would give the Commonwealth the ability to "fully articulate the reasons as to why what is in the sealed bond revocation motion constitutes probable cause" to revoke Pearson's bail. Id. at 172. The court granted the Commonwealth's request to close the bail-revocation hearing, which reconvened a few days later.

After the closed bail-revocation hearing, the court heard from the Newspaper Publishers on their remaining requests for access. The court denied the Newspaper Publishers’ motion for access to the transcript of the bail-revocation hearing conducted in their absence. The court also denied their motion to unseal more than 450 pages of documents, which included the motion to revoke bail and its supporting exhibits. In support of its decisions, the court relied upon three rationales. First, the court expressed its concern "about the difficulty in seating jurors" because of the pandemic. Id. at 301. Second, the court focused on the potential that public access to the information "would impair the defendant's rights to a fair trial," particularly in light of widespread publicity of other cases involving police shootings. Id. at 302. Finally, the court observed that the sealed documents referred to incidents involving Pearson that "occurred prior to 2019" and thus "have no relevance to what happened in 2019 when the crimes alleged in the indictment occurred." Id. at 303.

While this dispute was taking place, the City of Newport News filed a motion arguing, among other things, that the sealed documents the Newspaper Publishers sought to access included reports concerning Pearson created by the Internal Affairs Division of the Newport News Police Department. Pearson participated in these internal investigations, the City claimed, as a coercive condition of his employment. Using these documents against him in a criminal proceeding, the City reasoned, would violate Pearson's right against self-incrimination protected by the Fifth Amendment. In addition, the City continued, Virginia law generally treats these investigations as confidential in order to encourage the full cooperation of the investigated officer and any other cooperating witnesses. Finally, the City contended that under Rule 3A:12(b), the subpoenaed documents could not become judicial records subject to public review until they were admitted into evidence at trial.

The trial court denied the City's motion, stating that the City's "arguments were rejected by the [c]ourt for lack of standing." J.A. at 323. In a later order, the court again held that the City had no standing to "insert itself into this criminal case" after it had provided the subpoenaed documents. Id. at 331. Invoking the "inherent authority" of the court under Code § 8.01-271.1, the court enjoined the City "from filing any motions or inserting itself in this case without prior approval from the court." J.A. at 331-32.5


The Newspaper Publishers filed an appeal of the court's closure and sealing decisions.6 The City filed an appeal of the court's refusal to consider the City's motions to prohibit the public disclosure of the subpoenaed documents attached as exhibits to the Commonwealth's motions. Because the disputes in both appeals involve similar issues, we have consolidated these cases for purposes of appellate review and have divided our discussion into two parts: the closure of the bail-revocation hearing and the sealing of the judicial records.

1. General Principles

The scope of the open-courts doctrine presupposes that " [p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.’ Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness." Press-Enterprise Co. v. Superior Ct. of Cal. , 464 U.S. 501, 509, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ( Press-Enterprise I ) (citation omitted). The scope of this doctrine has been debated for centuries, but its existence as an essential check on the exercise of judicial power was recognized as early as the Norman Conquest and continues to hold as "important a role in the administration of justice today as it did for centuries before our separation from England." Id. at 505, 508, 104 S.Ct. 819.

In Virginia, the open-courts doctrine has the protection of the United States Constitution, see Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 575-80, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) ( Richmond I ), the Virginia Constitution, see Richmond Newspapers, Inc. v. Commonwealth , 222 Va. 574, 588, 281 S.E.2d 915 (1981) ( Richmond II ), a 100-year-old statute, see Code § 17.1-208, and our...

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