Detroit Free Press, Inc. v. Recorder's Court Judge

• Citation: 409 Mich. 364,294 N.W.2d 827
• Decision Date: 31 July 1980
• Docket Number: No. 14,Docket No. 61056,14
• Parties: , 6 Media L. Rep. 1586 DETROIT FREE PRESS, INCORPORATED, A Michigan Corporation, and Susan Brown, Plaintiffs-Appellants, v. RECORDER'S COURT JUDGE, Defendant-Appellee. Calendar
• Court: Supreme Court of Michigan

Page 827

294 N.W.2d 827

409 Mich. 364, 6 Media L. Rep. 1586

DETROIT FREE PRESS, INCORPORATED, A Michigan Corporation, and Susan Brown, Plaintiffs-Appellants, v. RECORDER'S COURT JUDGE, Defendant-Appellee.

Docket No. 61056.

Calendar No. 14.

Supreme Court of Michigan.

Argued Dec. 6, 1978.

Decided July 31, 1980.

Kenneth Murray, Brownson Murray, Detroit, for plaintiffs-appellants.

Alphonso R. Harper, Detroit, for defendant-appellee.

MOODY, Justice.

PREFACE

The issuance of this opinion was held pending the release of Richmond Newspapers, Inc. v. Virginia, --- U.S. ----; 100 S.Ct. 2814; 65 L.Ed.2d 973 (1980). In Richmond, the United States Supreme Court held that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments of the United States Constitution. The result in this case is consistent with the result reached in Richmond and could now be predicated upon the holding in Richmond.

In the instant case, the parties perfunctorily raised First-Amendment arguments. Our analysis consists of an alternate ground for decision to that contained in Richmond and is primarily based upon the common law.

INTRODUCTION

The underlying issue before this Court is whether and upon what rationale a trial judge may exclude the public, including the press, from attendance at a criminal trial upon the affirmative waiver by defendant of the right to a public trial. Specifically in this case the question is: Did the trial judge act properly in issuing the order of exclusion?

On the basis of common law and § 1420 of the Revised Judicature Act, ¹ we conclude that the public may not be excluded from a criminal trial without first giving full and fair consideration to the public's interests in maintaining an open proceeding. This conclusion is required even if the defendant waives his right to a public trial with the consent of the prosecutor.

FACTS

A high school English teacher, a Department Head, was charged with criminal sexual conduct in the second degree under M.C.L. § 750.520c; M.S.A. § 28.788(3). The conduct charged allegedly occurred with a fourteen year-old student in the school building during school hours.

Following the preliminary examination, on November 16, 1977, the trial judge, upon stipulation of counsel, issued an order suppressing all pre-trial publicity in the case.

Trial was scheduled to begin on February 3, 1978. On that day, just prior to the selection of a jury, a proceeding was held in chambers. Counsel for the teacher made a motion that the trial be closed to the public, giving the following as reasons:

"It is the defendant's position that this should be a closed trial and not a public one because of the possible impact on the community as a whole in terms of influencing cases of this kind; the possibility of influencing youngsters, teenagers in terms of bringing these kind of charges up against their teachers as a way of getting back at them. And, if publicized, this trial would influence youngsters not only towards authority figures themselves, but especially towards the teaching profession.

"Also, we are concerned that (the teacher) * * * has a recognized status in the community and a public trial would do nothing but ruin that reputation."

The prosecution made no objection to this request. Without providing an open hearing or stating reasons, the trial court issued an order excluding the public from the courtroom.

On February 6, 1978, the Detroit Free Press and Susan Brown, the reporter assigned by the Free Press to the trial, filed a complaint for superintending control and a motion for immediate consideration with the Court of Appeals. Before the Court of Appeals could act, on February 7, 1978, the trial was concluded, with the jury returning a verdict of not guilty.

Recognizing that the conclusion of the trial rendered the application for superintending control moot, the Court of Appeals treated the application as one for leave to appeal and granted leave. The Free Press then filed an application with this Court for leave to appeal from the Court of Appeals prior to decision by that court. On May 1, 1978, we granted leave to appeal. 402 Mich. 926 (1978).

DISCUSSION

At first blush, it appears that this Court's holding in Detroit Free Press v. Macomb Circuit Judge, 405 Mich. 544, 275 N.W.2d 482 (1979), would be dispositive of the issue raised in the instant case. In Macomb Circuit Judge, which was a case remarkably similar to the case at bar, we opined: "The parties may not, by their mere agreement, empower a judge to exclude the public and press". Macomb Circuit Judge, supra, 549, 275 N.W.2d 484. Our decision in that case rested upon § 1420 of the RJA, which reads:

"The sittings of every court within this state shall be public except that a court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying and may, in actions involving scandal or immorality, exclude all minors from the courtroom unless the minor is a party or witness. This section shall not apply to cases involving national security." (Emphasis added.) M.C.L. § 600.1420; M.S.A. § 27A.1420.

While we think that our narrow, statutorily based holding in Macomb Circuit Judge is equally applicable here, respondent maintains that § 1420 is inapposite.

Respondent asserts that the language of the Sixth Amendment of the United States Constitution, ² "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial", and the language of Article 1, § 20, Michigan Constitution of 1963, "In every criminal prosecution, the accused shall have the right to a speedy and public trial", vests the right to a public trial in the accused and the accused alone. ³ Thus, the right to public trial could be affirmatively waived as can other substantive rights enjoyed by the accused. ⁴ We disagree.

I Common-Law Origins Of The Right To Public Trial

Although the exact origin of the tradition of holding trials in public is unknown, it is clear that the tradition has existed for a long time and enjoyed a favored position in the English common-law courts. One of the first commentators to note the fact that trials in England were held publicly was Sir Thomas Smith in his book De Republica Anglorum, published in 1583. Smith commented:

"Evidences of writinges be shewed (to the jury), witnesses be sworne, and heard before them not after the fashion of the civill law but openly, that not only the xii, the Judges, the parties and as many as be present may heare what ech witnesse doeth say.

"All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it." ⁵

A later commentator, Sir Matthew Hale, writing in 1670, not only lauded the fact that trials were held publicly but also gave substantive reasons for the desirability of such a practice:

"Ninthly, the excellency of this Open course of evidence to the jury, in presence of the judge, jury, parties and counsel, and even of the adverse witnesses, appears in these particulars.

"1st, That it is openly, and not in private before a commissioner or two, and a couple of clerks; where, oftentimes witnesses will deliver that, which they will be ashamed to testify publicly." ⁶

It is clear that at the time Smith and Hale were writing, the right to a public trial was one which inhered in the public and was not a right enjoyed by the accused. While the public was encouraged and often required to attend trials, ⁷ the accused possessed few substantive rights and could hardly be said to benefit from a public trial. One historian noted:

"(1) The prisoner was kept in confinement more or less secret till his trial, and could not prepare for his defence. He was examined, and his examination was taken down.

"(2) He had no notice beforehand of the evidence against him, and was compelled to defend himself as well as he could when the evidence, written or oral, was produced on his trial. He had no counsel either before or at the trial.

"(5) It does not appear that the prisoner was allowed to call witnesses on his own behalf; but it matters little whether he was or not; as he had no means of ascertaining what evidence they would give, or of procuring their attendance. In later times they were not examined on oath, if they were called." ⁸

Various reasons have been given as to why the English courts developed a system of holding trials in public. Although there is no entirely satisfactory explanation, one of the commonly accepted reasons for this practice was the distrust of secret trials fostered by the abuses of the Spanish Inquisition, ⁹ the English Court of Star Chamber ¹⁰ and the French monarchy's lettre de cachet. ¹¹

The common-law system of open and public trials was hailed by the early English commentators. Both Blackstone and Wigmore viewed the "open forum" as a natural check on possible abuse of judicial power. They also emphasized that public trials could enlighten the public about their government and enhance respect for judicial remedies. ¹² But, as Jeremy Bentham declared, the most resounding theme was the important role that publicity could have in insuring fairness and preventing abuse:

"Without publicity, all other checks are insufficient: in comparison with publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks as cloaks in reality, as checks only in appearance." ¹³

Publicity, Bentham declared, "is the soul of justice." ¹⁴

II The Public Trial Concept: The American Development

The "open court-open trial" concept developed early in the American system of jurisprudence. One of the earliest expressions of the public trial right is found in the "frame of government of Pennsylvania of 1682", a document signed by William...