Ex parte Consolidated Pub. Co., Inc.

• Decision Date: 24 April 1992
• Citation: 601 So.2d 423
• Parties: 20 Media L. Rep. 1105 Ex parte CONSOLIDATED PUBLISHING COMPANY, INC., Publisher of the Daily Home and of the Anniston Star, et al. (Re STATE of Alabama v. Shep WILSON, Jr.). 1901184.
• Court: Alabama Supreme Court

Page 423

601 So.2d 423

20 Media L. Rep. 1105

Ex parte CONSOLIDATED PUBLISHING COMPANY, INC., Publisher of the Daily Home and of the Anniston Star, et al. (Re STATE of Alabama v. Shep WILSON, Jr.).

1901184.

Supreme Court of Alabama.

April 24, 1992.

Rehearing Denied July 10, 1992.

O. Stanley Thornton of Wooten, Thornton, Carpenter, O'Brien & Lazenby, Talladega, and James C. Barton, Gilbert E. Johnston, Jr. and Hollinger F. Barnard of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for petitioner.

James H. Evans, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for respondent.

Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Alabama Press Association.

PER CURIAM.

Consolidated Publishing Company, Inc. ("Consolidated"), publisher of the Talladega Daily Home and the Anniston Star; Bill Keller, individually, and as editor-publisher of the Daily Home; and Michael Anderson, a reporter for the Daily Home (all hereintogether referred to as "Consolidated") petition this Court for a writ of mandamus to Judge Jerry Fielding of the Circuit Court of Talladega County.

Factual Background and Proceedings in the Circuit Court

In November 1986, Shep Wilson, Jr., was convicted in the Talladega County Circuit Court of kidnapping, rape, and murder, and was sentenced to death. This Court reversed that conviction and remanded the cause for a new trial, because the prosecutor, in his closing arguments to the jury, had made "a direct comment on [Wilson's] failure to testify," Ex parte Wilson, 571 So.2d 1251, 1265 (Ala.1990). The case is now awaiting retrial in the Talladega County Circuit Court.

On February 14, 1991, Wilson filed a "Motion to Seal File and for Closure of All Proceedings Prior to Jury Sequestration." Employees of the Daily Home were served with a copy of the closure motion, and Consolidated's lawyers attended the hearing on that motion.

At the hearing on the closure motion, Wilson offered in support of his motion a catalog of Daily Home articles; the testimony of Charles Osborne, the Daily Home's circulation manager; and the testimony of Janice Keith, the Daily Home' § news editor. The trial court orally granted the motion at the end of the hearing.

Consolidated moved to vacate the trial court's order, and after argument on Consolidated's motion to vacate, the trial court entered a written order, which stated in pertinent part:

"[T]his Court finds:

"A. That this case has been attended by massive publicity as revealed in defendant's exhibit I.

"B. That the press has repeatedly shown that, given the opportunity, it will publish details of the evidence, including evidence that could not be admitted at trial;

"C. That if the press were allowed to attend the pretrial hearings, it would publish the details, thus making it difficult to find jurors who were not aware of the evidence prior to trial.

"D. That there is a substantial probability that the defendant Wilson's right to a fair trial will be prejudiced without enforcement of the closure order and the sealing of the file.

"E. That there are available no reasonable less restrictive alternatives to closure that would adequately protect the defendant's right to a fair trial. The Court's attempt for voluntary restraint was rejected.

"F. That there is a substantial probability that enforcement of the closure order and the seal of file will enhance de facto and de jure enjoyment of the constitutional rights defendant Wilson invokes.

"WHEREFORE, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this Court finds defendant's aforementioned motion to be necessary and appropriate and it is therefore ordered that all pretrial hearings in this trial of this defendant, Shep Wilson, Jr., shall be closed to the public, print and electronic media until the jury is selected.

"IT IS FURTHER ORDERED that the case file, Number CC-86-093.02 shall be sealed and closed to the public, print and electronic media until the jury is selected.

"IT IS FURTHER ORDERED that this order of closure and order to seal the file is subject to continuing review by this Court to insure that this infringement on the rights of the press and media shall be kept to an absolute minimum.

"IT IS FURTHER ORDERED that this closure order and order to seal file shall expire on its own force once the jury to be selected for the defendant's capital murder trial has been impanelled and sequestered.

"IT IS FURTHER ORDERED that a full and complete record of all proceedings of any sort or nature whatsoever conducted under the closure order shall be kept and maintained and said record shall be made available to print and media [sic], provided a transcript is prepared by the court reporter, once defendant Wilson's trial has commenced and the jury has been impanelled and sequestered.

"....

"The Court does not take lightly this high duty cast upon it by the unique and compelling facts and circumstances of this case and the Court enters the extreme measures as set out in the foregoing order with full understanding and respect for the constitutional protection of the press and the right of the press and the general public of access to criminal trials."

Consolidated's Petition

Consolidated petitions for a writ of mandamus to compel the circuit court to vacate its order, contending that the trial court's order violates the public's and the press's right of access to criminal proceedings, guaranteed by the First Amendment to the United States Constitution.

A writ of mandamus is a drastic and extraordinary remedy. For this Court to issue such a writ, there must be (1) a clear legal right of the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the Court. Ex parte Adams, 514 So.2d 845 (Ala.1987). Accordingly, the burden of proof in regard to this mandamus petition is on Consolidated; however, as our discussion of United States Supreme Court cases will show, the burden is upon Wilson to justify the closure he seeks, provided that the right of access Consolidated claims attaches in this case.

United States Supreme Court Cases

In a variety of factual contexts, the United States Supreme Court has addressed the issue of the press's and the public's access to criminal proceedings. The most recent decision of that Court on the issue of the press's and the public's right of access, Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), which we refer to as Press-Enterprise II, is directly on point in this case, is comprehensible without explanation of other cases, and provides a specific method for analyzing the dispositive issues now before us; accordingly, we do not provide a detailed historical analysis of the progression of the cases involving the public's and the press's access to criminal proceedings. Instead, we generally refer the bench and bar to these cases to illustrate the development of the law in this area. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("Press-Enterprise I") (First Amendment right of access to juror voir dire); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (closure and right of access to criminal trials); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (closure and right of access to criminal trials); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (closure and right of access to a suppression hearing); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (common law right to copy and inspect public records and documents, including judicial records and documents).

Wilson argues, however, that Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)--and not Press-Enterprise II--provides the standards for analyzing this case. In Nebraska Press Association, the trial court, before the defendant's trial for a murder that had attracted massive publicity, entered an order restraining the media from publishing confessions or admissions made by the defendant to law enforcement officers or to any third person. 427 U.S. at 544-45, 96 S.Ct. at 2795-96. Nebraska Press Association thus addressed an issue of prior restraint--i.e., a restriction on the media from publishing information in its possession. Id. at 563-70, 96 S.Ct. at 2804-08. The present case, however, addresses a restriction of access. Cf. Nebraska Press Association with Press-Enterprise II, Press-Enterprise I, Globe Newspaper Co., and Richmond Newspapers. See also, Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425, 432-434 (1978) (analyzing the differences between prior restraint cases and right of access cases). Accordingly, we reject Wilson's contention that Nebraska Press Association, instead of Press-Enterprise II, provides the standards by which to analyze this case.

In Press-Enterprise II, the United States Supreme Court wrote:

"We granted certiorari to decide whether petitioner has a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution.

"I

"On December 23, 1981, the State of California filed a complaint in the Riverside County Municipal Court, charging Robert Diaz with 12 counts of murder and seeking the death penalty. The complaint alleged that Diaz, a nurse, murdered 12 patients by administering massive doses of the heart drug lidocaine. The preliminary hearing on the complaint commenced on July 6, 1982. Diaz moved to exclude the public from the proceedings under Cal. Penal Code Ann. § 868 (West 1985), which requires such proceedings to be open unless 'exclusion of the public is necessary in order to protect the defendant's right to a fair and...