Federated Publications, Inc. v. Swedberg

• Decision Date: 03 September 1981
• Docket Number: No. 47453-2
• Citation: Federated Publications, Inc. v. Swedberg, 633 P.2d 74, 96 Wn.2d 13 (Wash. 1981)
• Parties: , 7 Media L. Rep. 1865 FEDERATED PUBLICATIONS, INC., Petitioner, v. Honorable Byron L. SWEDBERG, Judge of the Whatcom County Superior Court, Respondent.
• Court: Washington Supreme Court

Page 13

96 Wn.2d 13

633 P.2d 74, 7 Media L. Rep. 1865

FEDERATED PUBLICATIONS, INC., Petitioner, v.Honorable Byron L. SWEDBERG, Judge of the Whatcom County Superior Court, Respondent.

No. 47453-2.

Supreme Court of Washington, En Banc.

Sept. 3, 1981.

McCush, Kingsbury, O'Connor, Ludwigson, Thompson & Hayes, John S. Ludwigson, Bellingham, for petitioner.

Kenneth O. Eikenberry, Atty. Gen., Kevin M. Ryan, Asst. Atty. Gen., Olympia, William Johnston, Bellingham, David McEachran, Whatcom County Prosecutor, Bellingham, for respondent.

ROSELLINI, Justice.

This case is before the court as a result of a ruling by the Honorable Byron L. Swedberg in the case of State v. Compton, Whatcom County causeNo. 80-1-00322-7, whereby he refused to grant a defense motion to close a suppression and CrR 3.5 hearing to the public, but conditioned media attendance upon the signing of an agreement to abide by the Bench-Bar-Press Guidelines.

The defendant in the Compton case had been charged with attempted murder.She was reputed to be the girlfriend of Kenneth Bianchi, known as the "Hillside Strangler".Bianchi's crimes were the subject of extensive news coverage locally, regionally and even nationally.The defendant Compton's alleged crime also received considerable attention by the media, although it did not reach the dimensions of the coverage given the Bianchi case.The defendant's motions were based upon the substantial likelihood that prospective jurors would read or watch publicity about the evidence discussed at the hearing and would form improperly based opinions as to the defendant's guilt.

A representative of the petitioner, publisher of the Bellingham Herald, objected to the motions to close the hearing and seal certain evidence, as did other representatives of the media who were present.

The court heard argument and determined that publication of detailed reports of the suppression and CrR 3.5 hearings would prejudice the defendant's right to a fair trial and that other alternatives to closure would be ineffective.While he denied the motion to close the hearing, the judge, after questioning the media representatives as to whether they were familiar with the Bench-Bar-Press Guidelines and were willing to abide by them, imposed as a condition to media attendance the signing of an agreement to abide by the guidelines.Some representatives accepted this condition, signed the form of agreement provided by the prosecutor, and attended the hearing.The petitioner, through its agent, refused to sign and also refused to agree that its reporters would attend the hearing as members of the public and not in their professional capacity.Pursuant to the court's ruling, representatives of the petitioner and others who refused to sign left the courtroom.

The petitioner inaugurated this proceeding to determine the propriety of the order insofar as it excluded media representatives unwilling to sign a commitment to abide by the Bench-Bar-Press Guidelines.

The Compton case was tried in March, and we realize that our opinion here will have no effect on those proceedings.¹However, since it appears that the question is one which is likely to arise again and which will continue to evade review, we have taken cognizance of the petition.

In ruling on the closure motion, the trial court had in mind this court's opinion in Federated Publications, Inc. v. Kurtz, 94 Wash.2d 51, 615 P.2d 440(1980), where we held that Const. art. 1, § 10 bestows upon the public (including the media) a right of access to certain judicial proceedings, including the pretrial hearing.²That right, we said, must be balanced against the right of a person accused of a crime to be tried by an impartial jury free from outside influence.When the accused makes a showing that there is a likelihood of prejudice to his constitutional rights if the hearing is open to the public, and the objectors, if any, propose no acceptable and practical alternative to closure, the court may order closure, after giving due consideration to the interests of the accused and the public.The order "must be no broader in its application or duration than necessary to serve its purpose".94 Wash.2d at 64, 615 P.2d 440.

Certain alternatives to closure had been proposed by the petitioner in that case, which is the same publisher that is petitioning here.Suggested were continuance, severance, change of venue, change of venire, voir dire, peremptory challenges, sequestration of the jury and admonitions to the jury.Those alternatives all involved some compromise of a right or interest of the accused or the State.None of the suggested alternatives involved the exercise of some restraint on the part of the media.

A continuance, if it is to be effective to allay the prejudice engendered by prejudicial publicity, will almost invariably delay the trial far beyond the time contemplated by CrR 3.3, which is designed to protect not only the right of the accused to a speedy trial but the interest of the public in seeing that the administration of justice is expedited.It also compromises the constitutional right of the accused to have a speedy trial (Const. art. 1, § 22).It is noteworthy that the constitutional provision which declares that justice shall be administered openly also prescribes that it shall be done without unnecessary delay (Const. art. 1, § 10).

Severance is an available alternative only when the prejudicial publicity affects a codefendant.It may operate to the disadvantage of the prosecution in presenting its case.

A change of venue requires the accused to give up the right to be tried by a jury of the county where the offense was committed (Const. art. 1, § 22;U.S.Const. amend. 6).A change of venue entails inconvenience of witnesses, counsel and the court itself, as well as members of the community who may wish to attend the trial.It is obviously for the benefit of the latter, as well as that of the defendant, that the constitutional requirement of openly administered justice was intended.

The right to trial by jury includes the right to an unbiased and unprejudiced jury.State v. Stiltner, 80 Wash.2d 47, 491 P.2d 1043(1971).It is unlikely that a mere change of venire will produce a jury unexposed to the prejudicial publicity if it has been circulated throughout the county, as is the case here.

It is conceivable that by intensive voir dire, all prejudiced jurors may be eliminated.However, trial judges are aware that veniremen are loath to admit prejudice, or perhaps unable to recognize it, and intensive voir dire is apt to put the juror on the defensive and engender resentment toward the client of the attorney who pursues it.It is also unfair that an accused should be forced to use all or most of his peremptory challenges to rid the jury of persons who have read or heard of the prejudicial publications.

Sequestration is not a viable alternative if the hearings are held before the trial jury has been impaneled, and one objective of the hearings, to enable the parties to learn whether the evidence will be admitted and to prepare their cases accordingly, will be defeated if the hearing is not far enough in advance of the trial to allow for such preparation.In addition, under CrR 4.5, providing for the omnibus hearing, there are other matters which need to be resolved prior to the trial, such as the question whether there should be a pretrial conference.

Finally, jury admonitions may tend to focus the attention of the jurors upon the objectionable material, rather than to cleanse their minds of its effects.

The trial judge undoubtedly had these considerations in mind when he found that publicity with respect to the evidence considered at the suppression hearing would prejudice the defendant's right to a fair trial and that there was no feasible alternative to complete closure, other than partial closure.No error has been assigned to those findings, the only contention of the petitioner being that it was beyond the power of the court to exclude from the courtroom these members of the media, appearing in their professional capacity, who refused to sign an agreement to abide by the Bench-Bar-Press Guidelines.

The theory of the petitioner is that the requirement imposed by the lower court constituted a prior restraint of the kind which was found unconstitutional in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683(1976).

In that case, a state district judge had entered an order restraining members of the Nebraska Press Association from publishing or broadcasting accounts of confessions or admissions made by the accused of facts "strongly implicative" of the accused in a widely reported murder of six persons.The court held that an order of that kind one which prohibited the publication or broadcast of particular information or commentary was a "previous" or "prior" restraint on speech and came before the court with a " 'heavy presumption against (its) constitutional validity' ", as a consequence of which there was imposed upon the lower court a heavy burden of showing justification for the restraint.Nebraska Press Ass'n, at 545, 96 S.Ct. at 2796.The test to be applied, the court said, was that which was articulated by Judge Learned Hand in United States v. Dennis, 183 F.2d 201, 212(2d Cir.1950), aff'd341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137(1951).The question is whether "the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."

We need not decide whether the circumstances of this case meet that test, as we are convinced that the order of the court did not involve a prior restraint upon the exercise of free speech.³There was no prohibition of publication or other communication of events which transpired in the courtroom.

The Supreme Court has recently held, in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608(1979)...