Gannett Co Inc v. Pasquale, No. 77-1301

CourtUnited States Supreme Court
Writing for the CourtSTEWART
Citation99 S.Ct. 2898,443 U.S. 368,61 L.Ed.2d 608
PartiesGANNETT CO., INC., Petitioner, v. Daniel A. DePASQUALE, etc., et al
Docket NumberNo. 77-1301
Decision Date02 July 1979

443 U.S. 368
99 S.Ct. 2898
61 L.Ed.2d 608
GANNETT CO., INC., Petitioner,


Daniel A. DePASQUALE, etc., et al.

No. 77-1301.
Argued Nov. 7, 1978.
Decided July 2, 1979.

At a pretrial hearing on a motion to suppress allegedly involuntary confessions and certain physical evidence, respondents Greathouse and Jones, who were defendants in a state prosecution for second-degree murder, robbery, and grand larceny, requested that the public and the press be excluded from the hearing, arguing that the unabated buildup of adverse publicity had jeopardized their ability to receive a fair trial. The district attorney did not oppose the motion and a reporter employed by petitioner, whose newspapers had given extensive coverage of the crime through the defendants' indictment and arraignment, made no objection at the time of the closure motion though she was present in the courtroom. Respondent trial judge granted the motion, and in response to the reporter's letter on the next day asserting a right to cover the hearing and requesting access to the transcript, stated that the suppression hearing had concluded and that any decision on immediate release of the transcript had been reserved. Petitioner then moved to have the closure order set aside but the trial judge, after a hearing, refused to vacate the order or grant petitioner immediate access to the transcript, ruling that the interest of the press and the public was outweighed by the defendants' right to a fair trial. Petitioner immediately commenced a proceeding in the nature of prohibition and mandamus in the New York Supreme Court, Appellate Division, challenging the trial court's orders on First, Sixth, and Fourteenth Amendment grounds. The Appellate Division vacated the orders, holding that they transgressed the public's vital interest in open judicial proceedings and further constituted an unlawful prior restraint in violation of the First and Fourteenth Amendments. The New York Court of Appeals, although holding that the case was technically moot because shortly before entry of the Appellate Division's judgment, the defendants had pleaded guilty to lesser included offenses and a transcript of the suppression hearing was made available to petitioner, nevertheless retained jurisdiction in view of the importance of the issues and upheld the exclusion of the press and the public from the pretrial proceeding.


1. The controversy is not moot. This Court's jurisdiction is not de-

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feated "simply because the order attacked has expired, if the underlying dispute between the parties is one 'capable of repetition, yet evading review.' " Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683. Here, the order closing the pretrial hearing is too short in its duration to permit full review, and it is reasonably to be expected that petitioner will be subjected to similar closure orders in the future. Pp. 378-394.

2. The Constitution does not give petitioner an affirmative right of access to the pretrial proceeding, all the participants in the litigation having agreed that it should be closed to protect the fair-trial rights of the defendants. Pp. 378-394.

(a) To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity, and he may take protective measures even when they are not strictly and inescapably necessary. Publicity concerning pretrial suppression hearings poses special risks of unfairness because it may influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial. Pp. 378-379.

(b) The Sixth Amendment's guarantee of a public trial is for the benefit of the defendant alone. The Constitution nowhere mentions any right of access to a criminal trial on the part of the public. Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543. While there is a strong societal interest in public trials, nevertheless members of the public do not have an enforceable right to a public trial that can be asserted independently of the parties in the litigation. The adversary system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation. Pp. 379-384.

(c) The history of the Sixth Amendment's public-trial guarantee demonstrates no more than the existence of a common-law rule of open civil and criminal proceedings, not a constitutional right of members of the general public to attend a criminal trial. Even if the Sixth and Fourteenth Amendments could properly be viewed as embodying the common-law right of the public to attend criminal trials, there is no persuasive evidence that the public had any right at common law to attend pretrial proceedings. To the contrary, by the time of the adoption of the Constitution, public trials were clearly associated with the protection of the defendant, and pretrial proceedings, precisely because of the same concern for a fair trial, were never characterized by the same degree of openness as were actual trials. Pp. 384-391.

(d) Even assuming, arguendo, that the First and Fourteenth Amendments may guarantee a right to members of the press and the public

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to attend criminal trials in some situations, this putative right was given all appropriate deference by the state nisi prius court in the present case. Even though none of the spectators present in the courtroom, including petitioner's reporter, objected when the defendants made the closure motion, petitioner's counsel was given an opportunity to be heard, and the trial court thereafter concluded that the defendants' right to a fair trial outweighed the "constitutional rights of the press and the public." Furthermore, any denial of access was only temporary; once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. Thus, any First and Fourteenth Amendment right of petitioner to attend criminal trials was not violated. Pp. 391-393.

43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544, affirmed.

Robert C. Bernius, Rochester, N.Y., for petitioner.

Bernard Kobroff, New York City, for respondents.

Mr. Justice STEWART delivered the opinion of the Court.

The question presented in this case is whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding, even though

Page 371

the accused, the prosecutor, and the trial judge all have agreed to the closure of that proceeding in order to assure a fair trial.


Wayne Clapp, aged 42 and residing at Henrietta, a Rochester, N. Y., suburb, disappeared in July 1976. He was last seen on July 16 when, with two male companions, he went out on his boat to fish in Seneca Lake, about 40 miles from Rochester. The two companions returned in the boat the same day and drove away in Clapp's pickup truck. Clapp was not with them. When he failed to return home by July 19, his family reported his absence to the police. An examination of the boat, laced with bulletholes, seemed to indicate that Clapp had met a violent death aboard it. Police then began an intensive search for the two men. They also began lake-dragging operations in an attempt to locate Clapp's body.

The petitioner, Gannett Co., Inc., publishes two Rochester newspapers, the morning Democrat & Chronicle and the evening Times-Union.1 On July 20, each paper carried its first

Page 372

story about Clapp's disappearance. Each reported the few details that were then known and stated that the police were theorizing that Clapp had been shot on his boat and his body dumped overboard. Each stated that the body was missing. The Times-Union mentioned the names of respondents Greathouse and Jones and said that Greathouse "was identified as one of the two companions who accompanied Clapp Friday" on the boat; said that the two were aged 16 and 21, respectively; and noted that the police were seeking the two men and Greathouse's wife, also 16. Accompanying the evening story was a 1959 photograph of Clapp. The report also contained an appeal from the state police for assistance.

Michigan police apprehended Greathouse, Jones, and the woman on July 21. This came about when an interstate bulletin describing Clapp's truck led to their discovery in Jackson County, Mich., by police who observed the truck parked at a local motel. The petitioner's two Rochester papers on July 22 reported the details of the capture. The stories recounted how the Michigan police, after having arrested Jones in a park, used a helicopter and dogs and tracked down Greathouse and the woman in some woods. They recited that Clapp's truck was located near the park.

The stories also stated that Seneca County police theorized that Clapp was shot with his own pistol, robbed, and his body thrown into Seneca Lake. The articles provided background on Clapp's life, sketched the events surrounding his disappearance, and said that New York had issued warrants for the arrest of the three persons. One of the articles reported that the Seneca County District Attorney would seek to extradite the suspects and would attempt to carry through with a homicide prosecution even if Clapp's body were not found. The paper also quoted the prosecutor as stating, however, that

Page 373

the evidence was still developing and "the case could change." The other story noted that Greathouse and Jones were from Texas and South Carolina, respectively.

Both papers carried stories on July 23. These revealed that Jones, the adult, had waived extradition and that New York police had traveled to Michigan and were questioning the suspects. The articles referred to police speculation that extradition of Greathouse and the woman might involve "legalities" because they were...

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