Gannett Co., Inc. v. State

• Decision Date: 31 October 1989
• Parties: GANNETT CO., INC., Intervenor Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee, v. Steven B. PENNELL, Defendant Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 735

571 A.2d 735

GANNETT CO., INC., Intervenor Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee, v. Steven B. PENNELL, Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted: Oct. 31, 1989.

Decided: Nov. 13, 1989.

Written Opinion: Feb. 22, 1990.

Richard G. Elliott, Jr. (argued), David L. Finger, Richards, Layton & Finger, Wilmington, for appellant Gannett Co., Inc.

Gary W. Aber, Heiman, Aber & Goldlust, Wilmington, Jane E. Kirtley, Robert S. Becker, the Reporters Committee for Freedom of the Press, Washington, D.C., Richard M. Schmidt, Jr., Cohn & Marks, Washington, D.C., James Grossberg, Ross, Dixon & Masback, Washington, D.C., Robert J. Brinkmann, National Newspaper Ass'n, Washington, D.C., Bruce Sanford, Douglas E. Lee, Baker & Hostetler, Washington, D.C., for amici curiae the Reporters Committee for Freedom of the Press, American Soc. of Newspaper Editors, Maryland-Delaware-District of Columbia Press Ass'n, and National Newspaper Ass'n & Soc. of Professional Journalists in support of appellant Gannett Co., Inc.

Jeffrey M. Taschner, Dept. of Justice, Wilmington, for appellee the State of Del.

Eugene J. Maurer, Jr., Wilmington, for appellee Steven B. Pennell.

Steven J. Rothschild (argued), Andrew J. Turezyn, Paul L. Regan, Matthew F. Boyer, Skadden, Arps, Slate, Meagher & Flom, Wilmington, for amicus curiae in support of appellees the State of Del. and Steven B. Pennell.

Before CHRISTIE, C.J., MOORE, WALSH and HOLLAND, JJ., and HARTNETT, Vice Chancellor (sitting by designation pursuant to Del. Const. art. IV, § 12), constituting the Court en banc.

MOORE, Justice, for the majority.

We accepted this expedited interlocutory appeal to consider an issue of first impression--whether the news media have a qualified first amendment right to require announcement of jurors' names during a highly publicized first degree murder trial, even though the parties have full access to such information and the proceedings are otherwise open to the public. The Gannett Company ("Gannett"), publisher of the News-Journal, a daily statewide newspaper in Delaware, appeals from a pretrial order (the "Order") of the Superior Court directing the Prothonotary to keep confidential the names of prospective jurors in this case. The jury was not sequestered, and the Order was entered under the authority of a Delaware statute derived from the federal and uniform laws of the United States. The trial court properly concluded that the Order was necessary in light of the intense media coverage of this case, and the unprecedented coverage of individual jurors by Gannett in another recent and notorious murder trial in Delaware.

On appeal, Gannett contends that the Order unconstitutionally restricts its first amendment right of access to judicial proceedings, and violates its constitutional right to a hearing under the fourteenth amendment. We disagree. Applying the analogous principles of Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986) ("Press-Enterprise II "), we find that no qualified right of access exists here. See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589, 100 S.Ct. 2814, 2834, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring). Press-Enterprise II suggests that a qualified first amendment right of access attaches only if "the particular proceeding passes ... [threshold] tests of experience and logic." Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740. Gannett's claims fail both these tests. Accordingly, we affirm.

I.

Steven B. Pennell was charged with three counts of first degree murder in November, 1988. ¹ The murders were alleged to be serial killings, and the State sought the death penalty. Autopsies of the three female victims revealed that they had been bound and tortured, their bodies mutilated. Because of the lurid nature of the crimes, the case received widespread publicity in the local and regional media throughout the investigation, pretrial and trial proceedings. ²

During the spring and summer of 1989, the Superior Court held several pretrial hearings, all of which were open to the public. The trial judge was concerned about the extensive publicity the case was receiving. He began to consider ways to insure that prospective jurors were unbiased and that the defendant would receive a fair trial. On July 28, 1989, before the names of prospective jurors had been publicly announced, and before jury selection had begun, the Order was entered, which stated:

In order to protect the integrity of the jury in this case, I am taking the following steps:

1. I direct the Prothonotary to keep confidential the names of all jurors subpoenaed for this jury panel. The jury information sheet will be available only to the attorneys for the parties. The names will not be released to anyone else.

2. On jury selection days those jurors who respond will be assigned a number from 1 to 100. Those numbers will be placed on the juror information sheets delivered to the attorneys and the Court.

3. All jury selection in open Court will be accomplished by numbers and not by names.

State v. Pennell, Del.Super., Cr.A. Nos. IN88-12-0051 to 0053, Gebelein, J. (July 28, 1989) (ORDER). ³

The Order was issued because of the overwhelming pretrial publicity in this case, and the similarly extraordinary and unprecedented trial publicity Gannett gave unsequestered jurors in the nearly contemporaneous murder trial of Joyce Lynch. See State v. Joyce L. Lynch, Del.Super., Cr.A. Nos. IK88-01-0040 to 0047, Ridgely, J., 1989 WL 64149 (June 2, 1989) (ORDER). Lynch and her husband, Richard, were accused of stealing a nine-day old child on Christmas Eve, and killing his parents during the abduction. Joyce Lynch was tried first. During jury selection, the names of prospective jurors were announced in court before individual voir dire. At that time the Lynch court had no indication that Gannett might publish names and profiles of individual jurors during the trial. Later, the State and counsel for Lynch informed the court that a Gannett reporter was seeking specific information about members of the unsequestered jury. The State and defense counsel feared that publication of jurors' names and addresses would encourage the public to make unsolicited phone calls to individual jurors about the case and might threaten juror impartiality.

After an in camera hearing, the Lynch court ordered the parties and the press to keep jurors' names confidential. Gannett immediately moved to intervene and to vacate the order, alleging that it was an unconstitutional prior restraint since the jurors' names had already been announced. The trial judge refused to vacate the order as a prior restraint, characterizing it instead as a restrictive order directed to court personnel, but acknowledged the media's right to publish information (the jurors' names) which had already been publicly announced in court. However, the media was urged to consider carefully the "Bar-Bench-Press Declaration of Delaware" which encouraged news representatives to respect the privacy of jurors.

Gannett, nevertheless, immediately published an article in the midst of trial highlighting the names and giving profiles of individual jurors. Apparently, this was the first newspaper article in Delaware to publish such information while a trial was in progress. The article admitted that the "jurors value[d] their privacy highly and became extremely upset when a ... television crew followed some of them to lunch and attempted to film them eating." Further, it stated that the jurors "avoid[ed] media, family members of the victims and defendant, and anyone else who appear[ed] recognizable, leaving local restaurants at the sight of a familiar face from the courtroom." The article then continued with detailed profiles of the jurors, giving their names, hometowns, occupations, marital status, number and ages of their children, personal mannerisms and appearance. The latter portrayals were rarely flattering. Jurors were described as having a "stern expression", a "stern demeanor", "stylishly dressed", "admits to a hearing problem", "stout", "mostly bald", "short and round", and "tall, balding and thin".

Recognizing the press' claim of a prior restraint in Lynch, the Pennell trial judge issued the Order limiting disclosure of the jurors' names to anyone other than the State and defense. It permitted "the Court to proceed with the selection [of jurors] and to allow any interested parties such as the News-Journal to come in and talk about what should be the procedure without first let[ting] the names be disclosed to the public." Proceedings on Motion to Vacate Order, at 22 (Sept. 11, 1989). The trial judge bottomed his ruling on the principle that voir dire of the jury is subject "to control ... as a matter of court management." Id. at 11.

On September 7, 1989, Gannett moved to intervene and to vacate the Order. The Superior Court heard oral argument on these motions on the morning of September 11. Both the State and Pennell urged the trial court to keep jurors' identities confidential. In an expedited bench ruling, the trial judge refused to vacate his Order. No evidence was presented at this hearing, but before the trial court's written opinion was issued, Gannett submitted certain affidavits. Voir dire of potential jurors also began. ⁴ Jury selection took several days.

In a written opinion, the trial judge again refused to vacate the Order. State v. Pennell Del.Super., Cr.A. Nos. IN88-12-0051 to 0053, Gebelein, J., 1989 WL 167445 (Oct. 2, 1989). He cited statutory and judicial authority giving trial judges discretion in such matters. Id. at 4 & 10 (citing 10 Del.C. § 4513 and Superior Court Jury Plan § 16). See also Revised Report of the Judicial Conference Committee on the Operation of the Jury Selection on the "Free Press--Fair Trial" Issue, 87 F.R.D. 518, 529-32 (1980). He also stated that the press had no...