Keene Pub. Corp. v. Keene Dist. Court, 7953

• Decision Date: 23 November 1977
• Docket Number: O,No. 7953,7953
• Citation: 117 N.H. 959,380 A.2d 261
• Parties: , 3 Media L. Rep. 1595 . riginal. Supreme Court of New Hampshire
• Court: New Hampshire Supreme Court

Page 261

380 A.2d 261

117 N.H. 959, 3 Media L. Rep. 1595

KEENE PUBLISHING CORP. v. KEENE DISTRICT COURT.

No. 7953, Original.

Supreme Court of New Hampshire.

Nov. 23, 1977.

Bell & Falk, Keene (Arnold R. Falk, Keene, orally), for plaintiff.

Edward O'Brien, Keene, for the State of New Hampshire.

Eric J. Kromphold, Jr. and Stillman Rogers, Keene, for Robert W. Decker.

Orr & Reno, Concord (William L. Chapman, Concord, orally), for amicus curiae Monitor Pub. Co.

DOUGLAS, Justice.

This is a petition to review a district court ruling (RSA 490:4) ordering the closing of a probable cause hearing. Following the arrest of one Robert Decker a few days ago on seven sex-related charges involving male minors, a probable cause hearing was scheduled for the morning of November 22, 1977, in the Keene District Court. Counsel for Decker orally moved to have the hearing closed to all outsiders. Counsel was motivated by a concern to protect the accused from any publicity that might affect potential jurors when or if Decker was indicted and later went to trial in Cheshire County. The Keene Sentinel, published by plaintiff, had run several articles about the arrest and charges against Decker. The District Court (Prigge, J.) granted the motion to exclude the press and public after the assistant county attorney indicated that the state did not oppose the motion. Representatives of the plaintiff's newspaper contacted the district court judge seeking to rescind his order. When no change was forthcoming this petition came before us a few hours later pursuant to this court's supervisory power over lower courts. RSA 490:4. The probable cause hearing was continued until November 28 and thus the matter is not moot and raises urgent and important issues that we feel should be resolved.

In this state the press has been held to have a right, though not unlimited, to gather news so as to effectuate the policy of our constitution that a free press is "essential to the security of freedom in a state." N.H.Const., Pt. 1, Art. 22 and Opinion of Justices, 117 N.H. 386, 373 A.2d 644 ($ 7787, May 17, 1977). Of course, a defendant has a constitutional right to a public trial which he may waive. Martineau v. Helgemoe, 117 N.H. ---, 379 A.2d 1040 (1977). Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), set stringent standards to determine the validity of prior restraints on the press through "gag" orders, but left unanswered the question of what standard to apply in determining whether a preliminary hearing should be closed. Id., note 8.

The press here argues that excluding the press from the court room entirely sweeps more broadly, and is thus a greater restraint, than if it can be present, albeit in some particulars "gagged" from printing some of what it hears. Of concern on the other side is that if "gag" orders are infirm then there is no limit to what the press may publish if present in a public court room and thus there would be no effective way for a defendant to prevent prejudicial pre-trial publicity. See e. g., Oklahoma Publishing Co. v. District Court for Oklahoma County, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977), Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Note, "Exclusion of Public From a Proceeding Merely Upon Request is in Excess of Court's Power," 30 U. Miami L.Rev. 1075 (1976). RSA 596-A providing for probable cause hearings permits exclusion and separation of witnesses. RSA 596-A:6.

The American Bar Association Standards Relating to Fair Trial and Free Press (1968) in Standard 3.1 provide for exclusion of the press and public from pretrial hearings upon motion provided "a complete record of the proceedings shall be kept and shall be made available to the public following . . . trial." The commentary by the drafting committee concluded that the standard struck the appropriate balance. ABA, supra at 117. Since that time the successor to the "Reardon Committee" has recommended that the Standard be rewritten to provide that:

"A judge may not close to the public (including representatives of the news media) any preliminary hearing, bail hearing, or other pretrial hearing in a criminal case, including a motion to suppress, or seal any document unless the failure to close the proceeding or the seal (sic) the document constitutes a clear and present danger to a fair trial in that:

(1) There is a substantial likelihood that information prejudicial to the accused's right to a fair trial would reach potential jurors; and

(2) The prejudicial effect of such information on potential jurors cannot be avoided by alternative means. In assessing whether alternative means are available, the...