Morris Publ'g Grp., LLC v. State

• Decision Date: 25 April 2014
• Docket Number: No. 1D14–0630.,1D14–0630.
• Parties: MORRIS PUBLISHING GROUP, LLC, d/b/a, The Florida Times–Union, and Multimedia Holdings Corporation, and Gannett River States Publishing Corporation, d/b/a, WTLV/WJXX First Coast News, Petitioners, v. STATE of Florida and Michael D. Dunn, Respondents.
• Court: Florida District Court of Appeals

136 So.3d 770

MORRIS PUBLISHING GROUP, LLC, d/b/a, The Florida Times–Union, and Multimedia Holdings Corporation, and Gannett River States Publishing Corporation, d/b/a, WTLV/WJXX First Coast News, Petitioners,

v.STATE of Florida and Michael D. Dunn, Respondents.

No. 1D14–0630.

District Court of Appeal of Florida, First District.

April 25, 2014.

George D. Gabel, Jr., Timothy J. Conner, Jennifer A. Mansfield, and Paul R. Regensdorf of Holland & Knight LLP, Jacksonville, for Petitioners.

Pamela Jo Bondi, Attorney General; Samuel B. Steinberg and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Respondent State of Florida; and Cory C. Strolla, West Palm Beach, for Respondent Michael D. Dunn.

RAY, J.

Before the court is a petition filed by members of the news media for review of orders excluding the press from portions of jury selection proceedings held as part of a high-profile criminal prosecution. The petition alleges that the exclusions infringed upon the media's right of access to criminal trial proceedings guaranteed by the First and Fourteenth Amendments of the United States Constitution. We agree with Petitioners in part, and we vacate the orders discussed below.

I.

The instant petition arises from the prosecution of Respondent Michael Dunn in Duval County on one count of murder in the first degree, three counts of attempted murder in the first degree, and one count of shooting or throwing a deadly missile. Mr. Dunn fired shots into an SUV containing four black teenagers, fatally shooting one of them, during a dispute over loud music. At trial, Mr. Dunn claimed self-defense, alleging that the teenagers had threatened him. He was found guilty of three counts of the lesser-included offense of attempted second-degree murder and the single count of shooting or throwing a deadly missile. The jury could not reach a verdict on the first-degree murder charge, and a mistrial was declared as to that count. Mr. Dunn's retrial has currently been scheduled for May 5, 2014.

The prosecution of Mr. Dunn has been highly publicized with his first trial receiving significant media attention. Petitioners contend that the weekend before trial, they learned that the media would not be permitted to attend the voir dire examination of the prospective jurors, but would instead be placed in a separate room with an audio feed from the courtroom. Petitioners appeared at the beginning of trial and objected to the media's physical exclusion from jury selection, arguing that the public and the press have a right to be physically present at all phases of the trial, including jury selection, under the First and Fourteenth Amendments. The media contended that the audio feed was an insufficient substitute for the media's ability to visually observe the demeanor and non-verbal reactions and interactions of the judge, the attorneys, and the prospective jurors. Petitioners suggested that the media could arrange to have a limited number of media representatives present in the courtroom if seating capacity was a concern.

The trial judge responded that he thought this arrangement had been previously agreed to by the media months ago through its representatives on the court's “media committee.” ¹ The trial court concluded that it would be logistically impossible to accommodate all of the prospective jurors, media outlets, and families of the victims in one courtroom, and that the proceedings would not be “closed” to the media because of the audio-feed option. Counsel for Mr. Dunn did not take a position on this issue, but the State consented to the court's oral ruling.

Petitioners filed the affidavits of two reporters in support of their petition before this court. The reporters attest that they were excluded from the courtroom during jury selection on February 3, 2014, for the stated reason that there was insufficient room in the courtroom for any members of the press. However, both affiants are of the opinion that there was ample room for the media to be physically present in the courtroom. The media representatives were directed to an “overflow courtroom” where an audio feed of the proceedings was provided. Because the trial judge was the only person sitting in front of a microphone, the media were unable to hear any of the attorneys' questions to the prospective jurors, or the prospective jurors' responses to those questions.

The affidavit filed by Larry Hannan, a reporter for The Florida Times–Union, asserts that at one point during the February 3 proceedings, the audio feed was turned off while the prospective jurors went to lunch; however, by the time the audio feed was turned back on, approximately 24 prospective jurors had been dismissed. It is therefore clear, asserts Mr. Hannan, that the trial judge and the attorneys held a portion of the February 3 proceedings while the media were barred from the courtroom and the audio feed was turned off.

Affiant Anne Schindler, a reporter for First Coast News, was a member of the media committee referenced in the trial court's ruling. According to her affidavit, “[t]he idea that the media would be excluded from jury selection was never presented to the Media Committee as a matter to be discussed.” Further, “[t]he Media Committee never agreed that members of the media would be excluded from the courtroom. To the contrary, the Media Committee took every step possible to ensure that this trial was open to the public.”

On the second day of jury selection, Petitioners were given an opportunity to be heard regarding the problems experienced with the audio feed the day before. Petitioners reiterated their position that the media are entitled to be physically present during jury selection. Ultimately, the trial court agreed to allow two reporters to be physically present for the remainder of jury selection that day, and allowed four reporters to be present the following day. Court personnel corrected the audio problems in the overflow room and installed a video monitor.

However, during a recess in the proceedings the next day, at which time the courtroom was closed to the public, the court conducted the challenge portion of jury selection without the venire present. Following some discussion regarding the striking of jurors, the State asked the judge whether the audio/video feed was off. Court personnel stated, “Audio video is off right now. I am not turning anything on until I get direction from you.” The discussion continued as follows:

[STATE ATTORNEY]: I would submit respectfully that this is a chambers-type proceeding that could easily be held in chambers but that sometimes for convenience sake a Court can close off the courtroom as chambers and that's what I believe. I mean we could all go into the jury room.

THE COURT: You are right. We could so my thought was we will leave everything off. We have a court reporter taking down everything that's being said and it's just us basically in chambers.

[STATE ATTORNEY]: Thank you, Your Honor, because we do have a lot of legal argument or possibly [sic].

Counsel for Mr. Dunn made no objection. Jury selection ensued and was completed following this exchange, with the media absent from the courtroom and the audio and video feed turned off entirely.

Several days later, on February 8, the trial court entered a written order holding that Petitioners had no right to be physically present at the jury selection proceedings and that the audio feed was sufficient to preserve the press's right of access to the criminal trial.² The trial court found that the defendant's right to a fair trial is paramount, and in any event, the restriction of the media's access to an audio feed does not constitute closure. The order noted that the victims' families had agreed to listen in via audio feed rather than be physically present. To allow the media to be physically present, but not the families of the victims, would be unfair because the victims' families have a constitutional right to be present as well. The court found that Petitioners, as members of the court-appointed “media committee,” had agreed to the audio feed alternative months prior to trial, but waited until the morning of jury selection to object. Furthermore, the order asserted that although the courtroom capacity is 227, the gallery holds only 100 people comfortably.

Petitioners filed an emergency petition with this court to review the orders of the trial court excluding the media from the courtroom proceedings.

II.

Petitioners submit that the actions of the trial court outlined above amount to a violation of their First Amendment right of access to criminal trial proceedings. The State ³ counters with four main premises: (1) this court lacks jurisdiction to entertain the petition because Petitioners have failed to show the existence of any written or oral order; (2) the petition is moot because the trial court addressed Petitioners' complaints during the course of the proceedings; (3) Petitioners' due process rights were not violated because they received notice below and an opportunity to be heard; and (4) no actual closure of the proceedings occurred; rather, the trial court placed permissible restrictions to public access and properly conducted “bench conferences” outside the hearing of the media and the public. ⁴ We consider each of these points in turn.

A.

An order excluding the press or public from a judicial proceeding is reviewable pursuant to Rule 9.100(d) of the Florida Rules of Appellate Procedure. While Petitioners have identified multiple instances in which their access to the judicial proceedings below was allegedly restricted, only two of these instances resulted in reviewable orders that merit a full discussion. The first such order is the trial court's oral ruling on February 3, which was later memorialized in a written ruling dated February 8, denying the media's request to be physically present for jury selection. The second order is the trial court's oral ruling...