News American Div., Hearst Corp. v. State

• Decision Date: 22 July 1982
• Docket Number: No. 105,105
• Citation: 447 A.2d 1264,294 Md. 30
• Parties: , 8 Media L. Rep. 2088 NEWS AMERICAN DIVISION, the HEARST CORPORATION, Intervenor, v. STATE of Maryland et al.
• Court: Maryland Court of Appeals

Page 30

294 Md. 30

447 A.2d 1264, 8 Media L. Rep. 2088

NEWS AMERICAN DIVISION, the HEARST CORPORATION, Intervenor, v. STATE of Maryland et al.

No. 105.

Court of Appeals of Maryland.

July 22, 1982.

Theodore Sherbow, Baltimore (William A. Agee and Sherbow, Shea & Tatelbaum, P.A., Baltimore, on the brief), for appellant.

Gary S. Offutt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

RODOWSKY, Judge.

In this appeal we approve the trial court's having permitted a newspaper to intervene in companion criminal cases for the limited purpose of opposing the accuseds' request for an order restricting public comment by trial participants.

On March 20, 1981 two employees of a Baltimore restaurant, who had opened the premises that morning, were found murdered. The defendants, George Green and Willie L. Green, were arrested that day. A series of indictments, including two charges of murder and two charges of robbery with a deadly weapon against each defendant, were returned on March 23. The cases attracted considerable media attention in the Baltimore metropolitan area. Because of general publicity given to the cases, and particularly to statements made by the State's Attorney for Baltimore City concerning the cases, the crime situation in Baltimore City and the correctional system, defense counsel on March 26 filed a motion in the criminal cases for an order that would prohibit the prosecutors from discussing the cases with the media, and would require discovery materials to be sealed. ¹ On March 30, the News American Division of The Hearst Corporation (Hearst) filed a petition in the criminal cases requesting that it be allowed to be heard in opposition to the defense motion. Hearst publishes a daily newspaper in Baltimore City which is distributed within Maryland and adjoining states. Hearst's petition averred that "it has the duty and right under the Constitution and laws of the United States and the State of Maryland to gather and publish the news, including news concerning the activities and statements of public officials in connection with the investigation and prosecution of crime" and averred that the proposed order would cause it "irreparable damage." By order of April 1, the trial court granted Hearst leave to intervene and be heard in the criminal case "with respect to issues raised in [Hearst's] Petition of March 30, 1981." The defense motion was heard on April 1, 27 and 29 with Hearst participating by way of oral argument and legal memorandum. On April 29, 1981 the court entered an order (the gag order) prohibiting counsel, parties, witnesses and court personnel from making extrajudicial statements for dissemination by means of public communication relating to certain aspects of the criminal cases. ² This order, by its terms, remained in effect during the pendency of the cases against George and Willie Green. Sealing of the discovery material was denied.

Hearst appealed to the Court of Special Appeals from the gag order and the Greens cross-appealed from the order allowing Hearst to intervene. The intermediate appellate court held that Hearst could not be permitted to intervene in the criminal cases, so that Hearst's appeal was dismissed and the order granting intervention was reversed. News American v. State, 49 Md.App. 422, 431 A.2d 1387 (1981).

We granted Hearst's petition for certiorari which presented two questions, one procedural and one substantive: (1) whether the Court of Special Appeals erred in reversing the trial court's order of intervention and in dismissing the appeal by Hearst; and (2) whether the gag order violated Hearst's constitutional rights "as a prior restraint on freedom of speech and of the press and as a denial of access to information concerning judicial proceedings."

On the day certiorari was granted, Willie Green was convicted on the two charges of murder and on one of armed robbery. He was subsequently sentenced to two terms of life imprisonment, plus 20 years, all consecutive. After Hearst's appeal was argued in this Court, George Green pled guilty to four charges and was sentenced to two terms of life imprisonment and two terms of 20 years, all consecutive. Counsel for the Greens has subsequently moved to dismiss Hearst's appeal as moot. Before addressing the mootness issue, some legal background should be stated.

(i)

The gag order in this case was modeled substantially on recommendations for a standing rule of court proposed to the Judicial Conference of the United States by its Committee on the Operation of the Jury System in a report on "The 'Free Press-Fair Trial' Issue." 45 F.R.D. 391, 404-406 (1969). ³ That report considered that the Supreme Court in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) had "laid down a mandate to the courts to deal with the problems caused by the impact of publicity on the jury system." 45 F.R.D. at 395. Sheppard affirmed the setting aside, on federal habeas corpus, of a state court murder conviction because the accused had been denied a fair trial due to the failure of the trial judge sufficiently to protect the accused from massive, pervasive and prejudicial publicity that attended his prosecution. Justice Clark for the Court there said:

The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge's failure to take any action .... Effective control of these sources--concededly within the court's power--might well have prevented the divulgence of inaccurate information rumors, and accusations that made up much of the inflammatory publicity, at least after Sheppard's indictment.

More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters .... [Id. at 361, 86 S.Ct. at 1521, 16 L.Ed.2d at 619.]

The Court has not had occasion, following Sheppard, to decide a case involving an order of the type entered in the instant matter and, more specifically, where objection to such an order is made by the press. However, other types of orders precipitated by concern over the effects of publicity on a fair trial have been considered by the Court on oppositions initiated by the press. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) struck down, as an invalid prior restraint, an order which directly prohibited the press from publishing information relating to confessions, admissions or other facts "strongly implicative" of the accused. In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), it was held that members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend pretrial suppression hearings in criminal cases. That case resulted from a newspaper's challenge to an order closing such a proceeding.

Gannett also assumed, arguendo, that the First and Fourteenth Amendments may guarantee the press access to judicial proceedings in some situations, but held that "this putative right" had been given "all appropriate deference" by the trial court in that case. Id. at 392, 99 S.Ct. at 2912, 61 L.Ed.2d at 629. It was noted that no spectators, including the petitioner's reporter, objected when the closure motion was made, that the petitioner was given an opportunity to be heard, that the denial of access was only temporary and that the trial court had "balanced the 'constitutional rights of the press and the public' against the 'defendants' right to a fair trial.' " Id. As to this factor the Supreme Court said The trial judge concluded after making this appraisal that the press and the public could be excluded from the suppression hearing and could be denied immediate access to a transcript, because an open proceeding would pose a "reasonable probability of prejudice to these defendants." Thus, the trial court found that the representatives of the press did have a right of access of constitutional dimension, but held, under the circumstances of this case, that this right was outweighed by the defendants' right to a fair trial. In short, the closure decision was based "on an assessment of the competing societal interests involved ... rather than on any determination that First Amendment freedoms were not implicated." [Id. at 392-93, 99 S.Ct. at 2912, 61 L.Ed.2d at 629.]

The springboard for Hearst's substantive contentions in this case is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), which set aside a trial closure order entered without factual findings to support closure and without inquiry into alternative solutions for insuring fairness. Eight Justices sat, of whom seven concurred in the reversal. The opinion of the Chief Justice, joined by Justices White and Stevens, said in announcing the judgment:

"[T]he First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted ....

It is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a 'right of access,' ... or a 'right to gather information,' for we have recognized that 'without some protection for seeking out the news, freedom of the press could be eviscerated.' Branzburg v. Hayes, 408 U.S. 665, 681 [, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626, 639] (1972). The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily." [Id. at 576-77, 100 S.Ct. at 2827, 65 L.Ed.2d at 989. (footnotes omitted).]

This opinion concluded that the trial of a criminal case must...