People v. Kelly

• Decision Date: 11 December 2009
• Docket Number: No. 1-08-1728.,1-08-1728.
• Citation: 921 N.E.2d 333
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert KELLY, Defendant, Chicago Sun-Times, Inc., Tribune Co. and Associated Press, Intervenors-Appellants.
• Court: United States Appellate Court of Illinois

921 N.E.2d 333

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert KELLY, Defendant, Chicago Sun-Times, Inc., Tribune Co. and Associated Press, Intervenors-Appellants.

No. 1-08-1728.

Appellate Court of Illinois, First District, Sixth Division.

December 11, 2009.

Damon E. Dunn, Neil M. Rosenbaum, Funkhouser Vergosen Liebman & Dunn Ltd. of Chicago, for Intervenors-Appellants.

Anita Alvarez, State's Attorney of Cook County, of Chicago (James E. Fitzgerald, Peter D. Fischer, Mary L. Boland, Assistant State's Attorneys, of Counsel), for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

In this appeal, members of the media claim that their first amendment right to freedom of speech was violated. Specifically, they claim that a trial court erred: (1) when it sealed certain pretrial proceedings and records during the criminal prosecution of Robert Kelly; and (2) when it issued a "Decorum Order" which restrained the speech of the attorneys and witnesses in the R. Kelly case. The sealed proceedings concerned mainly two topics: proposed questions for potential jurors, and a motion by the state requesting the trial court for permission to introduce evidence of other criminal acts by the defendant.

On April 22, 2008, the Chicago Sun-Times, Inc. (Sun-Times), the Tribune Company (Tribune) and the Associated Press (collectively, the media intervenors)¹ filed an "emergency motion" (1) to intervene in the criminal case against defendant Kelly; (2) to obtain access to certain closed pretrial proceedings and records; and (3) to vacate the Decorum Order. While the trial court granted their petition to intervene, it denied their motion for access to the closed proceedings and documents, and their motion to vacate the "Decorum Order."

The subject of this appeal is the trial court's order, entered May 16, 2008, which denied their motion. The appellants are the media intervenors; and the appellee is the State of Illinois. Robert Kelly, the defendant in the underlying criminal case, was acquitted; and he is not a party to this appeal. Kelly was described in an affidavit by a Tribune reporter as "a prominent entertainer," and this case was described as one that had "been the subject of news coverage for years."

For the following reasons, we affirm the trial court's orders. We find: (1) that a petition to intervene was the appropriate vehicle to seek access to sealed court proceedings and records; (2) that appellate jurisdiction under Supreme Court Rule 307 was proper to review the trial court's order denying access; (3) that the public interest exception to the mootness doctrine allows us to hear this appeal; (4) that we review de novo the question of whether a presumption of access applies to this type of proceeding, and we review for an abuse of discretion the trial court's balancing of competing interests and determining the appropriate parameters of closure; (5) that the presumption of access did not apply to the pretrial proceedings and documents at issue here; (6) that, even if the presumption did apply, the trial court did not abuse its discretion in denying access; and (7) that the trial court did not abuse its discretion by entering the Decorum Order.

BACKGROUND

In June 2002, the State of Illinois charged Robert Kelly with multiple counts of child pornography. At the heart of these charges were the State's allegations that defendant Kelly made a videotape of sexual acts between himself and a minor. After close to six years of continuances, Kelly's jury trial was scheduled to begin on May 9, 2008. The jury trial resulted in an acquittal, when the jury found Kelly not guilty of the charges.

(1) Procedural History

The relevant procedural history is summarized below. The closed proceedings, the decorum order, and the order appealed from are described in greater detail, with each topic described in its own section. In addition, there is also a section describing the documents missing from the record.

With the jury selection set to commence on May 9, 2008, the State filed, on April 1, a pretrial motion to allow evidence of other crimes, which was filed under seal. On April 11, 15 and 21, the trial court held pretrial hearings, which it closed to the public. On April 22, the media intervenors filed their motion (1) to intervene, (2) to obtain access to the three previously closed hearings, (3) to obtain access to the hearing scheduled for April 25, and (4) to vacate the Decorum Order. When the parties appeared in court on April 24, both the State and the defendant requested time to respond to the intervenors' motion.

On April 24, the trial court granted the intervenors' motion to intervene but denied their motion for the immediate release of the transcripts of the previously closed hearings and for the opening of the April 25 hearing. The April 24 order also set the matter for hearing on May 8. In open court on April 24, the trial court stated:

"If I articulated and made a factual basis out of why the hearings were sealed, then I would be telling you everything.

So I have to use conclusions, and one of those would be it's [sic] for the protection of the selection of the jury. But I am not making any decisions on that right now[,] on the motion.

* * *

Again, I can't disclose the factual basis without disclosing the whole thing. So it actually is because of the proximity of jury selection, which is in about two weeks, and the chance that this might deprive Mr. Kelly of a fair trial. Those are the generalized basis. Again, I can't make the factual basis."

Before the motion was scheduled to be heard before the trial court, the media intervenors filed, on April 28, an emergency motion with the Illinois Supreme Court, entitled "Emergency Motion for Supervisory Order Pursuant to Supreme Court Rule 383 To Unseal Court Records and Proceedings and Related Relief."

On May 2, defendant Kelly filed his "Objections" to the intervenors' motion before our supreme court. Defendant Kelly objected both to unsealing the transcripts of the closed proceedings and to vacating the decorum order, on the ground that these actions would endanger his right to a fair trial. Defendant Kelly stated that the case had received "world-wide publicity," and in support, he quoted a front-page, Chicago Tribune article that stated: "More than 330 reporters have expressed interest in covering the case with news agencies from as far away as France, Japan, Australia and England indicating they'll attend." The article, which was attached as an exhibit to defendant Kelly's objections, stated that a "[c]elebrity-obsessed culture will turn its eyes toward the R. Kelly trial next month" and that "hordes of reporters and cameramen [are] expected to descend" on the courthouse. Defendant Kelly also observed that the trial court was striking "a balance," since it had previously denied the motions of both the defense and the prosecution to prohibit the public from viewing the videotape in open court.

On May 5, 2008, the Illinois Supreme Court denied the intervenors' motion for a supervisory order. After the supreme court's denial, defendant Kelly renewed his objections before the trial court. On May 6, the State filed its response, opposing the intervenors' motion. On May 16, the trial court issued its order denying the intervenors' motion to obtain access and to vacate the Decorum Order. On June 10, the media intervenors filed a notice of appeal which appealed the May 16 order, but which did not seek an expedited appeal. This appeal followed.

(2) Documents Missing from the Appellate Record

This appeal concerns: four closed pretrial hearings, with the first closed hearing occurring on April 11; and certain documents, which were filed under seal and were sought in the intervenors' April 22 motion.

The record on appeal is missing certain documents. First, it does not contain the documents, filed under seal, that were sought by the intervenors, namely, the State's other-crimes motion, its supplemental answer, or the witness lists. Second, it does not contain the transcript of the public portion of the April 11 hearing.² In their brief to this court, the media intervenors stated that, on April 11, "the public was ejected from the courtroom." Presumably, if the public was ejected, then there had already occurred a public portion, for which we are lacking a transcript. The April 11 transcript in the record states that it is an "excerpt." The missing transcript may be significant, if the trial court made findings in open court, prior to closing the first proceeding.

During oral argument before the appellate court on October 29, 2009, the appellate court asked the assistant State's Attorney to list the times that the trial court made findings concerning closure. The assistant State's Attorney began:

"On the 11th, and it is in the record, the April 11, 2008 record at [page] 5. Prior to the April 11th closure, the court stated, in open court, the motion filed under seal was a matter that could affect the jury pool."³

In the above quote, when the assistant State's Attorney referred to a page number in the "record." She was not referring to the appellate record. In the ensuing colloquy, the assistant State's Attorney described a statement made by the trial court on April 15 that appeared "at the record at 8"; that statement appeared not on page 8 of the appellate record, but on page 8 of the individual transcript for the April 15th proceeding. Similarly, when she described a statement made by the trial court on April 24 that appeared "in the record at 10," that statement appeared not on page 10 of the appellate record, but on page 10 of the individual transcript for the April 24th proceeding. Presumably then, when the assistant State's Attorney observed, in the above quote, that the trial court made a finding in "the April 11, 2008 record at 5," she was referring to page 5 of the transcript of the open portion of the April 11th...