Richmond Newspapers, Inc. v. Com.
| Decision Date | 11 September 1981 |
| Docket Number | 810666,801198 and 801199,Nos. 801370,LANCE-STAR,801580,s. 801370 |
| Citation | 222 Va. 574,281 S.E.2d 915 |
| Parties | , 7 Media L. Rep. 1897 RICHMOND NEWSPAPERS, INC. v. COMMONWEALTH of Virginia, et al. The FREEOF FREDERICKSBURG, et al. v. COMMONWEALTH of Virginia, et al. RICHMOND NEWSPAPERS, INC. v. COMMONWEALTH of Virginia, et al. In re RICHMOND NEWSPAPERS, INC. In re RICHMOND NEWSPAPERS, INC. Record |
| Court | Virginia Supreme Court |
Alexander Wellford, Richmond (Andrew J. Brent, William F. Etherington, Richmond, Russell H. Roberts, Fredericksburg, Christian, Barton, Epps, Brent & Chappell, Richmond, Roberts & Ashby, Fredericksburg, on briefs), for appellant.
Walter H. Ryland, Chief Deputy Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellees.
Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.
At issue in these cases is whether the public and the press have a constitutional right to attend pretrial proceedings in criminal cases, and, if so, how that right should be balanced against an accused's constitutional right to a fair trial. This conflict between fair trial and free press is "almost as old as the Republic." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 547, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976).
These consolidated cases (three appeals and two original petitions) arise out of three criminal prosecutions. 1
The following facts are undisputed.
A Northumberland County grand jury indicted Ernst Edard Hoard for murder. On February 25, 1980, his counsel filed a motion to suppress certain statements made by Hoard. At the hearing on the motion, held February 28, 1980, Hoard moved for closure and the Commonwealth's Attorney concurred. A reporter for Richmond Newspapers, Inc., present in the courtroom, objected to closing the hearing to the public and requested an opportunity to have counsel present at a hearing on the closure motion. The trial court responded:
The following day Richmond Newspapers petitioned the court for permission to intervene "for the purpose of asserting defenses to any closure motions which may be made in this case." By order entered that day nunc pro tunc February 28, 1980, the hearing was closed and "(t)he objection of Richmond Newspapers, Inc., intervenor, ... to the closure of the hearing ... without a hearing on the closure in which counsel for the intervenor could participate, is noted and is hereby overruled."
Subsequently, counsel for Richmond Newspapers wrote a letter to the Commonwealth's Attorney and Hoard's counsel, with a copy to the clerk of court, advising that Richmond Newspapers had been permitted to intervene for the purpose of objecting to closure. The letter further stated that "(i)f there are to be any further motions for closure, please give this firm notice of intention to make the motions so that we may be present and have the opportunity to be heard."
On July 10, 1980, Hoard filed motions to change venue and to suppress certain photographs. These motions were heard by the court on July 22. The motion to change venue was heard in open court and was granted. 2 After the hearing on change of venue, Hoard moved for a closed hearing on the suppression motion.
Three newspaper reporters 3 voiced objection to closure and requested an opportunity to have counsel present and to record the proceedings. The Commonwealth's Attorney concurred in Hoard's closure motion. 4 The trial court held:
this hearing ..., it's not the trial itself, it's a preliminary motion, and we think it's in the interest of seeing that this defendant gets a fair trial and, also, for other reasons, the hearing will be closed ....
As far as the statements made to the Court by members of the press concerning the right to be heard, we will grant any counsel the right to be heard. We are not going to sit here and wait for counsel to come down and be heard ....
The trial judge observed that he did not "believe this Court has been given any strict guidelines to follow in ruling on such a motion." Thereafter, a closed suppression hearing was conducted, and the court refused to suppress the photographs. 5
The court, on August 1, 1980, entered an order nunc pro tunc July 22, 1980, closing the suppression hearing on authority of Code § 19.2-266 6 and overruling Richmond Newspapers' objection. Richmond Newspapers appealed from this order and also filed original petitions for writs of mandamus and prohibition in this Court.
Paul Myron Stephens was indicted for two murders by a Caroline County grand jury. He filed written motions for a change of venire and for the suppression of certain evidence which were heard on July 8, 1980. At that time, Stephens moved to close the hearings on both motions, contending that closure was necessary to protect his rights. The Commonwealth's Attorney opposed closure.
The trial court refused to close the hearing on the motion to change venire and that motion was denied. Thereafter, the trial court refused to close the suppression hearing, stating it did so on the "assumption that the substance of this motion can be covered adequately and properly without the necessity of going into the substance of the statement." The court further stated that "(i)f that proves to be impossible, then I will reconsider the motion."
Following a conference with counsel, the court announced:
Gentlemen, counsel have represented to me through some explanation that it is impossible to go into the circumstances surrounding this motion without going to some extent into the substance of the evidence sought to be suppressed. It's very important to the integrity of this proceeding and to the Court's ability to afford both the Commonwealth and the accused a fair trial; that neither side ... be hamstrung in its exploration of the circumstances surrounding this motion. I don't want either side to have to mince words out of concern for what might be spread abroad. I know of no way to insulate the proceedings on this motion from public broadcast. It's not as though the jury who were going to try this case had been impaneled and had been sequestered. I know of no way to protect the evidence and the circumstances which may be elicited in this hearing except ... to close the hearing. I must take note that we are now a ... week and a day ... from trial and the publicity at this time will have a different qualitative effect from publicity months ago, and I think that there is no alternative but for me to determine that there is an overriding need for me to close the hearing. I think to do otherwise would be to significantly, perhaps fatally, jeopardize the integrity of this proceeding. Therefore, the motion to close the hearing will be granted ....
At that point, three representatives of the press (including reporters for Richmond Newspapers and The Free Lance-Star) objected to closure and requested an opportunity to be heard and to have counsel present. The court responded that it was not going to delay the proceeding and, in a closed hearing, denied the suppression motion. 7
On July 10, The Free Lance-Star and Richmond Newspapers filed a petition to intervene for the purpose of appealing the court's closure order. The court entered an order closing the suppression hearing "pursuant to Virginia Code Section 19.2-266 and for the reasons stated from the bench," and overruled the newspapers' objections.
Ida Catherine Jackson was indicted for murder by a Greene County grand jury. The Commonwealth's Attorney and Jackson's counsel jointly filed a motion in limine which was heard on March 3, 1981. At the hearing, the Commonwealth's Attorney moved for closure, arguing that:
(i)n order for the Court to make an intelligent ruling on this matter, it will be necessary for me to disclose certain items that I expect to be able to produce into evidence and I, it's my opinion shared in by Mr. Chandler (Jackson's counsel) that ... it might imperil the right of Mrs. Jackson to an impartial jury if these were disclosed to the press at this time ....
Jackson concurred in the closure motion. Thereupon, a reporter for Richmond Newspapers objected to closure and asked for a delay until counsel could appear. The trial court stated that the reporter had no standing in the matter and that it would not delay the proceedings.
Following the closed hearing, the trial court stated it had been advised prior to closure that:
a proffer of expected evidence would be made which could be highly prejudicial and would potentially interfere with a fair trial .... (t)he Court having heard the offer of expected evidence, finds that it is highly prejudicial and that if offered in open court might substantially interfere with a fair trial for the accused. We find that the closing of the hearing in this joint motion was necessary to prevent substantial prejudice which would prevent a fair trial in this case.
Richmond Newspapers' petition to intervene for the purpose of challenging the trial court's action was filed March 17, 1981, and was heard on March 24. The trial court permitted intervention "for the limited purpose as set out in the petition," and an order to that effect was entered March 24, nunc pro tunc March 3, closing the hearing "to the public and the press pursuant to Virginia Code Section 19.2-266 and for the reasons stated from the bench," and overruling the Newspapers' objection to closure. 8
The right of an accused to a fair trial has been called "the most fundamental of all freedoms." Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965). Central to this "basic requirement of due process," In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), is the concept of trial by an impartial jury...
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