Rockdale Citizen Pub. Co., Inc. v. State, S96A0603

• Decision Date: 15 April 1996
• Docket Number: No. S96A0603,S96A0603
• Citation: 266 Ga. 579,468 S.E.2d 764
• Parties: , 24 Media L. Rep. 1957 The ROCKDALE CITIZEN PUBLISHING CO., INC. v. The STATE of Georgia et al.
• Court: Georgia Supreme Court

Page 764

468 S.E.2d 764

266 Ga. 579, 24 Media L. Rep. 1957

The ROCKDALE CITIZEN PUBLISHING CO., INC. v. The STATE of Georgia et al.

No. S96A0603.

Supreme Court of Georgia.

April 15, 1996.

Rockdale County Superior Trial Judge: Hon. Clarence R. Vaughn, Jr. No. 94CR1709V.

William H. Major, William B. Brown, Heyman & Sizemore, Atlanta, for Rockdale Citizen Pub. Co., Inc.

Cheryl Fisher Custer, Dist. Atty., Conyers, Calvin A. Leipold, Jr., Decatur, John J. Martin, Jr., Martin & McGuire, P.C., Avondale Estate, for Appellees.

Gerald R. Weber, American Civil Liberties Union, Atlanta, Amy R. Wolverton, Alston &amp Bird, Atlanta, Stephen J. Wermiel, Georgia State University, Atlanta, David E. Hudson, James B. Ellington, Hull, Towill, Norman & Barrett, P.C., Augusta, Roy E. Barnes, Barnes, Browning, Tanksley & Casurella, Marietta, Peter C. Canfield, James A. Demetry, James W. Kimmell, Jr., Dow, Lohnes & Albertson, Atlanta.

HUNSTEIN, Justice.

In Rockdale Citizen Publishing Company v. State of Georgia, 266 Ga. 92, 463 S.E.2d 864 (1995), this Court reviewed an order of the Superior Court of Rockdale County closing to the press and public all pretrial evidentiary hearings in the pending capital prosecution against Marvin Earl Turner, Jr. A majority of this Court found that there was evidence adduced to support the superior court's conclusion that a clear and present danger existed to Turner's right to a fair trial. Id. at 93(1), 463 S.E.2d 864. However, because the superior court's order failed to articulate fully its consideration of alternatives to closure, see R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982), this Court vacated the order and remanded the case. On remand, the superior court granted Turner's motion for change of venue and directed the case to be heard by a jury selected in Hall County. However, the superior court also ordered closure of all pre-trial evidentiary hearings to everyone except trial participants. ¹ The publisher of the local daily newspaper, The Rockdale Citizen, appeals to this Court, pursuant to Lumpkin, supra at (2). We reverse the superior court because its closure ruling clearly violates this Court's holding in Lumpkin.

Lumpkin mandates that a motion for closure

be supported at the hearing by the movant by evidence constituting "clear and convincing proof" that no means available other than closure of the hearing will serve to protect the right of the movant.

Id. at 580(5), 292 S.E.2d 815. A review of the record and the superior court's order establishes uncontrovertedly that there was no evidence adduced in this case to support the superior court's finding that there is a "clear and present danger" that Turner will not receive a fair trial before the jurors from the changed-venue county. Instead, the superior court based its finding on speculation regarding the media coverage that might occur in Hall County to which Hall County residents might be exposed and assumed that this speculative coverage would be so inflammatory that Turner's right to a fair trial would be prejudiced in the absence of closure. ²

Assumptions and speculation cannot provide the "clear and convincing proof" required by Lumpkin to justify closure. "Clear and convincing proof" necessarily involves concrete, tangible evidence that can be made part of and attached to the record to enable appellate review of a trial court's decision on an issue of constitutional magnitude. "Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness." (Emphasis supplied; footnote omitted.) Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984). Assumptions and speculation can never justify the infringement on First Amendment rights which the closure of criminal proceedings creates.

The superior court explained its closure and venue change rulings by stating that as a result thereof, "the Defendant will have the benefit of a jury pool that will not be privy to pre-trial evidentiary hearings, arguments, and rulings." The Federal and Georgia Constitutions do not entitle a defendant to a jury wholly ignorant of all aspects of the crimes charged and legal proceedings brought against him; rather, a defendant is entitled only to a fair and impartial jury that can render a verdict based solely on the evidence presented in court. See Irvin v. Dowd, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961); Chancey v. State, 256 Ga. 415, 425, 349 S.E.2d 717 (1986). A criminal defendant's right to a fair trial is not placed in clear and present danger by media coverage of pre-trial hearings that provide the public with accurate, responsible, non-inflammatory reports of the matters raised in those hearings: "pretrial publicity--even pervasive, adverse publicity--does not inevitably lead to an unfair trial." Nebraska Press Association v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976).

Given the change of venue in this case, there exists no evidence to support closure of all pre-trial evidentiary hearings in this capital prosecution, wherever held. The superior court's order closing all pre-trial evidentiary hearings in this case is accordingly reversed.

Judgment reversed.

All the Justices concur except CARLEY and THOMPSON, JJ., who concur specially.

SEARS, Justice, concurring.

Because the public's First Amendment rights, as well as the defendant's right to a public trial, are the very preconditions to our free society and to public confidence in the functioning of our government, courts must guard them with jealous attention and view with suspicion all attempted encroachments thereof. In fact, we must do our very best to hold fast to the values embodied by the First Amendment even in extreme and painful cases, because we cannot suspend it and remain all that we strive to be. The majority, by accepting nothing less than strict compliance with the requirements of R.W. Page Corp. v. Lumpkin, ¹ correctly "gives greater weight to the value of [these liberties] than to the danger of their misuse." ² I fully concur.

CARLEY, Justice, concurring specially.

In Rockdale County, Marvin Turner was indicted for murder. Turner and the State moved to close the pre-trial proceedings to the press and public and, after conducting a hearing, the trial court granted the motion. On appeal, however, we vacated the trial court's order and remanded "for consideration of the alternatives to closure." Rockdale Citizen Publishing Co. v. State, 266 Ga. 92, 94(1), 463 S.E.2d 864 (1995). Even though Turner had been granted a change of venue to Hall County in the meantime, the trial court on remand nevertheless entered a new closure order. A majority of this court now reverses the trial court's renewed closure order and I am constrained to concur in that judgment of reversal. However, I neither agree with all that is said by the majority nor do I believe that the majority opinion furnishes sufficient guidance for the bench and bar. Accordingly, I must concur specially.

This court's opinion in the first appeal establishes as the law of the case that, prior to the change of venue, some remedial measure was necessary, because the highly inflammatory pre-trial publicity constituted "clear and convincing proof" of "a clear and present danger" to Turner's right to a fair trial in Rockdale County. Rockdale Citizen Publishing Co. v. State of Ga., supra at 93(1), 463 S.E.2d 864. Thus, the only question to be addressed by the trial court on remand was whether closure of the pre-trial proceedings was the appropriate remedial measure to protect Turner's right to a fair trial in Rockdale County. In this state, closure is not an available remedy unless there is clear and convincing proof that no other alternative will protect the defendant's right to a fair trial. Rockdale Citizen Publishing Co. v. State of Ga., supra at 93(1), 463 S.E.2d 864; R.W. Page Corp. v. Lumpkin...