Rockdale Citizen Pub. Co. v. State, S95A1272

• Decision Date: 20 November 1995
• Docket Number: No. S95A1272,S95A1272
• Citation: 266 Ga. 92,463 S.E.2d 864
• Parties: , 24 Media L. Rep. 1120 ROCKDALE CITIZEN PUBLISHING CO. v. The STATE et al.
• Court: Georgia Supreme Court

Page 864

463 S.E.2d 864

266 Ga. 92, 24 Media L. Rep. 1120

ROCKDALE CITIZEN PUBLISHING CO. v. The STATE et al.

No. S95A1272.

Supreme Court of Georgia.

Nov. 20, 1995.

Reconsideration Denied Dec. 15, 1995.

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

Carla E. Brown, Lawrenceville, R. Stephen Roberts, Peters, Townsend, Wilson & Roberts, Decatur, Cheryl Fisher Custer, Dist. Atty., Conyers, J.M. Raffauf, for State.

Edward D. Tolley, Ronald E. Houser, Cook, Noell, Tolley & Wiggins, Athens, Peter C. Canfield, James A. Demetry, James W. Kimmell, Jr., Sean R. Smith, Gerald R. Weber, Dow, Lohnes & Albertson, Atlanta, Roy E. Barnes, Barnes, Browning, Tanksley & Casurella, Marietta, G. Conley Ingram, Ben F. Johnson III, Judson Graves, Daniel A. Kent, Alston & Bird, Atlanta, Robert L. Rothman, Arnall, Golden & Gregory, Atlanta, James C. Rawls, Anderson, Walker & Reichert, Atlanta, Walter H. Bush, Jr., Macon, amici curiae.

THOMPSON, Justice.

The State is seeking the death penalty against Marvin Earl Turner, Jr., and two others, for the murder of Cleophus Ammons in Rockdale County. The Rockdale Citizen, the local daily newspaper, published approximately fifteen articles and at least one editorial concerning the crime and Turner's alleged involvement.

The articles were highly inflammatory: They set out details of Turner's alleged confession with regard to the kidnapping and "execution-style" slaying of Ammons, a grocery store clerk; they described the "torture" of Ammons with "red hot spoons" over a period of several hours; they reported that Turner and the others took turns shooting Ammons in the head through a pillow; they stated that Turner prayed for Ammons and for himself; they made references to other "gang" activities. Nearly all of these articles appeared on the front page of the paper.

The Rockdale Citizen is circulated widely in Rockdale County. Of the 18,337 households in the distribution area, 10,486 households subscribe to the newspaper, and it is estimated that every paper is read by three people.

Fearful that pretrial publicity would prejudice his right to a fair trial, Turner filed a motion to close the pretrial proceedings to the press and general public. The State agreed with Turner and likewise moved to close the pretrial hearings. The newspaper opposed the motions.

Following a hearing, the trial court granted the motions for closure. It decided that no one (except trial participants) would be allowed in the courtroom when a pretrial motion addressing evidentiary matters was being heard. It also restrained the parties, attorneys, witnesses and court personnel from releasing information concerning what transpired at the pretrial proceedings. It ruled, however, that the hearings would be transcribed and made available to the press and public as soon as a jury is selected and sequestered.

The trial court based its decision on the following findings: 1. The State is seeking the death penalty against Turner. 2. The pretrial publicity is extensive and highly prejudicial. 3. If pretrial publicity of this nature were to continue, there is a severe danger that a fair and impartial jury could not be selected in Rockdale County. 4. The State is seeking the death penalty against Turner's co-defendants and their right to a fair trial must also be protected.

In making its decision, the trial court stated that it considered the alternative remedies set out in R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982), and found them to be "insufficient due to the unique circumstances of this case." The trial court concluded: "[N]o other measure will ... protect the rights of the accused to a fair trial." The newspaper appeals.

1. While Georgia law dictates that all facets of a criminal trial should be and remain open to the press and public, R.W. Page Corp. v. Lumpkin, supra, closure can be ordered when the defendant's right to a fair trial is jeopardized by a clear and present danger. Id. at 579, 292 S.E.2d 815. See also Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2214, 81 L.Ed.2d 31 (1984) (right to open trial must be balanced with right to fair trial). Of course, closure should only be ordered in rare circumstances, when no alternative course of action will protect a defendant's right to a fair trial. Lumpkin, supra at 579.

The burden is on the defendant, or another movant, to present clear and convincing proof of the need for closure. The burden can be carried more easily, however, where closure of a pretrial hearing is sought because, at that stage of the proceedings, some of the alternatives to closure ¹ are absent. Lumpkin, supra 249 Ga. at 580, fn. 11, 292 S.E.2d 815.

The trial court concluded that the pretrial publicity presented a clear and present danger to Turner's right to a fair trial. The proof adduced in this case could well support that conclusion. However, a closure order must fully articulate the alternatives to closure and the reasons why the alternatives would not protect the movant's rights. Lumpkin, supra at 580(6), 292 S.E.2d 815. See also Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 14, 106 S.Ct. 2735, 2743, 92 L.Ed.2d 1 (1986) (preliminary hearing can be closed only upon specific findings that defendant's right to fair trial will be prejudiced and reasonable alternatives to closure cannot protect defendant's rights). Here the trial court stated, in a conclusory fashion, that it considered the alternatives to closure and found them to be insufficient under the circumstances of this case. The trial court's statement in this regard was not specific enough to enable us to determine that the closure order was entered properly. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984) (findings justifying closure must be sufficient for appellate review). Accordingly, we remand for consideration of the alternatives to closure. If the trial court again concludes that the alternatives would not afford the movants an adequate remedy, it shall fully articulate the reasons for its conclusion.

2. Under the closure order, a pretrial hearing that was devoted to a motion to recuse the trial judge was also closed. Because evidentiary matters pertaining to the prosecution's case were not going to be presented at the recusal hearing, this ruling was erroneous.

Judgment vacated and remanded in part, and reversed in part.

All the Justices concur, except HUNSTEIN, J., who concurs specially.

HUNSTEIN, Justice, concurring specially.

The trial court closed all pretrial evidentiary hearings in the murder trial of Marvin Earl Turner, Jr. to the press and public to avoid the dissemination of information that the trial court found presented a clear and present danger that Turner's right to a fair trial would be prejudiced. Although the record in this case establishes that the articles adduced in support of the closure motion consisted of accurate, responsible, non-inflammatory recountings of the investigation of the crime and subsequent arrest and prosecution of Turner and his co-defendants, the majority found that certain information published in appellant newspaper was "highly inflammatory" and focuses on this information as "proof adduced [that] could well support" a closure order upon remand. Majority opinion, p. 866. While I can concur in the majority's decision that the closure motion be remanded to the trial court for compliance with the explicit and exacting requirements of R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982), as opposed to the perfunctory, superficial analysis applied by the trial court, see Southeastern Newspapers Corp. v. State of Georgia, 265 Ga. 223, 454 S.E.2d 452 (1995), I cannot agree with the majority that the factually-accurate information disseminated by the press was "highly inflammatory," nor, under the circumstances present here, can I agree that mere publication of this information can support closure.

The victim in this case was killed in a dreadful,...