State ex rel. Beacon Journal Pub. Co. v. Kainrad

• Decision Date: 08 June 1976
• Docket Number: No. 76-75,76-75
• Citation: 348 N.E.2d 695,46 Ohio St.2d 349,75 O.O.2d 435
• Parties: , 75 O.O.2d 435, 2 Media L. Rep. 1123 The STATE ex rel. the BEACON JOURNAL PUBLISHING COMPANY et al. v. KAINRAD, Judge.
• Court: Ohio Supreme Court

Page 349

46 Ohio St.2d 349

348 N.E.2d 695, 75 O.O.2d 435, 2 Media L. Rep. 1123

The STATE ex rel. the BEACON JOURNAL PUBLISHING COMPANY et al. v. KAINRAD, Judge.

No. 76-75.

Supreme Court of Ohio.

June 8, 1976.

Syllabus by the Court

Where the constitutional right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuances, changes of venue, jury instructions or sequestration of the jury, the press and public cannot be excluded from a criminal trial or hearing and no order can be made which prohibits the publishing of news reports about statements made or testimony given during such proceedings until all other measures within the power of the court to insure a fair trial have been found to be unavailing or deficient.

This is an original action by the relators, The Akron Beacon Journal Publishing Company and John M. Dunphy, a reporter, seeking a writ prohibiting the enforcement of an order issued by the respondent, Judge Joseph Kainrad of the Court of Common Pleas of Portage County.

Judge Kainrad ordered '* * * all representatives of the press or news media * * * not to publish or report any statements made or testimony given in the trial of Kenny James McDaniels concerning the claimed participation of Ralph Francis Garduno, a. k. a. Ralph F. Garduno, in any criminal activity.'

McDaniels and Garduno were jointly indicted for aggravated murder in the fall of 1975. Upon request of counsel, the two defendants were granted separate trials. The trial of Kenny James McDaniels began January 26, 1976, and was in progress before Judge Edwin W. Jones when Judge Kainrad issued his order. Garduno's trial was scheduled to begin before Judge Kainrad on February 9, 1976. Judge Kainrad testified that he thought that statements and testimony in the McDaniels trial 'would * * * indicate' that 'McDaniels, was more or less along for the ride, and that the conduct was committed by the defendant Garduno'; that the publicity from the McDaniels trial 'could well prejudice his (Garduno's) right to a fair trial,' and stated in his order that such publicity 'may jeopardize' the right to an impartial jury.

Neither McDaniels, through counsel, nor Judge Jones requested Judge Kainrad to issue the order. Apparently, Garduno's counsel orally requested Judge Kainrad to take action, although no written motion was filed. Judge Kainrad held no hearing prior to issuing the order. It was served upon representatives of the relator, The Akron Beacon Journal, and the Ravenna Record Courier, in Judge Jones' courtroom while the reporters were attending the McDaniels trial.

The original complaint in prohibition was filed in this court January 27, 1976. An alternative writ of prohibition was allowed on January 28.

Brouse & McDowell Co., L. P. A., Norman S. Carr, Akron, John W. Solomon, Stow, Vorys, Sater, Seymour & Pease and Herbert R. Brown, Columbus, for relators.

Robert A. Durst, Kent, for respondent.

C. WILLIAM O'NEILL, Chief Justice.

The question before this court is: Shall a permanent writ be granted?

If the writ is denied and the alternative writ now in effect is thus terminated, the broad order of the trial court not to publish will be in effect. It is a continuing order of unlimited duration and would prohibit the relators and other news media from ever publishing McDaniels' statements regarding Garduno's 'participation in any criminal activity' at any time.

At the time this case was submitted, it was undisputed that 'McDaniels' mitigation hearing has not yet been conducted nor has McDaniels been sentenced.' The January 26 order literally prevents relators from ever reporting in the future McDaniels' pronouncements made in court under oath.

Judge Kainrad testified that the order was still pending, that he did not anticipate issuing any other order, that he felt it was appropriate to issue the order at the time and that he still felt that it was an appropriate order, and that if the same circumstances came up again, he would issue the same order.

A majority of this court is of the opinion that this case it, therefore, not moot.

Judge Kainrad's order created a confrontation between the First Amendment right of freedom of the press, and Garduno's Sixth Amendment right to a fair trial by an impartial jury.

The relators do not contend that the First Amendment guarantees absolute unfettered freedom of the press in all cases and under all circumstances.

The relators assert that 'where the right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuance, change of venue, jury instructions, or sequestration of the jury, the press and public cannot be excluded from any aspect of criminal judicial proceedings.'

The respondent's position is stated in his proposition of law No. 2:

'Where there is a clear and present probability that pretrial publicity will hinder and delay the speedy impaneling of an impartial jury, and possibly require a change of venue, a trial judge is under a duty to appraise the substantiality of the danger posed by the publicity, to balance the competing requirements of free press and fair trial, and to then make such order as required by the circumstances in order to avoid last resort alternatives, such as a continuance or a change of venue.'

The controlling issue in this cause is thus sharply drawn.

The majority of this court is of the opinion that where the constitutional right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuance, change of venue, jury instructions or sequestration of the jury, the press and public cannot be excluded from a criminal trial or hearing and no order can be made which prohibits the publishing of news reports about statements made or testimony given during such proceedings.

An order not to publish cannot be considered unless the circumstances are imperative, and it appears clearly in the record that a defendant's right to a fair trial will be jeopardized and that there is no other recourse within the power of the court to protect that right or minimize the danger to it.

Before issuing any such order not to publish, it is obligatory upon the court to hold a hearing and make a finding that all other measures within the power of the court to insure a fair trial have been found unavailing and deficient. ¹

Although the specific question at issue in the instant cause was not decided in Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, Justice Clark, writing for the court, set forth the principles of law which are applicable here. After describing the inflammatory publicity in the press about the Sheppard case and detailing the prejudicial influences allowed within the court room during that trial and the atmosphere surrounding the trial by reason of the publicity, Justice Clark said, at page 358, 86 S.Ct. at page 1519:

'* * * the judge never considered other means that are often utilized to reduce the appearance of prejudicial material and to protect the jury from outside influence.'

Speaking for eight members of the court, he continued:

'We conclude that these procedures would have been sufficient to guarantee Sheppard a fair trial and so do not consider what sanctions might be available against a recalcitrant press * * *.'

Justice Clark then set out in detail a number of specific actions which the court could have taken 'to guarantee Sheppard a fair trial.' (See pages 357 to 363, 86 S.Ct. at page 1520 inclusive.)

The actions available and applicable in the instant cause are voir dire, continuance, change of venue, jury instructions and sequestration of the jury. Speaking directly to these available alternative measures, Justice Clark said, at pages 362 and 363, 86 S.Ct. at page 1522:

'* * * Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel.' (Emphasis added.)

Another case decided by the United States Supreme Court, which supports the proposition that the media is free to report proceedings and vents which transpire in the courtroom, is Estes v. Texas (1965), 381 U.S. 532, at page 541, 85 S.Ct. 1628, at page 1632, 14 L.Ed.2d 543, wherein Justice Clark, writing for the court, said:

'It is true that the public has the right to be informed as to what occurs in its courts, but reporters of all media * * * are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media. This was settled in Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), and Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946), which we reaffirm.'

That statement of the law is repeated in Times-Picayune Publishing Corp. v. Schulingkamp (1974), 419 U.S. 1301, at page 1307, 95 S.Ct. 1, 42 L.Ed.2d 17 by Justice Powell.

In Wood v. Goodson (1972), 253 Ark. 196, 485 S.W.2d 213, the Supreme Court of Arkansas held:

'No court has the power to prohibit the news media from publishing that which transpires in open court * * *.'

A case directly on point with the instant cause in New York Times Co. v. Starkey (1976), 51 A.D.2d 60, 380 N.Y.S.2d 239. The Supreme Court, Appellate Division, held, at pages 243-244:

'* * * Precisely because 'a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field' (Shepard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600), and because the press is the instrument by which the public is informed of current events, only...