State ex rel. Cosmos Broadcasting Corp. v. Brown

Decision Date11 June 1984
Docket NumberWTOL-TV
Parties, 14 O.B.R. 481 The STATE, ex rel. COSMOS BROADCASTING CORPORATION, D.B.A.Toledo 11, et al., v. BROWN, Judge, Lucas County Court of Common Pleas. *
CourtOhio Court of Appeals
Syllabus by the Court

1. C.P.Sup.R. 11 and Canon 3A(7) are mandatory directives for trial courts in Ohio, not discretionary guidelines which the courts are free to disregard. Trial courts must permit the electronic media to record and broadcast criminal trials, unless a disqualifying factor in Canon 3 militates against doing so. If the trial court fails to make an adequate determination, Ohio law requires that broadcast coverage by the electronic media be permitted. (State, ex rel. Broadcasting Corp., v. Kessler, 64 Ohio St.2d 165, 413 N.E.2d 1203 , and State, ex rel. Grinnell Communications Corp., v. Love, 62 Ohio St.2d 399, 406 N.E.2d 809 , followed.)

2. A trial court cannot assume, based upon previous publicity about the trial of a criminal case, that further news coverage would materially compromise the possibility of a fair trial or otherwise impair the dignity of the proceedings.

3. A trial court must first exhaust all other less restrictive measures to determine if a fair trial can be had before denying broadcast coverage under C.P.Sup.R. 11 and Canon 3A(7). Only by proceeding in this manner can any decision on whether to limit broadcast coverage be consistent with the presumption of fairness that the rule and canon have been held to embody.

4. Absent a clear and convincing evidentiary basis in the record for finding that one of the disqualifying factors stated in Canon 3A(7)(c)(ii) is present, electronic news coverage in a criminal case must be permitted, subject only to the conditions and limitations of C.P.Sup.R. 11 and Canon 3A(7)(c)(i), (iii) and (iv).

5. There is no per se constitutional prohibition against electronic news coverage of courtroom proceedings in a criminal case. (Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740, followed.)

6. Under the First Amendment, the press and public are guaranteed a right of access to criminal trials. In practice, what goes on in a courtroom can only be effectively reported if the technology for doing so is permitted to be used. Consequently, under the First Amendment, the concept of equal access to courtroom proceedings and the effective reporting of courtroom events means at least this: unless there is an overriding consideration to the contrary, clearly articulated in the trial court's findings, representatives of the electronic news media must be allowed to bring their technology with them into the courtroom, even if only to a small degree (e.g., a single camera).

Thomas G. Pletz and Timothy C. McCarthy, Toledo, for relators.

Anthony Pizza, Pros. Atty., and James E. Yavorcik, Asst. Pros. Atty., for respondent.

HANDWORK, Judge.

This matter is before the court as an original action in which relators seek writs of mandamus and prohibition.

Relators are three Toledo-area television stations. Judge Lloyd O. Brown, 1 respondent herein, is the trial judge against whom relators seek the writs of mandamus and prohibition. Respondent is the presiding judge in a criminal case currently pending in the court below, State v. Robert Bryant, No. CR 84-5241. Bryant, the defendant, is charged with aggravated murder. His attorney, Terrence Jones, who will conduct the defense at trial, has been indicted for possession of cocaine, allegedly received as payment for defending Bryant.

The present action in this court arises from respondent's order of June 4, 1984, which denied relators' motion to broadcast, televise and record by electronic means the trial proceedings in the Bryant case. The order did not deny public or media access to the trial itself, but merely prohibited the in-court use of cameras, broadcast equipment or other electronic recording devices. The essential facts leading to respondent's June 4 order may be briefly stated.

On May 3, 1984, relators requested in writing respondent's permission to place a camera and cameraman in the courtroom where the Bryant trial would be held, once a jury was finally selected. On May 4, respondent summarily denied that request without a hearing. Later, on May 16 and 18, relators filed motions reiterating their requests for permission to use a single camera to film the trial. These motions also requested a hearing on the matter, but not until June 4 was one scheduled. At this hearing, counsel for relators informed the respondent judge that relators and their camera personnel, if granted permission to use their equipment, fully intended to adhere to the appropriate rules and restrictions for televising and recording criminal trials under Rule 11 of the Rules of Superintendence for the Courts of Common Pleas and Judicial Canon 3A(7) of the Code of Judicial Conduct.

During the hearing, the trial court asked for defense counsel's position on the motion. Counsel replied that his client did not wish his case to be televised, though he had "no particular reason" for opposing relators' motion. However, counsel also commented that his client felt "there [has been] enough publicity. He feels personally he has been disgraced enough, and he doesn't care to have any more television in the courtroom[.]" The prosecutor took no position either way.

After several additional comments from relators' counsel, the court proceeded to rule on the motion, stating in part:

"I've examined this question, not only today but on other occasions when the situation arose to determine whether or not in fact the televising of a trial to the public affects the fairness of that trial.

" * * *

"Of course the Court can only glean from its own experience and in reference to what has happened in past times when there was a permission or a denying of a permission for the media to broadcast."

The court referred to a Massachusetts gang-rape trial, commenting that the case had been televised and that someone wished to make it into a movie. The court continued:

"My personal experience came about when a local newspaper was permitted only to bring a camera into the courtroom inobstrusive in the rear, long focal plane lens, where photographs were taken of those persons that were witnesses. There were [sic] no taking of jurors' pictures. There was no taking of the broad array. But my personal experience is it did affect the testimony of each witness that testified when that person came before the Court."

Respondent then stated that thirteen newspaper articles had been published relating either to the Bryant case directly or to defense counsel's indictment for cocaine possession, allegedly received as payment for defending Bryant. The court characterized the case as "peculiar," noting also that defense counsel's trial on the cocaine charge was scheduled to begin after his client's trial. The court then concluded:

"It's going to be very difficult, I believe, in selecting a jury in this case to make sure that Mr. Bryant gets that fair tribunal. I do believe that based on the totality of the circumstances that any recording or photographs taken in this case would impair these proceedings and would not permit the defendant to have a fair trial. I believe that it would interfere in the defendant's ability to have a fair trial. So, the request of the television stations to televise this proceeding is denied."

The following day, June 5, relators commenced their action for writs of mandamus and prohibition in this court.

I

Before proceeding to the merits of this case, a preliminary issue must be resolved. On June 7, 1984, respondent filed a motion to dismiss relators' complaint in mandamus and prohibition, asserting several grounds in support thereof. Only one of these grounds warrants serious consideration here. 2

Respondent argues that relators' complaint is defective on its face for failing to comply with the statutory requirements for mandamus actions under R.C. 2731.04, which states, in pertinent part:

"Application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit. * * * "

The caption portion of relators' first amended complaint fails to aver that the action is brought "in the name of state on the relation of the [party] applying" for the writ. That failure alone has been held to be sufficient ground for denying the writ and dismissing the petition (or the complaint). See Maloney v. Court of Common Pleas (1962), 173 Ohio St. 226, 181 N.E.2d 270 ; Ort v. Hutchinson (1961), 114 Ohio App. 251, 181 N.E.2d 807 . Also, relators failed to identify themselves as corporate entities in the caption. However, on June 7, 1984, relators filed a motion to amend their first amended complaint to comply with R.C. 2731.04. Inasmuch as the Civil Rules apply to mandamus actions, see State, ex rel. Millington, v. Weir (1978), 60 Ohio App.2d 348, 397 N.E.2d 770 , and Civ.R. 8, 10 and 15 allow for liberal construction and amendment of the pleadings, it would appear that technical rules of form should not ordinarily obstruct a merit determination of the substantive issues. That, we will proceed to do. Accordingly, respondent's motion to dismiss relators' complaint herein is not well-taken, and the same is hereby denied. 3

II

As set forth in State, ex rel. Consolidated Rail Corp., v. Gorman (1982), 70 Ohio St.2d 274, 275, 436 N.E.2d 1357 :

"A writ of mandamus may issue only where the relator shows (1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate remedy in the ordinary course of the law. [Citations omitted.]"

A writ of prohibition will lie only when the relator establishes (1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power; (2) that the...

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