State ex rel. Herald Mail Co. v. Hamilton

Decision Date10 June 1980
Docket Number14837,Nos. 14799,s. 14799
Citation165 W.Va. 103,267 S.E.2d 544
CourtWest Virginia Supreme Court
Parties, 6 Media L. Rep. 1343 STATE ex rel. the HERALD MAIL COMPANY, a corporation v. The Honorable John M. HAMILTON, Judge, etc., et al. STATE ex rel. Robert LEACH v. The Hon. John M. HAMILTON, Judge, etc.

Syllabus by the Court

1. Article III, Section 14 of the West Virginia Constitution, when read in light of our open courts provision in Article III, Section 17, provides a clear basis for finding an independent right in the public and press to attend criminal proceedings. However, there are limits on access by the public and press to a criminal trial, since in this area a long-established constitutional right to a fair trial is accorded the defendant.

2. On a closure motion, the ultimate question is whether, if the pretrial hearing is left open, there is a clear likelihood that there will be irreparable damage to the defendant's right to a fair trial. Factors bearing on the issue of irreparable damage include the extent of prior hostile publicity, the probability that the issues involved at the pretrial hearing will further aggravate the adverse publicity, and whether traditional judicial techniques to insulate the jury from the consequences of such publicity will ameliorate the problem.

Jackson, Kelly, Holt & O'Farrell, F. Paul Chambers, Charleston, for Herald Mail Co. and for amicus curiae The Associated Press, et al., etc.

Sherbow, Shea & Tatelbaum, Theodore Sherbow and William A. Agee, Baltimore, Md., Stephen R. Dolly, Moorefield, for Herald Mail Co.

Steven M. Askin, Martinsburg, for Leach.

Oscar Bean, Pros. Atty., Moorefield, for respondent.

James R. Snyder, Charleston, for amicus curiae The Associated Press, et al., etc.

DiTrapano, Jackson & Buffa and Rudolph L. DiTrapano, Charleston, for amicus curiae Daily Gazette Co.

MILLER, Justice:

In this original writ of prohibition, the relator, The Herald Mail Company (Herald Mail), seeks to prohibit the enforcement of a closure order entered by the Circuit Court of Hardy County on February 27, 1980. The effect of this order was to bar members of the public and press from portions of a scheduled pretrial hearing in a murder case in which Robert M. Leach was the defendant.

Mr. Leach's counsel had filed with the trial court, in addition to a number of pretrial motions, a closure motion which in effect indicated that the defendant was willing to waive his right to a public and open pretrial hearing in order to avoid publicity that might jeopardize his right to a fair trial. Herald Mail, through one of its reporters, became aware of the closure motion and objected to it. The trial court permitted Herald Mail's counsel to appear and argue against the closure motion at a hearing on February 27, 1980.

At this hearing the court refused to order closure on the defendant's motion for bail, motion for bifurcated trial, motion in limine to preclude the State from referring to the name of the second murder victim during the trial involving the first murder victim, and defendant's motion to quash and abate the indictment.

However, the court did grant the closure motion in regard to "the admissibility of alleged statements made by the defendant to third parties and the evidence of defendant's mental state of mind at the time said statements were allegedly made . . . ." This language is contained in the court's order of February 27, 1980, which also held that "there is a clear and present danger of potential prejudice to the defendant's right to a fair trial should the public be allowed to hear the in camera proceedings."

It is this portion of the court's order granting closure which Herald Mail seeks to prohibit. At the February 27 hearing, of which a record was made, it was acknowledged by the trial court that "(t)here has been no undue publicity, and what has transpired in the community to date has been reserved, conservative and very proper." Defense counsel conceded at the hearing that as far as he could tell, "the press in this county . . . (has) . . . done nothing to prejudice Mr. Leach's right to a fair trial." Significantly, no facts were introduced at the hearing to show what publicity had been given to the case. Defense counsel did not specify how his client would be prejudiced if the suppression hearing were kept open.

Upon the joint motion of the prosecutor and the defense attorney, the court directed, by an order of February 6, 1980, that all the State's disclosures in response to defense discovery motions be sealed. At the February 27 hearing, the prosecutor and defense counsel agreed that the court could review this material to assist it in its ruling on the closure motion. The sealed disclosure material essentially consists of a lengthy written report of the State Police investigation of the murder which contained summary statements of witnesses, including those of several witnesses with whom the defendant allegedly discussed the crime after its commission.

Herald Mail urges that under Article III, Sections 14 and 17 of the West Virginia Constitution, the public and press have a right to be present during a criminal trial, including pretrial hearings. It also seeks to have this Court declare a right of access under our counterpart to the First Amendment to the United States Constitution Article III,--Section 7 of the State Constitution. We decline to decide this latter point, since the issue in this case can be resolved on the first constitutional ground.


Herald Mail recognizes that the claim it advances here was rejected by a sharply divided Court in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), and for this reason it seeks a resolution based on our State Constitution. The majority in Gannett held that the public has no constitutional right under the Sixth Amendment to the United States Constitution to attend criminal trials. This holding was predicated on the conclusion that the Sixth Amendment conferred the right to a public trial only on the accused and not on the public or press generally. As a consequence, the Court determined that the press, as a segment or agent of the public, had no constitutional right of access under the Sixth Amendment to a pretrial suppression hearing. 1

The crucial disagreement between the majority opinion and the dissent in Gannett involved whether the common law rule of open proceedings, applicable to both civil and criminal matters and requiring access by the public, had been incorporated into the public trial provision of the Sixth Amendment. The majority disposed of this issue by stating:

"Not many common-law rules have been elevated to the status of constitutional rights. The provisions of our Constitution do reflect an incorporation of certain few common-law rules and a rejection of others. . . ." (443 U.S. at 384-85, 99 S.Ct. at 2908, 61 L.Ed.2d at 624-25).

The majority's conclusion with respect to the Sixth Amendment was framed in recognition that there are separate and distinct provisions in many state constitutions which mandate that courts shall be open to all:

"The history (of the Sixth Amendment) totally fails to demonstrate that the Framers of the Sixth Amendment intended to create a constitutional right in strangers to attend a pretrial proceeding, when all that they actually did was to confer upon the accused an explicit right to demand a public trial. (Footnote omitted). In conspicuous contrast with some of the early state constitutions that provided for a public right to open civil and criminal trials (footnote omitted), the Sixth Amendment confers the right to a public trial only upon a defendant and only in a criminal case." (443 U.S. at 385-87, 99 S.Ct. at 2908-09, 61 L.Ed.2d at 625-26). (Emphasis supplied).

The Gannett dissent found that these early state constitutional provisions for open proceedings, together with the common law requirement of public access to trials, did give a right of trial access to the public and press under the Sixth Amendment.

It may thus be said that the Court was unanimous in its recognition of the common law rule of open proceedings embodied in many state constitutions, but divided on the issue of whether this rule was imported into the Sixth Amendment.

In the present case, we believe that our counterpart to the Sixth Amendment--Article III, Section 14 of the West Virginia Constitution-- 2 when read in light of our open courts provision in Article III, Section 17, 3 provides a clear basis for finding an independent right in the public and press to attend criminal proceedings.

Read literally, Article III, Section 14 is not simply a counterpart to the Sixth Amendment, 4 for our constitutional provision does not couch the right to a public trial in terms of a right conferred on the defendant. Rather, it states a broader right: "Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be . . . public . . . ." (Emphasis supplied). Thus, the right under our State Constitution is not limited by a reference to the accused, but mandates that the trial itself shall be public.

We have not had occasion to explore the public trial right under Article III, Section 14, to any great extent. In State ex rel. Varney v. Ellis, 149 W.Va. 522, 142 S.E.2d 63 (1965), we held in Syllabus Points 1 and 2:

"Under Section 14 of Article III of the Constitution of West Virginia, it is mandatory that one charge with the commission of a crime be afforded a public trial."

"One charged with a crime is not afforded a public trial within the meaning of Article III, Section 14, of the Constitution of West Virginia when his trial on said charge is held in the office of the county jailer."

The defendant in Varney sought a public trial, and this Court thus did not decide whether Article III, Section 14, confers a general right of access to the trial by the public. It cannot be doubted, however, that when the English...

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    ...of justice. One fundamental aspect of our Anglo-American system of justice is its openness. In State ex rel. Herald Mail Co. v. Hamilton, 267 S.E.2d 544, 547-49 (W.Va.1980), this Court traced the common law origins of the "open courts" provision contained in our own and in other state const......
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