State v. Cianci, s. 84-31-M

• Decision Date: 22 July 1985
• Docket Number: Nos. 84-31-M,s. 84-31-M
• Citation: 496 A.2d 139
• Parties: 11 Media L. Rep. 2403 STATE v. Vincent A. CIANCI, Jr., et al. P., 84-83-M.P.
• Court: Rhode Island Supreme Court

Page 139

496 A.2d 139

11 Media L. Rep. 2403

STATE v. Vincent A. CIANCI, Jr., et al.

Nos. 84-31-M.P., 84-83-M.P.

Supreme Court of Rhode Island.

July 22, 1985.

Joseph V. Cavanagh, Edward F. Hindle, John D. Deacon, Jr. (Edwards & Angell), Providence, Arlene Violet, Atty. Gen., Thomas Dickinson, Sp. Asst. Atty. Gen., for plaintiff.

John Tramonti, Jr., Providence, for Vincent Cianci.

OPINION

SHEA, Justice.

This case challenges a protective order sealing pretrial discovery documents in a controversial, well-publicized criminal case.

Vincent A. Cianci, Jr., former Mayor of the City of Providence, was indicted for extortion, assault with a dangerous weapon, kidnapping, conspiracy, and simple assault. In the preparation of his defense of that action, defendant requested discovery from the state pursuant to Rule 16 of the Superior Court Rules of Criminal Procedure. On August 4, 1983, defendant and the state both requested that pretrial discovery be sealed from the public. The court, without a hearing, entered an order providing that all discovery material should be sealed. On March 5, 1984, prior to trial, Cianci entered a plea of nolo contendere to one count of assault with a dangerous weapon and one count of simple assault. The remaining counts were dismissed. Cianci was sentenced to five years at the Adult Correctional Institutions on the assault-with-a-dangerous-weapon charge, the execution of which was suspended, and he was placed on probation for five years. He was sentenced to one year on the simple-assault charge, which sentence was also suspended, with one year's probation. As a result of his sentence, Cianci was forced to vacate the office of Mayor of the City of Providence on April 25, 1984. See Gelch v. State Board of Elections, R.I., 482 A.2d 1204 (1984).

In the interim, the Providence Journal Company (the Journal) and the Outlet Company, doing business as WJAR (intervenors), filed motions for leave to intervene and sought to have set aside the order that had sealed the discovery documents. Following a hearing, the court entered an order granting the motion for leave to intervene but denied the motion to vacate the order sealing the discovery.

On May 24, 1984, this court granted a petition for certiorari by the Journal and WJAR to review the Superior Court action. At the same time we granted a petition for certiorari by Cianci in which he sought review of the Superior Court's decision permitting the Journal and WJAR to intervene. These petitions were ordered consolidated for hearing. The questions raised in these petitions are whether the Superior Court justice erred in refusing to vacate the order sealing discovery and whether it was error to permit the media to intervene.

At issue here are the competing rights and interests of the parties--defendant's right to a fair trial balanced against the right of the press or public to have access to criminal proceedings. This is not a case of direct prior restraint since the court has not sought to prohibit the press from publishing any information it may have gathered. Rather, the issue is narrowed to the right of the press and the public to have access to documents obtained through the discovery mechanism of Rule 16 of the Superior Court Rules of Criminal Procedure. Nevertheless, we are of the opinion that the same fair-trial considerations are present at all phases of the proceedings; therefore, our holding today is not limited to the facts in this record.

Generally in criminal cases the sealing of court records or proceedings is done with a view toward protecting the rights of the defendant to a fair trial. Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620 (1966); Estes v. Texas, 381 U.S. 532, 538, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543, 548 (1965). In the posture in which these petitions were presented, those factors no longer existed because defendant had entered a plea and had been sentenced. The case effectively had come to an end on March 5, 1984. Consequently, on this state of the record, there does not now exist any threat to defendant's Sixth Amendment right to a fair trial. In these circumstances the claims of these parties are technically moot, and ordinarily this court will not undertake to decide a question that is not related to an actual controversy. Appellate review is appropriate, however, when it appears that resolution of the question is in the public interest, as for guidance in future cases, and when the controversy is capable of repetition, yet evades review. Edward A. Sherman Publishing Co. v. Goldberg, R.I., 443 A.2d 1252, 1256 n. 6 (1982); Morris v. D'Amario, R.I., 416 A.2d 137, 139 (1980). We believe this is such a case.

We recognize at the outset that a court possesses the inherent power to control the conduct of its own proceedings, and there is little doubt that under certain circumstances a court may exclude the public and the press from its proceedings; however, such authority must be cautiously exercised. Miami Herald Publishing Co. v. Collazo, 329 So.2d 333, 336 (Fla.Dist.Ct.App.1976). We recognize also that various aspects of the constitutional guarantee of freedom of the press have received varying treatment in recent years by the Supreme Court of the United States. ¹ Compare Gannett Co. v. DePasquale, 443 U.S. 368, 391, 99 S.Ct. 2898, 2911, 61 L.Ed.2d 608, 628 (1979) (public has no constitutional right under Sixth and Fourteenth Amendments to attend criminal trials) with Press-Enterprise Co. v. Superior Court, 464 U.S. 501, ---, 104 S.Ct. 819, 825, 78 L.Ed.2d 629, 639 (1984) (closure of pretrial voir dire to protect privacy of potential jurors violated First Amendment freedom of the press); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248, 257 (1982) (right of access to criminal trials is not absolute; it must be shown that denial is necessitated by a compelling governmental interest); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973, 989-90 (1980) (first amendment vests the public with a right to attend criminal trials); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570, 579 (1978) (recognizing a general right to inspect and copy judicial records and documents); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 570, 96 S.Ct. 2791, 2808, 49 L.Ed.2d 683, 704 (1976) (subordination of Sixth Amendment right to a fair trial to First Amendment right to publish except in uniquely compelling circumstances).

Against this background and current trend toward the expansion of First Amendment rights, we turn to the merits of the case.

I PROTECTIVE ORDER

To understand the particular circumstances involved, one must first understand the purpose and use of protective orders, which understanding requires, retrospectively, a review of the underlying rationale of discovery in general. Rule 16 is the primary mechanism "to ensure that both parties receive the fullest possible presentation of the facts prior to trial. * * * The primary purpose of discovery is to eliminate surprise at trial." State v. Concannon, R.I., 457 A.2d 1350, 1353 (1983). "The trial of a criminal case is not to be considered a poker game in which each player holds his cards close to his vest. It is, as are all trials, a search for the truth." State v. Diaz, R.I., 456 A.2d 256, 258 (1983). Rule 16 has been characterized as "the most liberal and complete reciprocal mechanisms for discovery to be found * * *." State v. Darcy, R.I., 442 A.2d 900, 903 (1982); see State v. Coelho, R.I., 454 A.2d 241, 244 (1982). The present Rule 16 eliminates the requirement of a motion by a party seeking discovery. Instead, discovery is initiated by written request between the parties. Under the 1974 amendment there is no requirement that the fruits of discovery be filed in court. See Reporter's Notes to amendment to Rule 16. The reality of the situation, then, is that most discovery takes place without court intervention. All of this is consistent with the underlying policy of discovery and the expectation of the parties and the courts that discovery requires the fullest and most complete disclosure of information in order to assist in preparation for trial.

Even if the discovery materials are filed, the public's right of access is not absolute since under Rule 16(f) a court may, on the motion of any party, enter a protective order denying, restricting, or deferring discovery upon motion and sufficient showing that witnesses for either side will be subjected to intimidation, harm, or bribery. See Reporter's Notes to amendment to Rule 16. We believe it is implicit from the absence of any requirement that discovery be filed with the court that pretrial discovery often involves hearsay and other materials that are never admissible at trial. It happens fairly often that a trial is not held after pretrial discovery. Consequently, a protective order may be necessary to protect a number of interests by precluding disclosure of otherwise confidential information that may have untoward consequences wholly unnecessary to final preparation of the case for trial.

When a party moves for a protective order, the court may, in the presence of counsel for both parties, conduct an in camera inspection of the documents and materials to assist it in determining whether fair-trial considerations militate against disclosure. If after that review the court determines that a reasonable probability of prejudice exists, the documents at issue and the record developed in camera may be sealed and made a part of the file in the case. Thereafter, at an appropriate hearing any party claiming a right of access has the burden of demonstrating that its need for information outweighs any potential impairment of defendant's right to a fair trial. The task of the court then becomes one of both balancing the public interest in protecting the flow of...