State v. Schaefer
| Decision Date | 06 September 1991 |
| Docket Number | Nos. 84-484,84-515,s. 84-484 |
| Citation | 157 Vt. 339,599 A.2d 337 |
| Parties | , 19 Media L. Rep. 1905 STATE of Vermont v. Gary Lee SCHAEFER, Herald Association, et al., Intervenors. |
| Court | Vermont Supreme Court |
See 112 S.Ct. 982. Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington, for intervenors-appellants.
Walter M. Morris, Jr., Defender Gen., and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellee.
Before ALLEN, C.J., and PECK, GIBSON, 1 DOOLEY and MORSE, JJ.
Intervenors-appellants appeal the district court's orders sealing the affidavits of probable cause, closing partially a hearing on a motion to suppress and further prohibiting all law enforcement officers and all attorneys associated with defendant's case from making any public statements about this criminal case. Intervenors are the publishers of daily newspapers in Vermont. They argue that the orders violate the First Amendment rights of the public to obtain information about the operation of the courts. We agree and reverse.
Defendant Gary Schaefer was arraigned on the charge of second-degree murder on May 10, 1984. He pled not guilty, and upon the request of his attorney, the court issued an order sealing the affidavit of probable cause to preserve defendant's state and federal constitutional rights. The court's order also prohibited all law enforcement officers and all attorneys associated with the case from making any statements "either at public meetings or proceedings intended for public reporting or dissemination" concerning the merits of the case, the evidence in the case, or any other matters that were not of record in the court.
On May 22, 1984, appellants filed a "Motion to Intervene" and a "Motion for Relief from Order," seeking access to the affidavit of probable cause. The trial court denied the motions without prejudice because appellants lacked any legal status within the pending criminal prosecution and because the motion to intervene was not supported by a memorandum of law as required by V.R.Cr.P. 47(a). Appellants then filed a motion for reconsideration, and an evidentiary hearing was held on this motion. The witnesses consisted of editors of appellant newspapers. Also admitted were newspaper stories about another murder prosecution against defendant for which he was convicted in December of 1983. The court refused to admit surveys taken by reporters for appellants based on random interviews of newspaper readers. In the interview, the reporter asked each person to answer the question: "Who is Gary Schaefer?"
Based on the evidence, the court made findings and denied the motion to reconsider. The court found that reporters for appellants had no familiarity with the standards established by the American Bar Association which prohibit the dissemination of pretrial criminal information if such release would pose a clear and present danger to the fairness of the trial. The newspapers themselves have no standards or policy concerning what to print from pretrial proceedings except that they will not print libelous news. Essentially, the court found, the newspapers' "guidelines are to go out and cover the story and whatever information is found becomes fair to report," including the prior criminal record of the accused, the content of a defendant's confession or admissions and the content of a defendant's testimony during a suppression hearing. Furthermore, appellants have published such information in the past and would not withhold such information from publication if requested to do so. The court specifically noted that one of the newspapers had published defendant's confession in the prior murder case "before trial of the case and even before the defendant was charged" and all of the newspapers, and the local television station, reported on the confession despite the pendency of a motion to suppress it. The court further found that these newspapers have widespread circulation and readership throughout Vermont, and, as a result, "[i]t is fair to say such a case as this would be almost totally published throughout the entire State."
Based upon these findings, the trial court concluded that "Defendant has demonstrated by clear necessity the need for the affidavit to remain sealed and that no reasonable alternatives exist to protect his right to a fair trial and an untainted jury pool." 2 The court relied on its finding that appellants would print the content of the affidavits of probable cause regardless of the effect of that publicity on defendant's right to a fair trial and that there would be "wide spread, general publicity of the contents of the Affidavits" right up to the date of the trial. The court rejected the alternatives, concluding that a continuance was not possible, that change of venue would be of "little practical benefit" in the face of the statewide publicity and that no amount of voir dire would be effective where a juror knew of a suppressed statement by defendant.
As to the restrictive order, the court found that defendant had shown a "clear necessity" for such an order in light of the publicity. The court upheld the restrictive order, concluding it justified by the same facts that justified the sealing order.
Following the ruling on the motion for reconsideration, the trial court considered a motion to suppress statements made by defendant to the police. Defendant sought closure of the hearing on the motion, and appellants objected. Based on its findings in connection with the sealing order, the court ruled that closure was needed as to "questions and answers of an interrogatory interview with the Defendant." The court's ruling indicated that the content of that interview was set forth in the affidavit of probable cause so that partial closure necessarily followed from the sealing of the affidavit. The court added that a change of venue would require jury selection from persons that "don't know anything about current events" and that intensive voir dire would not work because potential jurors are not always "totally frank about what they know about a case" and because they may recall what they read only after the start of the trial.
Following the hearing, the court granted the motion to suppress. The prosecutor dismissed the case in April of 1985.
Appellants make four arguments on appeal: (1) the proper standard for any restriction on qualified First Amendment access rights is a demonstration of a substantial probability of irreparable damage to defendant's Sixth Amendment rights; (2) the court's closure and sealing orders do not meet this standard because they are based upon presumed damage and not actual damage of defendant's rights; (3) the court inadequately considered reasonable alternatives to closure and sealing; and (4) the restriction on extra-judicial statements (the "gag order") is unjustified by the record and is unconstitutionally overbroad.
Although no party has contested the issue, we first look briefly at our jurisdiction in this case. We have held that the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers. State v. Tallman, 148 Vt. 465, 468, 537 A.2d 422, 424 (1987). Once representatives of the media intervene, as they have here, they have standing to appeal to this Court from orders denying them access to papers or proceedings.
When the issues reach this Court, however, there is rarely a live controversy. This criminal case has been dismissed, and the reasons for sealing the papers or closing the proceedings have long passed. Nevertheless, we have held in a similar case that the circumstances fit an exception to the mootness doctrine for issues capable of repetition yet evading review. Id. at 469, 537 A.2d at 424-25. We agree that this case also fits the exception to the mootness doctrine although we caution that this is not a holding that all media access cases so fit. As discussed below, this appeal raises general questions about the proper standard to apply in balancing the right of access to criminal proceedings and documents against the Sixth Amendment right of a criminal defendant to a fair trial. As the general questions are answered, however, these cases will become more fact specific, and the exact questions are less likely to recur in the future. Further, the lengthy delay between the trial court ruling and the action in this Court means that the trial courts often do not have the benefit of the latest decisions in this Court although there is no reason to believe that they would fail to follow them. See Johnson Newspaper Corp. v. Morton, 862 F.2d 25, 30 (2d Cir.1988). These considerations may warrant a conclusion that particular press access cases are moot when presented to this Court.
An understanding of appellants' first argument requires a revisiting of our two decisions in the area of press access to judicial proceedings and records in criminal cases, State v. Tallman, supra, and Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156 (1988). A case similar to this one, Tallman involved access to an affidavit of probable cause and a pretrial suppression hearing. The significance of Tallman is very much in issue, however, because only a four-member Court rendered the decision and it split 2-to-2 on the major issues within it. The decision in State v. Tallman is really two opinions, agreeing on the result, but disagreeing on parts of the requisite analysis.
The opinions do agree on a general policy statement:
[W]e start with the presumption that pretrial proceedings and documents are open to the public, closure being the exception rather than the rule. This is because "[o]penness ... enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."
Tallman, 148 Vt. at 474, 537 A.2d at 427 (quoting Press-Enterprise Co. v....
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