State v. Tallman

Decision Date11 September 1987
Docket NumberNos. 84-341,84-461,s. 84-341
CourtVermont Supreme Court
Parties, 15 Media L. Rep. 1344 STATE of Vermont v. Delbert Clyde TALLMAN (Herald Assoc., Valley Publishing Corp. & Gannett Satellite Info. Network, Intervenors-Appellants).

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 HILL, PECK, GIBSON and HAYES, 1 JJ.

HILL, Justice.

This case presents the Court with the vexatious and escalating problem of balancing a defendant's Sixth Amendment right to trial by an impartial jury against the public's claimed First Amendment right of access to pretrial criminal proceedings. We write at length because of the importance of this issue and because we believe that the trial court failed to balance properly these competing concerns.

The defendant in this case, Delbert Tallman, was arraigned on homicide charges in May of 1984. At the arraignment, the defendant asked that the affidavit of probable cause, which accompanied the charging information filed by the State, be sealed. He also requested that all trial participants and law enforcement officers be restricted from making any public comments about the case on any matters not already of public record. The court granted these requests in order to protect the defendant's right to a fair trial.

The appellants, Herald Association, Inc., Gannett Satellite Information Network, Inc., and Valley Publishing Corporation, filed motions for intervention and for relief from the two orders. The court permitted the appellants to intervene for the limited purpose of challenging the court's prior orders. A hearing was held at which no evidence was presented and only legal arguments were made by the parties. The court then denied the appellants' request for relief and reaffirmed its earlier orders.

A motion to suppress was later filed by the defendant. The defendant moved to close parts of the suppression hearing, as matters within the sealed affidavit were the subject of the motion to suppress. Appellants objected, and the court held a nonevidentiary hearing before ruling on defendant's motion for closure. It ultimately concluded that references made at the suppression hearing to potentially suppressible statements, if made public, would prejudice potential jurors and thereby infringe upon defendant's rights to a fair trial. Accordingly, the court ordered partial closure of the suppression hearing, excluding the public from the hearing at any point "where direct reference is to be made to any statement or statements of the defendant and any opinion based on that statement or statements." The appellants filed notices of appeal in this Court, challenging each of the district court's orders, and these appeals were later consolidated.

Before passing on the free press/fair trial question at issue here, two preliminary matters must be addressed. The first question relates to the intervenors' standing in this case, and the second is whether their claim is rendered moot by defendant Tallman's acquittal.

First, this Court has not held explicitly that a nonparty intervenor has standing to raise a collateral constitutional claim in a criminal proceeding. In Herald Association, Inc. v. Ellison, 138 Vt. 529, 531, 419 A.2d 323, 324-25 (1980), we stated that a petition for extraordinary relief was "a proper legal vehicle" for raising the collateral claim, thus implying that a nonparty does not have standing to directly raise such a claim in the underlying criminal proceeding. In In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981), however, this Court allowed a news media intervenor to raise directly its First Amendment claim in a juvenile proceeding without commenting on the need, or lack thereof, to petition for extraordinary relief in order to be afforded standing. Appellants rely on this Court's silence in In re J.S. for the proposition that a media intervenor has standing to raise a First Amendment claim in a criminal proceeding.

We hold that direct intervention in a trial court proceeding is an appropriate legal vehicle for ensuring that the news media's voice is heard in a timely manner. See Gannett Co. v. DePasquale, 443 U.S. 368, 397, 99 S.Ct. 2898, 2914, 61 L.Ed.2d 608 (1979) (Powell, J., concurring). Upon a criminal defendant's motion to seal affidavits of probable cause or to close a pretrial suppression hearing, a contemporaneous assertion by the press of the public's First Amendment right of access will assure that the public's interest is represented at the height of public concern, before "[l]ater events ... crowd news of yesterday's proceeding out of the public view." Id. at 442 n. 17, 99 S.Ct. at 2937 n. 17 (Blackmun, J., concurring in part and dissenting in part). It should be emphasized, however, that our acknowledgement of the media's right to intervene for the purpose of raising a collateral constitutional claim affords only a very limited standing. As this Court stated in Herald Association, 138 Vt. at 531, 419 A.2d at 325, "we do not countenance any implication that nonparties can without authority in law be allowed any legal status within a pending criminal prosecution."

It must also be noted that defendant Tallman's acquittal in the underlying criminal proceeding renders this appeal technically moot; normally, this fact would defeat our jurisdiction to review appellants' claims. An exception to the mootness doctrine is recognized, however, for cases that are " 'capable of repetition, yet evading review.' " In re S.H., 141 Vt. 278, 281, 448 A.2d 148, 149 (1982) (quoting Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973)); see also United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir.1982). The applicability of this exception is dependent on the satisfaction of a two-part test established by the United States Supreme Court in Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975): "(1) the challenged action [must be] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [must be] a reasonable expectation that the same complaining party [will] be subjected to the same action again."

Both parts of the Weinstein test are met here. First, an order closing a pretrial hearing "is by its nature short-lived." Nebraska Press Association v. Stuart, 427 U.S. 539, 547, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976). Consequently, there is little likelihood of appellate review of the challenged order before it expires. Second, it is reasonably to be expected that appellants will be subjected to similar closure orders in the future. See Gannett, 443 U.S. at 377-78, 99 S.Ct. at 2904. In fact, there are a number of cases pending in the trial courts that present similar, if not identical, fair trial/free press issues. Thus the exception to the mootness doctrine is applicable here, and we now turn to the merits of this case.


The United States Supreme Court recently passed on the constitutionality of a California statute governing public access to preliminary hearings. 2 In Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II ), the Court identified two complementary considerations that must be examined in cases involving a claimed First Amendment right of access to criminal proceedings: first, the Court considered whether the place and process had historically been open to the press and general public, id. at ----, 106 S.Ct. at 2740; second, the Court inquired whether public access played a "significant positive role in the functioning of the particular process in question." Id. Thus, "[i]f the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches." Id. at ----, 106 S.Ct. at 2741. The Court ultimately concluded that such a right applied to preliminary hearings as they are conducted in California. Id.


Although suppression hearings are distinguishable from the preliminary probable cause hearings conducted in California, a majority of courts addressing the issue have concluded that the public possesses a qualified right of access to such proceedings. See Associated Press v. Bell, 128 A.D.2d 59, 515 N.Y.S.2d 432 (1987); Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 556 (Minn.1983); Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 585-86, 281 S.E.2d 915, 922 (1981); see also Iowa Freedom of Information Council v. Wifvat, 328 N.W.2d 920, 924 (Iowa 1983) (recognizing state constitutional right of public access to pretrial proceedings). Suppression hearings, like many modern pretrial procedures, have no historical counterpart. In fact, "[w]hen the Sixth Amendment was written, and for more than a century after that, no one could have conceived that the exclusionary rule and pretrial motions to suppress evidence would be part of our criminal jurisprudence." Gannett, 443 U.S. at 395-96, 99 S.Ct. at 2913 (Burger, C.J., concurring). Since the adoption of the exclusionary rule, however, suppression hearings have become a fixture in our criminal jurisprudence. In fact, one court to have considered the issue specifically stated: "pretrial suppression hearings are as important to our criminal justice system as the trial itself, and to allow the public to view the trial without any knowledge of what has taken place previously would make the right of access ... a hollow one." Richmond Newspapers, 222 Va. at 588, 281 S.E.2d at 922; see also Wifvat, 328 N.W.2d at 923 ("pretrial suppression hearing is a critical and often decisive stage in the prosecution of a criminal case.").

We see little value in attempting to determine whether the public would have been afforded access to...

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