stating that "[g]enerally, to have standing to raise an issue, a party must allege that the challenged action caused it injury in fact and that the interest asserted is within the scope of interests protected by the statute"
How later courts described this case
- stating that "[g]enerally, to have standing to raise an issue, a party must allege that the challenged action caused it injury in fact and that the interest asserted is within the scope of interests protected by the statute"
- “In the absence of any properly introduced evidence, ‘ “there is no reason for a trial court to * * * [conclude] that there will be prejudicial publicity * * * and to presume that such publicity will create a * * * threat to the administration of justice * * *’””
- “While an accused may waive his right to a public trial, he cannot force a private trial.”
Written by the judges who cited it.
The opinion
Corrigan, J.,
dissenting.
I.
We are importuned by the Dayton Newspapers, Inc., in this original action in this court to adhibit the extraordinary writ of prohibition against the order of a judge of a Common Pleas Court to conduct certain pretrial proceedings in a criminal case in private. The order necessarily excludes the press. They protest that such an order violates the constitutional guarantee of freedom of the press.
The questions presented haA7e provoked a pyrotechnics of extended rhetoric in connection Avith the decision of the court that tends to point up the importance of the case. Accordingly, I am constrained to succinctly state my reasons for dissenting from the majority.
The paramount concern of the judge in the trial court is the constitutional right of Herman Lee Moore, American citizen, to receive a speedy and public trial before an impartial jury in Montgomery County on the indictment charging him with kidnapping, extortion and aggravated murder.
It Avas this concern that motivated the judge to enter a protective order that hearings on defendant’s pretrial motions to suppress be held in camera. The judge said: “The court finds that the intense publicity referred to at the beginning of this opinion has created a clear and present danger of a serious and imminent threat to the ad *478 ministration, of justice and that in order to prevent the-possibility of further prejudicial pretrial publicity, which, might affect the right of the defendant to a fair and impartial trial, the motion of defendant [to hold all pretrial hearings in his case in camera] must be and hereby is. SUSTAINED.”
Based upon what was presented to him in the hearing on said motion, the trial judge exercised his best judgment to protect the constitutional right of defendant to an impartial jury in his trial on the indictment. His right to a. fair trial before an impartial jury is not superseded by the constitutional right of the relator herein, Dayton Newspapers, Inc., to the First Amendment freedom of the press-in pretrial proceedings. The United States Constitution does not declare the right of freedom of the press to be-superior to defendant’s Sixth Amendment right to a speedy and public trial before an impartial jury of the district, wherein the crime has been committed. Nor does that Constitution state that any declared right has a preferred position. To so hold that freedom of the press is a preferred right would be to relegate Moore’s right to a fair trial before an impartial jury to a deferred position as a second-class right. Such a view would be constitutionally untenable. Moore’s right truly belongs in the catalog of indispensable freedoms.
It may be said that publicity ordinarily serves to assure a fair trial, but in this instance the trial judge, in his effort to guarantee this right to defendant, seeks to insulate prospective jurors from reading about evidence, presented on pretrial motions to suppress, which may be inadmissible at the trial but which may arouse intense feelings in the community about the crimes charged against defendant. If, before a trial, the right to publish inadmissible evidence is inseparable from our freedoms, then the trend of trials to turn on evidence and influence beyond the control of the judge may be expected to continue. We certainly do not need another Sam Sheppard’ type perversion of justice.
In sensational cases like this the fact emerges that the *479 court faces grave problems in making good the constitutional assurance of fair trial before an impartial jury except with the cooperation of the’ agencies that make and convey public opinion. If these agencies do not respect the judicial process sufficiently to forego scooping it, pressuring 4, or circumventing it, then a fair trial before an impartial jury for an individual charged with a crime may in actually descend to a second-class constitutional right.
But, the Dayton Newspapers, Inc., a corporation for profit, says in effect that we and we alone should make the decisions as to what and when to publish; that this is our Eirst Amendment right as to freedom of the press.
II.
The Constitution of Ohio provides in Section 11 of Article I:
“* * '* and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *”
It speaks, too, about an impartial jury in Section 10, Article I, in part:
“* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel * * * to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in 'his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * ”
In connection with the latter, this court stated many years ago in Cooper v. State (1865), 16 Ohio St. 328 , 331, that “ [t]he right of the accused to an impartial jury cannot be abridged.”
A few years later it was held in Frazier v. State (1873), 23 Ohio St. 551 , 552, that:
“The constitution guaranties [sic] to the accused a ‘trial by an impartial jury.’ This right cannot be impaired. But what will constitute the abridgment of the right is, of necessity, a judicial question.”
That question was developed a little more in Baxter v. State (1914), 91 Ohio St. 167 , 169:
“While the question of a change of venue in a criminal *480 case is within the. sound discretion of the trial court, yet it is a substantial right of the defendant to be tried by a fair and impartial jury.”
I therefore dissent from the syllabus, opinion and judgment of the majority.