Appellees Brief — Richmond Newspapers, Inc. v. Virginia

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nl FILLED

4 ati Gupreme Court, U. & iy

In The

3 JAN 9 1980

Supreme Court of the United fbtatin

October Term, 1979 | i NCHAEL _RODAK, JR., CLERK

No. 79-243

RICHMOND NEWSPAPERS, INC., TIMOTHY B.

WHEELER and KEVIN McCARTHY,

Vv. Appellants,

COMMONWEALTH OF VIRGINIA,

Appellee.

RICHMOND NEWSPAPERS, INC., TIMOTHY B.

WHEELER and KEVIN McCARTHY,

Vv. Appellants.

RICHARD H. C. TAYLOR,

Appellee.

RICHMOND NEWSPAPERS, INC., TIMOTHY B.

WHEELER and KEVIN McCARTHY,

V. Appellants.

RICHARD H. C. TAYLOR,

Appellee.

On Appeal from the Supreme Court of the

Commonwealth of Virginia

BRIEF ON BEHALF OF THE APPELLEES

MARSHALL COLEMAN

Attorney General of Virginia

JAMES E.. MOORE

LEONARD L. HOPKINS, JR.

MarTIN A. DONLAN, JR.

JERRY P. SLONAKER

Assistant Attorneys General

Supreme Court Building

1101 East Broad Street

Richmond, Virginia 23219

(804) 786-2071

SSS SSS SSS eee

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TABLE OF CONTENTS

Page

hy G6 s.r i

Pov oe) 0 as Ee ee eee ee 2

SUMMARY OF ARGUMENT ..............-2000 ee eee: 5

PE eh ots, i UAT ALS doe Re eae dW RR AA Owes 9

I. The Case Is Not Properly Before The Court On Appeal,

And The Court Should Not Grant Certiorari ............ 9

A. This Case Is Not Proper For Review On Appeal...... 9

E. Certiorari Should Not Be Granted In This Case...... 13

II. The First Amendment Does Not Afford The Public Or

Press A Right To Attend Criminal Trials .............. 20

A. The First Amendment Protects Dissemination Of Ideas

And Information Be re a. es eta i we a G8 20

B. The Appellants Do Not Assert Infringement Of Any

Established First Amendment Right. They Seek Estab-

lishment Of A New Right Of Access Which Has Never

Been Recognized By This Court .................. 21

1. The Public Has No Existing Right Of Access To

EE ns oo candk suka be Saw ee he Se 22

2. The Press Has No First Amendment Right Of Access

To Criminal Trials Which Is Greater Than That Of

EE ys a a hahahah acre sarees Selckis wit 23

C. The Fact That Criminal Trials Have Customarily Been

Open To The Public And Press Does Not Establish A

Constitutional Right Of Access ...............+5.. 25

D. The Function Of A Criminal Trial Does Not Imply A

Right Of Public Access ... 1.2.20... cece cece eeees 26

Page

III. The Sixth Amenément Embodies No Public Right of Ac-

Sh ae ee See Cee, OA aaa se ee ee eeu 28

A. The Sixth Amendment Guarantee Of The Right To A

Public Trial Is Personal To The Accused ............ 28

1. By Its Literal Terms The Sixth Amendment Secures

The Right To A Public Trial Only To The Accused 28

2. Existence Of A Common Law Rule Of Open Civil

And Criminal Proceedings Does Not Establish A

Sixth Amendment Right In The Public To Attend

eo | GR ee rt ee rere ee 29

B. The Right To A Fair Trial Must Not Be Deried...... 30

1. The Accused’s Right To A Fair Trial Is Paramount

To Any Societal Interest In A Public Trial........ 30

2. Recognition Of A Societal Interest In Public Trials

Creates No Constitutional Right On The Part Of

The Public And Society’s Interest Is Fully Protected

me Ser: Per er TT ree 33

3. Any General Public Interest In Limiting The Use

Of Trial Closures Can Be Protected By The Political

EEA E ey Cer rrr eee eee ere ee ae 36

IV. The First and Sixth Amendments, When Taken In Con-

junction, Do Not Support A Public Right Of Access To

ND ee a aah So aE OE Dae Ae A ea 38

V. The Court Below Gave All Appropriate Deference To Any

Constitutional Right Of Access In Its Decision To Close

eet 8 SAI a a ein dee oo Aah Se 39

CONCLUSION ............ Gey eee ee ps pane api 42

CERTIFICATE OF SERVICE ..........ccccccccpsccess 44

TABLE OF AUTHORITIES

Cases

Page

Administrator, Federal Aviation Administration v. Robertson,

ee Se: PE ‘0 6 hak CA ae ca eee be 8 8d 19

Apodaca v. Oregon, 406 U.S. 404 (1972) ................ 16

Archer Vv. Mayes, 213 Va. 633, 194 S.E.2d 707 (1973)........ 19

Baldwin v. New York, 399 U.S. 66 (1970) ..........-.00e- 15

Beck ¥. Wamngion, 369 US. 3541 CISGZ) ow. ccc ccecccces 11

Berger v. United States, 295 U.S. 78 (1935)............. 26, 35

Burch v. Louisiana, 441 U.S. 130 (1979) .............008. 17

Boyd v. United States, 116 U.S. 616 (1886) ............... 38

Braniff Airways, Inc. v. Nebraska State Board, 347 U.S. 590

Ce Cee e a ee Saha eka 6 vane he bebe meat 11

Branzburg v. Hayes, 408 U.S. 665 (1972)............20055 23

Bridges v. California, 314 U.S. 252 (1941)..............05. 21

Cardinale v. Louisiana, 394 U.S. 437 (1969) ............. 9,13

Charleston Federal Savings and Loan Ass’n V. Alderson, 324

eh ee Es Seen Caw ca tN SOS RD HEME Oe Ow ed see 9

Cissna ¥.. Tennesset, 246 U.S. 269 CIFIS) . cece ccccesss 11

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ....... 21

Cole F, Se, Pk Ws PE SEO Doi gce oc 0:0 cow ee ca uece 21

Crowell v. Randell, 10 Peters 368 (1836) ................. 9

District of Columbia v. Clawans, 300 U.S. 617 (1937)....... 15

Duncan v. Louisiana, 391 U.S. 145 (1967) ...........-e ee. 16

Ehrlichman vy. Sirica, 419 U.S. 1310 (1974) .............. 32

alae V. Fa, Fee Wee ee. CHMOD sxc parevvaveccss 21, 29, 32

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). 20

First National Bank of Richmond v. William R. Trigg, Co.,

ey ee ee Re ED oc ys pe nccweeevereenss 12

Flournoy v. Wiener, 321 U.S. 253 (1944) ........c eee. 14

Gannett Co., Inc. v. DePasquale, ... U.S. ...,99 S.Ct. 2898

CNGe © Lab bene s anak erence Reece 5, 6, 14, 22, 28, 36

Garrity v. New Jersey, 385 U.S. 493 (1967) ..........006- 9

Griswald v. Connecticut, 381 U.S. 479 (1965) ............. 39

Groppi Vv. Wisconsin, 400 U.S. 505 (1971) ........-.20 ee 37

Hanson V. Denckla, 357 U.S. 235 (19SB) ....ceccvccscceee 9

Houchins v. KQED, Inc., 438 U.S. 1 (1978) ........-5505- 22

Huffman v. Persue, Ltd., 420 U.S, 592 (1975).........0-45- 13

iti

Page

En ve Murchison, 309 US. 153 CISSS) oo ucccecenvavewnees 31

Den 00 GEV, Foo WB. Bat CIPUO) so vvctcacvcpuvnnes 29, 32, 33

Seat ¥. CE Be STEP COED oo v's vn ccetecuseusenees 37

Jenkins ¥. Garage, 438. U. 15S CISTS) .vnccccsnvesvevess 11

King v. Commonwealth, 219 Va. 171, 247 S.E.2d 368 (1978). 11

Kulko v. California Superior Court, 436 U.S. 84 (1978)...... 10

Landmark Communications, Inc. v. Virginia, 435 U.S. 829

5 yj RAEI ASD rere ie era Sram piee penne me (jae TN 21

Lathrop v. Donohue, 367 U.S. 820 (1961) .............4.. 13

mean ¥. Glia, 267 the GES CAPRI). «oe ce ccevicncsvnusses 15

Mayer v. City of Chicago, 404 U.S. 189 (1971)............ 13

Mid-State Equipment Co., Inc. v. Bell, 217 Va. 133, 225

Ee Bee HOOD <n kb cca ce oer nd obeaedeeé hes ¥¥ eke 11

Mills v. Alabaina, 384 U.S. 124 (1966) ............00008. 20

Monks v. New Jersey, 398 U.S. 71 (1970) ............006. 9

Murphy v. Holiday Inns, Inc., 216 Va. 490, 219 S.E.2d 874

CREE ok «ble cades dca base ees ase ees ee ee 12

NAACP vy. Alabama, 357 U.S. 449 (1958) ..........00000s 38

Near v. Minnesota, ex. rel Olson, 283 U.S. 697 (1931)....... 20

Nebraska Press Ass’n V. Stuart, 427 U.S. 539

Se fa wdinwas Ca4 > oe see es Bak een 21, 31, 32, 37

New State Ice Co. v. Liebman, 285 U.S. 262 (1931)......... 15

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)....... 20

New York Times Co. v. United States, 403 U.S. 713 (1971).. 20

Patton v. United States, 281 U.S. 276 (1930) .............. 29

Poll 'v. Poocomier, 417 US. Gi7 CASTE) onc ac wcvcuscresenes 22

Pennekemp V. Florida, 328 U.S. 331 (1946) .............4.. 21

Phillips v. United States, 312 U.S. 246 (1941) ............. 10

Rice v. Commonwealth, 212 Va. 778, 188 $.E.2d 196 (1972). 11

Rives v. Gone, 423 U.S. SGR CIGPOD ons nwa wcsevedcuscons 13

Saxbe v. Washington Post Co., 417 U.S. 843 (1974)......... 22

Sheppard v. Maxwell, 384 U.S. 333 (1966)..... 21, 26, 31, 32, 36

Singer v. United States, 380 U.S. 24 (1965) ..........4... 26, 36

Singleton v. Wuiff, 428 U.S. 106 (1976) .........00 ee eee 34

Trainor Vv. Hernandez, 431 U.S. 434 (1977) ........000 00 es 13

Ungar v. Sarafite, 376 U.S. 575 (1964) ...... 5c eee e eee 9

Page

United Press Ass’n V. Valenti, 308 N.Y. 71, 123 N.E.2d 777

OS 29, 33, 34, 36

United States v. Cianfrani, 573 F.2d 835 (3rd Cir. 1978)..... 29

United States v. Geise, 265 F.2d 659 (9th Cir. (1959)........ 29

United States v. Sorrentino, 175 F.2d 721 (3rd Cir. 1949).... 29

United States v. United States District Court, 407 U.S. 297,

EES SET SS 39

Williams v. Florida, 399 U.S. 78 (1970) .............000- 16

See I ee OP PO CTOOO) .£ ww. tcc ccc cece 13

er 15

Wood ¥. Georgia, 370 US. 375 (1962) .. 0... ccc ccc cease oh, ae

WTAR Radio-TV Corp. v. City Council, 216 Va. 892, 223

EE EI 19

Ge I UEDD ow cette ee crc cece 22

CONSTITUTIONAL AND STATUTORY AUTHORITIES

Code of Virginia (1950), as amended,

Eee 19

IG tes Wialre bik'e's's ba ws a 0 1, 4, 5, 10, 11, 12, 13, 14

Rules of the Supreme Court of The United States

IE eee ee 14

I eee . 14

a np ses cc rseconces 14

United States Code:

Eee 1, 10, 13, 14

Nee ek pecs ces ceccceess 2

EE 2,14

United States Constitution, Amendment VI ................. 29

MISCELLANEOUS AUTHORITIES

Douglas, The Public Trial and the Free Press, 33 Rocky Mt. L.

hades veasesccceccces 29

Madsen, S., The Right to Aiiend Criminal! Hearings, 78

oe 8 36, 37

Mr. Justice Stevens, Address at tiie University of Arizona

College of Law Dedication Ceremony, September 8, 1979.... 35

Radin, The Right to a Public Trial, 6 Temp. L.Q. 381 (1932).. 36

In The

Supreme Court of the United States

October Term, 1979

No. 79-243

RICHMOND NEWSPAPERS, INC., TIMOTHY B.

WHEELER and KEVIN McCARTHY,

Vv. Appellants,

COMMONWEALTH OF VIRGINIA,

Appellee.

RICHMOND NEWSPAPERS, INC., TIMOTHY B.

WHEELER and KEVIN McCARTHY,

Vv. Appellants.

RICHARD H. C. TAYLOR,

Appellee.

RICHMOND NEWSPAPERS, INC., TIMOTHY B.

WHEELER and KEVIN McCARTHY,

Vv Appellants.

RICHARD H. C. TAYLOR,

Appellee.

On Appeal from the Supreme Court of the

Commonwealth of Virginia

BRIEF ON BEHALF OF THE APPELLEES

QUESTIONS PRESENTED

Whether the constitutional validity of Va. Code

§ 19.2-266 was sufficiently drawn in question to sup-

port this Court’s exercise of appellate jurisdiction under

28 U.S.C. § 1257(2).

2 4

2. Whether the circumstances of this case provide an

adequate basis upon which this Court should grant a

writ of certiorari under 28 U.S.C. § 1257(3) and 28

U.S.C. § 2103.

3. Whether the First Amendment affords the public or

press a right to attend criminal trials.

4. Whether the Sixth Amendment embodies a public right

of access to criminal trials.

5. Whether the First and Sixth Amendment taker-together

afford a public right of access to criminal trials.

6. Whether the trial court gave appropriate deference to

any constitutional right of access to criminal trials in its

decision to close the trial.

STATEMENT OF THE CASE

John Paul Stevenson (hereinafter, “Stevenson”) was

indicted for murder in March of 1976 and was convicted

in the Circuit Court of Hanover County (hereinafter, “trial

court”) on July 16, 1976 of second degree murder.’ On

October 7, 1977 the Supreme Court of Virginia reversed this

conviction and remanded the case for a new trial. Stevenson

v. Commonwealth, 218 Va. 462, 237 S.E.2d 779 (1977).

The conviction was reversed because a blood stained shirt

purportedly belonging to Stevenson was improperly ad-

mitted into evidence. Laboratory tests had revealed that

the stains on the shirt matched the blood of the victim. The

Supreme Court of Virginia found that this shirt was im-

*As noted i isdicti

pege 7, tho stnveuet fonts cantaisel apes oan aiiieeioten

= Support of Petitions for Writs of Mandamus and Prohibition be-

ore the Virginia Supreme Court was accepted by counsel for ap-

pellee. Such agreement on the facts is not possible before this Court

pain to the argumentative nature of the Appellants’ statement of the

eee

properly received in evidence at the original trial because it

was “connected” to the accused solely by hearsay evidence.

Id.’

Stevenson’s second trial ended in a mistrial on May 30,

1978 (Va. App. 3),° because a juror asked to be excused

due to a nervous condition. (App. 34a). A newspaper

article published by the Richmond Newsleader the day

following the declaration of the mistrial explained that

Stevenson had been previously convicted, that a new trial

had been ordered by the Virginia Supreme Court because of

improper admission of a “key piece of evidence” at the

original trial—‘“a blood stained shirt obtained from Steven-

son’s wife soon after the killing.” (App. 34a).

A third trial began on June 6, 1978, but that proceeding

also ended in a mistrial. (Va. App. 4). Avmistrial was de-

clared in this instance because a prospective juror had read

about Stevenson’s previous trials and had related his knowl-

edge about the case to the other prospective jurors. (App.

35a-36a). A Richmond Newsleader article published the

day following the second mistrial stated that Stevenson had

been convicted previously and that the conviction was over-

turned because of evidence improperly introduced during

the original trial. (App. 35a-36a).

Stevenson’s fourth trial began on September 11, 1978.

At the outset, Stevenson’s defense counsel moved to exclude

the public and press from the courtroom during the trial

“because I don’t want any information being shuffled back

2 The prosecution did not attempt to introduce the blood stained

shirt at the subsequent re-trials but the existence of this inadmissible

and highly prejudicial evidence was publicized in the newspapers at

the time of the second trial. (App. 34a).

’ Page number references to the Appendix filed by the Appellants

in the Virginia Supreme Court in these consolidated cases will be

designated (Va. App. ...) to distinguish such references from the

Appendix filed with this Court.

and forth when we have a recess as to what—who testified

to what.” (App. 5a). The Commonwealth’s Attorney did

not object to the proposed closure. (App. 6a). The trial

court granted the motion stating that “the statute gives me

that power specifically and the defendant has made the

motion and I'll rule that the courtroom be kept clear of all

parties except witnesses when they testify.” (App. 6a).

Appellants Wheeler and McCarthy, who were present in

the courtroom, were required to leave, but the record re-

flects no objection on their part at that time. (App. Sa-6a).

Later that same day, counsel for Appellants was granted

an opportunity to oppose the motion and order closing the

trial to the public and press. Written and oral arguments

were presented by counsel urging the court to open the trial

to the press and public. (App. 8a-15a). Appellants counsel

argued that the exclusion order was a form of prior restraint

on freedom of the press in violation of the First Amend-

ment. (App. 8a-12a). Appellants also suggested that other

measures were available to ensure a fair trial. (App. 12a).

Appellant’s counsel made no challenge to the constitutional-

ity of Va. Code § 19.2-266.

Stevenson’s defense counsel argued that “this is the

fourth time that we’ve . . . attempted to have a trial’, that

“we've had difficulty . . . with information . . . between

jurors,” and that “on two previous occasions your honor

declared a mistrial and that was the reason why I wanted to

avoid [continually] coming back up to this Court and...

having to try this case.” (App. 14a-15a). Stevenson’s coun-

sel further contended that a courtroom open to the press

and the public would jeopardize his client’s right to a fair

trial in that publicity was a particularly acute problem in

such a small community. (App. 15a).

The trial court stated that it had “to weigh, . . . in its own

ae -

mind, .. . the rights of the defendant as against the rights of

the public or the rights of the defendant as against the rights

of the press.” (App. 12a-13a). Judge Taylor also noted that

the courtroom layout was such that spectators tended to be

distracting to the jury. (App. 16a). Considering the cir-

cumstances presented and the factors raised by counsel at

this mid-trial hearing,‘ Judge Taylor declined to vacate his

closure order. (App. 17a). rs

The Appellants petitioned the Supreme Court-of Virginia

Sor Writs of Mandamus and Prohibition and filed an appeal

from the closure order. The Court denied relief in all three

cases, citing without comment Gannett Co., Inc. v. DePas-

quale, 99 S.Ct. 2898 (1979). (App. 24a-28a).

The instant appeal is from those judgments of the Su-

preme Court of Virginia. Appellants attack the constitu-

tionality of Va. Code § 19.2-266 for the first time in this

Court.

SUMMARY OF ARGUMENT

To establish appellate jurisdiction in this Court, it has

long been required that there be an explicit and timely in-

sistence in state courts that a state statute is repugnant to the

federal Constitution, treaties or laws, of the United States.

A general attack on the constitutionality of actions under a

statute does not meet this jurisdictional requirement. Not

once in Virginia courts did the Appellants even mention

Va. Code § 19.2-266, let alone challenge its constitution-

ality. Such failure, of itself, prevented not only constitu-

tional review of the statute in the Supreme Court of Vir-

ginia, but, also makes such review improper in this Court.

‘Though not perfectly clear from the record, this hearing on

closure took place after the completion of the first day of trial and

after the jurors had been released for that day.

Certiorari is not an appropriate alternative in this case.

Its grant would virtually nullify the appellate jurisdiction

requirement that only the federal questions raised and de-

cided below may be considered by this Court. Moreover,

such a grant of certiorari would be in complete derogation

of the principles of comity. The invitation to establish a

right of access to criminal proceedings in light of this Court’s

recent decision in Gannett Co., Inc. v. DePasquale, 99

S.Ct. 2898 (1979), should be declined in order that state

courts and legislatures may react to the effects of Gannett

perceived by appellants. To establish a new constitutional

right of public access after only six months experience

under Gannett, without any credible data on its effects, is

not warranted. If such a constitutional requirement is truly

necessary, that will become apparent once the States have

had an adequate time to consider this issue and to render

their judgment upon it. This Court should not establish new

constitutional rights where the need is not proven and the

consequences are unknown.

Il.

The traditionally recognized First Amendment rights are

not in issue in this case. The Appellants assert a First

Amendment right of access—the right to attend criminal

trials. The decisions of this Court have uniformly rejected

claims that the First Amendment guarantees either the pub-

lic or press a right of access to governmental places and in-

formation. Recognition of such rights of access would pre-

sent significant practical problems which do not lend them-

selves to resolution by means of any reasonable constitu-

tional principle.

Our tradition of public criminal trials, though well estab-

lished, does not thereby create a constitutional right in

the public or press to demand public trials. Indeed, the

custom of publicity suggests there is no pressing need to

recognize the novel rights of public access asserted by the

Appellants in this case.

The central purpose of criminal trials is fair adjudication

of the accused. Trial closures, where deemed necessary by

the accused, prosecutor and judge to ensure a fair trial

would not disserve the central societal purposes of criminal

trials. Accordingly, there is no discernible basis upon which

to establish a public right of access to criminal trials.

Ill.

Similarly, the Sixth Amendment embodies no public right

of access to criminal proceedings. While there exists a com-

mon law tradition of open civil and criminal proceedings,

this Court in Gannett refused to ascribe constitutional di-

mension to this tradition, finding no evidence that the

framers of the Sixth Amendment intended to create any

Constitutional right of access in the public.

In any criminal proceeding, the ultimate concern is for

the accused’s right to a fair trial, the most fundamental of

all freedoms. Thus, this right of the accused is paramount

to any societal interest in a public trial. While the press

should normally have the opportunity to observe judicial

proceedings, that opportunity must yield whenever neces-

sary to maintain absolute fairness in the judicial process. To

ensure such fairness, trial judges have an affirmative duty to

protect the rights of the accused and rightfully possess broad

discretion in fulfilling this obligation.

The public also may have important interests in criminal

trials but recognition of such interests is a far cry from the

creation of a constitutional right on the part of the public

to attend criminal proceedings. Moreover, in an adversary

system of criminal justice the public interest is protected by

the trial participants. The workability of our system is

based upon the assumption that these participants will com-

petently and honestly meet their responsibilities. The re-

sponsibility of the prosecutor fully encompasses a duty to

protect the societal interest in a public trial.

At times trial closure will be necessary to protect the ac-

cused’s right to a fair trial. Any public concern in limiting

the use of such closures can be adequately protected by the

political process and does not justify creation of new consti-

tutional rights.

IV.

Neither the First nor the Sixth Amendment alone pro-

vides a basis for a public right of access to criminal trials.

Nor do these Amendments taken together support such a

right. Since First and Sixth Amendment rights are not in-

terdependeni and are often in conflict in criminal trials, the

cases rciied upon by Appellant are inapposite.

Even if a Constitutional right of access exists, the trial

court gave this right all appropriate deference in balancing

it against the accused’s right to a fair trial. Though no ob-

jection by the Appellants was made to the closure order,

the trial court nevertheless afforded them a mid-trial hear-

ing. The court assumed the public had a constitutionally

protected right to attend, but found that the right of the

accused to a fair trial outweighed Appeliants’ interests.

Though alternatives to closure were suggested by Appel-

lants, they obviously were no longer viable under the cir-

cumstances. Substantial reasons were advanced in support

- opens REESE ENSTERGIEET Te SEEES TSE nr

of closure, yet Appellants offered no countervailing evidence

to overcome these bases for closure.

The “all-but-conclusive” presumption against closure

urged by the Appellants is unworkable and would, in effect,

prohibit all closures. The trial courts balancing of the com-

peting interests herein was constitutionally adequate.

ARGUMENT

IL.

THE CASE IS NOT PROPERLY BEFORE THE COURT

ON APPEAL, AND THE COURT SHOULD

NOT GRANT CERTIORARI

This Case Is Not Proper For Review On Appeal

It has long been established that this Court is only vested

with appellate jurisdiction over those federal questions

raised and decided in the state court below. Cardinale v.

Louisiana, 394 U.S. 437 (1969); Crowell v. Randell, 10

Peters 368, 392 (1836). It is, therefore, essential to the

jurisdiction of this Court under 28 U.S.C. § 1257(2)

“that there be an explicit and timely insistence in state

courts that a state statute, as applied, is repugnant to the

federal constitution, treaties or laws.” Charleston Federal

Savings and Loan Ass’n v. Alderson, 324 U.S. 182, 185

(1944). Thus, in order to draw a state statute into question,

it is insufficient to challenge action under a statute as being

unconstitutional generally; the statute itself must be specifi-

cally challenged as being unconstitutional. Hanson v.

Denckla, 357 U.S. 235, 244 (1958); Garrity v. New

Jersey, 385 U.S. 493, 495-96 (1967); Ungar v. Sarafite,

376 U.S. 575, 582-83 (1964); Monks v. New Jersey, 398

U.S. 71 (1970). “[A]n attack on lawless exercise of au-

thority in a particular case is not an attack upon the. con-

stitutionality of a statute conferring the authority. . . .”

Phillips v. United States, 312 U.S. 246, 252 (1941). Ap-

pellants sole argument below was that the actions of the

trial court in closing the trial were precluded by the United

States Constitution. The Appellants have not, therefore,

drawn Va. Code § 19.2-266 into question under 28 U.S.C.

§ 1257(2). Kulko v. California Superior Court, 436 U.S.

84, 90 n. 4 (1978).

On appeal to the Supreme Court of Virginia Appellants

did not mention Va. Code § 19.2-266, much less challenge

it as being unconstitutional under the First, Sixth and Four-

teenth Amendments.’ Appellants rest their contention that

there is appellate jurisdiction not upon any specific chal-

lenge they made to Va. Code § 19.2-266, but solely upon

the trial court’s reference to its statutory authority to close

the trial and upon citations ty Va. Code § 19.2-266 in the

Memorandum of Respondent (Appellees herein) in Op-

position to Petitions for Writs of Mandamus and Prohibition

and the Brief in Opposition to Petition for Appeal filed in

the Supreme Court of Virginia.* The controlling issue in de-

ciding this Court’s appellate jurisdiction, however, . is

whether the Appellants challenged the constitutionality of

the Virginia statute in the courts below. See Kulko v. Cali-

fornia Superior Court, supra.

Contrary to the assertion of the Appellants, the Supreme

Court of Virginia did not “obviously and necessarily decide

the constitutionality of Va. Code § 19.2-266,, both on its

face and as applied.” (Brief of Appellants at 16). The

Court may well have based its decisions upon the plenary

authority of courts to protect an accused’s right to a fair

* See Petition for Appeal and Memorandum in Support of Petitions

for Writs of Mandamus and Prohibition filed by Appellants in the

Supreme Court of Virginia. Also see A.4a-20a.

* See Brief of Appellants at 16.

trial without regard to Va. Code § 19.2-266. The Virginia

statute clearly was not the focus of the appeal. There was

no challenge in the Virginia courts to the validity of the

statute sufficient to invoke this Court’s appellate jurisdic-

tion.*

Virginia law requires that constitutional challenges to

state statutes be made in trial courts. King v. Common-

wealth, 219 Va. 171, 174, 247 S.E.2d 368, 370 (1978).

Rice v. Commonwealth, 212 Va. 778, 779, 188 S.E.2d 196

(1972). Since no such challenge was made in the trial

court, the constitutionality of Va. Code § 19.2-266 was not

and could not be considered by the Virginia Supreme Court.

King v. Commonwealth, supra; Mid-State Equipment Co.

Inc. v. Bell, 217 Va. 133, 225 S.E.2d 877 (1976); Rice v.

Commonwealth, supra. The decisions of this Court require

that appellate review he denied under such circumstances.

Beck v. Washington, 369 U.S. 541 (1962). In Beck, the

Court stated: :

“although both opinions of the [State] Supreme Court

discuss the interpretation of [the State statute] neither

considered that question in light of the equal protection

argument for that argument was never properly pre-

sented to the court in relation to this statute. The

3 Plaintiff’s reliance on Jenkins v. Georgia, 418 U.S. 153 (1974)

is misplaced. In Jenkins the Georgia Supreme Court directly and un-

equivocally upheld as constitutional the statute sought to be drawn

into question on appeal. Similarly in Cissna v. Tennessee, 246 US.

289 (1918) the Tennessee Supreme Court dealt directly with the

constitutional issue subsequently raised in this Court. In Braniff

Airways, Inc., Vv. Nebraska State Board, 347 U.S. 590 (1954) the

statute involved was also explicitly challenged as unconstitutional

below. Though this Court allowed a due process challenge on appeal

while the constitutional challenge below was under the Commerce

Clause, the Court specifically found that the factual basis for the due

process challenge was identical to the Commerce Clause challenge

below and was within the clear intendment of the Commerce Clause

attack on the statute.

[State] Supreme Court has unfailingly refused to con-

sider constitutional attacks upon statutes not made in

the trial court, even where the constitutional claims

arise from the trial court’s interpretation of the chal-

lenged statute. [Citation ommitted.] Petitioner’s formal

attack at the trial court level did not even mention

[the State statute involved], much less argue that a

restrictive interpretation would be unconstitutional

under the Equal Protection Clause.” Id. at 549-50.

(Emphasis in original.)

As in Beck appellants herein did not challenge the con-

stitutionality of Va. Code § 19.2-266 in the State trial court

or the Virginia Supreme Court.*

Accordingly, the constitutional attack on Va. Code

§ 19.2-266 is not properly before this Court, and this

appeal should be dismissed for want of jurisdiction.’

* Appellants argue that it is not the rule in Virginia to require

constitutional challenges to state statutes to be first brought before

the trial courts. For this proposition Appellants rely on Virginia

Supreme Court Rule 5:21 which provides that an objection not

timely asserted below may, nevertheless, be considered “for good

cause shown or to enable this court to attain the ends of justice.”

This exception has never been used and there is no indication that

it was ever intended to allow a constitutional challenge to a state

statute which was not raised at the trial level. None of the cases

relied upon by appellants involved constitutional challenges to state

statutes. See Brief of Appellants, p. 16, n. 10. Furthermore, though

the specificity requirement for objections below may be waived,

specificity remains essential to assignments of error on appeal. Rule

5:21. Appellant’s failed to assign as error the trial court’s arguable

reliance on Va. Code § 19.2-266. This failure to “lay their finger

on the error” is fatal to this appeal. First National Bank of Richmond

Vv. William R. Trigg, Co., 106 Va. 327, 342, 56 S.E. 158, 163

(1907); Murphy v. Holiday Inns, Inc., 216 Va. 490, 219 S.E.2d

874 (1975).

°The Appellants alternatively argue that an appeal is proper even

without a specific challenge to the statute contending that the de-

cisions below create a statewide rule of court having the force of

law in Virginia. This argument is completely devoid of merit. A rule

of the Supreme Court of Virginia having general application may

constitute a statute within the meaning of 28 U.S.C. § 1257(2). But

Certiorari Should Not Be Granted In This Case

Appellants alternatively seek a writ of certiorari should

the Court determine that there is an absence of appellate

jurisdiction. Significantly, the Appellants relied in their

Jurisdictional Statement exclusively upon this Court’s ap-

pellate jurisdiction under 28 U.S.C. § 1257(2). Only now,

after realizing their failure to properly establish appellate

jurisdiction below, do they contend that there is an alterna-

tive basis for granting certiorari.

Though 28 U.S.C. § 2103 authorizes treatment of a

jurisdictional statement as a petition for writ of certiorari,

the requirement that this Court consider only federal ques-

tions passed upon by the state’s highest court applies equally

to petitions for certiorari. Wilson v. Cook, 327 U.S. 474

(1946). Underlying this requirement is the important prin-

ciple of comity—the notion that “in the federal system it

is important that state courts be given the first opportunity

to consider the applicability of state statutes in light of con-

stitutional challenges.” Cardinale v. Louisiana, supra, at

439. The continuing importance of comity considerations

cannot be denied. Huffman vy. Persue, Ltd., 420 U.S. 592

(1975); Rizzo v. Goode, 423 U.S. 362 (1976); Trainor v.

Hernandez, 431 U.S. 434 (1977). Circumvention of this

important principle in the instant case should not be

unreported decisions of the Supreme Court denying petitions for

appeal, mandamus, and prohibition in a single case are not legisla-

tive in character by any stretch of the imagination. There is no basis

upon which to compare the actions of the Supreme Court of Virginia

in adversary litigation to the legislative actions of State supreme

courts in establishing rules tor the integration of a state bar, amend-

ing statutory provisions governing criminal appeals, or promulgating

rules for the administration of a state bar as Appellants would lead

this court to believe. See Lathrop v. Donohue. 367 U.S. 820 (1961);

Mayer Vv. City of Chicago, 404 U.S. 189 (1971); In re Griffiths, 413

U.S. 717 (1973).

allowed. For these reasons, no writ of certiorari should be

granted in this case to consider the constitutionality of Va.

Code § 19.2-266.°

Other scund reasons exist supporting denial of certiorari

in this case. The Appellants urge the Court to adopt ad-

mittedly new applications of the First and Sixth Amend-

ments. They seek to establish a right to attend and observe

criminal trials recognizing that no single provision of the

Constitution expressly and unambiguously confers that

right. (Brief of Appellants at 9). The Court is urged to

establish this right because “our very survival as an open

society requires no less.” (Brief of Appellants at 13). In

support of this broad claim Appellants refer to some eight

instances in which courts have been asked to enter gag

orders or closure orders since this Court’s decision in Gan-

nett Co. Inc. vV. DePasquale, supra. (Brief of Appellants

at 24, n. 21). Amici Curiae, The Reporters Committee for

Freedom of the Press, et al., (“Reporters” herein) in their

appendix refer the Court to some limited data relating to

closure orders entered since the announcement of this

Court’s opinion in Gannett. Such data, however, is of little

value in assessing the effect of Gannett, if any, since similar

data for comparable periods prior to the Gannett decision

is not provided for comparison.’

* Appellees contend that denial of certiorari is proper not only as

to Appellants’ challenges to Va. Code § 19.2-266 but also as to

their constitutional challenges to the plenary authority of trial courts

to close a trial to ensure the accused’s right to a fair trial. The latter

challenges were made below, but they were not saved in the questions

presented in Appellant’s Jurisdictional Statement. This failure pre-

vents review of such constitutional questions. See Rules 15(c),

23(c) and 40(d)(2) of the Supreme Court of the United States,

Flournoy Vv. Wiener, 321 U.S. 253, 263 (1944).

* Both Appellants and Amici Curiae argue that the data they have

provided establishes the effects of this Court’s decision in Gannett.

Such trend analysis is obviously faulty because it is based upon a total

In the short time since Gannett was decided the vast

majority of state legislatures have not been in session. More-

over, no other closure order by a trial court since Gannett

has yet reached the appellate courts. See Appendix, Brief

of Amici Curiae, Reporters. Thus, no accurate assessment

of the effects of the decision in Gannett on trial closures

is presented at this time.

Even if one assumes an increase in unwarranted closure

orders in the wake of Gannett, the states may serve as ef-

fective laboratories in formulating a remedy which will

protect the public’s interest in open trials while not infring-

ing on the accused’s right to a fair trial. Cf. New State Ice

Co. v. Liebman, 285 U.S. 262,311 (1931) (Brandeis, J.,

dissenting). This Court has often recognized the value of

looking to the states for guidance when assessing the meas-

ure of constitutional restructuring necessary for effective

administration of criminal justice.” Most dramatically this

has been the approach of the Court in shaping the constitu-

lack of comparison data. Amici Curiae, Reporters, go so far as to

say that “these initial closures are merely the hesitant beginning of

an ever-increasing trend.” (Brief of Amici Curiae, Reporters, at 12).

Appellants characterize the data as showing that “only recently have

any courts thought to exercise such grants of latent authority to

cordon off entire criminal trials.” (Brief of Appellants at 24). To

the contrary, the first six cases mentioned by the Amici Curiae, Re-

porters, in their appendix indicate that closure motions had been

used before this Court’s decision in Gannett. To what extent the

Gannett decision may have affected the practice of trial courts

throughout the country is simply not shown by this insufficient data.

8 District of Columbia v. Clawans, 300 U.S. 617 (1937) (de-

termining what is a petty offense with respect to the right to trial by

jury); Wolf v. Colorado, 338 U.S. 25 (1949) (determining that the

exclusionary rule should not be applied to States); Mapp v. Ohio,

367 U.S. 643 (1961) (determining that exclusionary rule should

apply to States) Baldwin v. New York, 399 U.S. 66 (1970) (de-

termining what is a petty offense for jury trial purposes); Scott v.

Williams, ... U.S. ..., 59 L.Ed.2d 383 (1979) (determining an

indigent defendant’s right to appointed counsel).

tional contours of the accused Sixth Amendment right to

trial by jury. In Duncan v. Louisiana, 391 U.S. 145

(1967), the Court applied the Sixth Amendment guarantee

of trial by jury to the states through the Fourteenth Amend-

ment. In Williams v. Florida, 399 U.S. 78 (1970) the

Court refused to hold unconstitutional laws of various

states allowing juries of less than twelve persons. The Court

noted that the holding in Williams did “no more than leave

these considerations to Congress and the states, unre-

strained by an interpretation of the Sixth Amendment that

would forever dictate the precise number that can consti-

tute a jury.” Jd., at 103.

Following similar reasoning in Apodaca v. Oregon, 406

U.S. 404 (1972) the Court found that the Constitution

does not require jury verdicts to be unanimous. Of par-

ticular interest here is Mr. Justice Powell’s concurrence in

Apodaca:

“In an age in which empirical study is increasingly

relied upon as a foundation for decision-making, one

of the more obvious merits of our federal system is the

opportunity it affords each state, if its people so choose,

to become a ‘laboratory’ and to experiment with a

range of trial and procedural aliernatives. Although

the need for the innovations that grow out of diversity

has always been great, imagination unimpeded by un-

warranted demands for national uniformity is of special

importance at a time when serious doubt exists con-

cerning the adequacy of our criminal justice system.

The same diversity of local legislative responsiveness

that marked the development of economic and social

reforms in this county, if not barred by an unduly

restrictive application of the Due Process Clause, might

well lead to valuable innovations with respect to de-

termining—fairly and more expeditiously—the guilt or

innocence of the accused.” Jd. at 376.

Most recently, in Burch v. Louisiana, 441 U.S. 130

(1979), which establishes the Constitutional requirement

of unanimous verdicts by six member juries, the Court

found the experience of the states instructive:

“It appears that from those states that utilize six mem-

ber juries in trials of nonpetty offenses, only two, in-

cluding Louisiana, also allow nonunanimous verdicts,

We think that this near-uniform judgment of the nation

provides a useful guide in delimiting the line between

those jury practices that are constitutionally permissible

and those that are not.” ° Jd. at 104 n. 8. (Emphasis

added. )

Thus, the present void of experience of the States in dealing

with trial closure motions counsels strongly against granting

certiorari for the purpose of fashioning new constitutional

rules of access to criminal trials.”

The uncertain parameters and consequences of the novel

® Between the Court’s decision in Williams and Burch it appears

that ten states adopted provisions to allow for juries of six men in

some criminal trials. And it was this trend of the States to decrease

the size of the jury following Williams which the Supreme Court

relied upon as its constitutional guide. Compare Williams v. Florida,

supra, at 138 (Harlan, J., dissenting) (appendix) and Burch v.

Louisiana, supra, at 138 n, 12.

Appellees suggest only that the Court refrain from a decision at

this time until the effects of Gannett, if any, are seen and other

courts and the state legislatures have had an opportunity to react

and the “judgment of the nation” is recorded. In this context it

should be pointed out that before the appellants noted their instant

appeal to this Court, the Virginia Attorney General’s Office com-

menced drafting a — Virginia Public Trial Act to be iatro-

duced in the January 1980 session of the Virginia General Assembly,

which proposals detail the procedures and standards for entry of a

closure order at any stage of a criminal trial. These efforts were

pursued at a time when a lawyer for the Appellants was quoted in a

Norfolk, Virginia newspaper as stating that “the State Supreme

Court’s denial . . . was not unexpected in the wake of the Gannett

decision” and that “[a]n appeal is not expected.” The Virginian-

Pilot, July 12, 1979, at A8, col. 6.

constitutional rights Appellants assert further suggests the

wisdom of avoiding a rush to constitutional adjudication

in this case. The questions that arise naturally from recog-

nition of the asserted rights of the public to attend trials are

unending. For example, if notice of requested closure is

required this may well increase the publicity concerning

the trial, the prejudice of which the accused is seeking pro-

tection by closure. Even if standing to object to closure is

limited to those present at the time the closure motion is

made, the extent and nature of the hearing necessary to

protect this right fully is unclear. Must the court hear each

individual spectator who objects? Must the court afford

persons who object an opportunity to be represented by

counsel? What evidence, if any, may objecting spectators

present and who has the ultimate burden of proof? What

appeal rights are available to persons whose objections to

closure are not sustained?

If the public is severely limited in its ability to object,

then perhaps a heavier burden is placed on the accused to

sustain his initial motion to close a trial. Too great a burden

upon an accused, especially indigent defendants, may well

preclude most defendants from success in seeking closure,

thereby increasing possibilities of prejudice to the accused’s

right to a fair trial and providing an additional basis for

appeal.

If objecting spectators and members of the press are af-

forded a relatively liberal opportunity to state their objec-

tions with the assistance of counsel and the introduction

of evidence, such an expanded hearing may well cause trial

delays adversely affecting the accused’s right to a speedy

trial. Appeals from rulings on closure motions, if inter-

locutory, will only further magnify trial delay. Criminal

defendants with limited resources may frequently find

themselves at a substantial disadvantage when a motion for

closure is opposed by the resources of the institutional press.

Appellants seek recognition of a constitutional right of

access to a public forum. Legislative attempts at establishing

rights of public access such as the Federal Freedom of In-

formation Act and the Virginia Freedom of Information

Act, have not easily defined and adjusted public access

rights. Both federal and state courts are deeply involved

in continued re-definition of such statutory public access

rights. Much legislative re-drafting has been necessary, and

the administration of these rights continues to be a major

effort.”

It is also difficult at this stage to forecast with any degree

of certainty the standard which will be appropriate to de-

termine when the risk to an accused’s right to a fair trial

is sufficient to overcome this newly declared right of access.

The appellants suggest an “all-but-conclusive presumption”

in favor of a public trial. The dissent in Gannett suggests

‘1 Virginia’s Freedom of Information Act came into being in 1968.

Since then the legislature in reviewing its administration has amended

it annually with the exception of 1969 and 1972. Some 20 bills have

been enacted amending this Act and numerous others have been in-

troduced but defeated. The Attorney General of Virginia has issued

some 122 official opinions interpreting its provisions. Though there

is no complete record of lower court decisions under the Act, the

Supreme Court of Virginia has taken and decided two appeals in-

volving its provisions. See Virginia Freedom of Information Act,

§§ 2.1-340 through 2.1-346.1 of the Code of Virginia (1950), as

amended; Annual Report of the Attorney General, 1968-1969

through 1978-1979; Archer v. Mayes, 213 Va. 633, 194 S.E.2d 707

(1973); and WTAR Radio-TV Corp. v. City Council, 216 Va. 892,

223 S.E.2d 895 (1976). Such a history is indicative of not only the

difficulty inherent in the establishment of rights of access but also the

need for flexibility in their administration. The federal statute has

given rise to similar problems. This Court has recognized that it is not

an easy task to balance the opposing interests and provide a workable

formula which encompasses, balances and protects all interests. Ad-

ministrator, Federal Aviation Administration v. Robertson, 422 U.S.

255, 261-262 (1975).

that the accused show a “substantial probability that ir-

reparable damage to his fair trial will result.” 99 S.Ct. at

2937. Mr. Justice Powell’s concurring opinion in Gannett

calls for the defendant “to make some showing that the

fairness of his trial likely will be prejudiced by public ac-

cess to the proceedings.” 99 S.Ct. at 2916. Without some

experience with trial closure orders, a constitutional stan-

dard appropriate to all concerns cannot be meaningfully

developed. For these reasons, this Court should not grant

certiorari in this case.

Il.

THE FIRST AMENDMENT DOES NOT AFFORD THE

PUBLIC OR PRESS A RIGHT TO ATTEND

CRIMINAL TRIALS

The First Amendment Protects Dissemination Of

Ideas And Information

The First Amendment has been viewed by this Court as

a guarantee of freedom to discuss and publish ideas and

information concerning public affairs and governmental

operations. First National Bank of Boston v. Bellutti, 435

U.S. 765 (1978); New York Times, Co. v. United States,

403 U.S. 713 (1971); Mills v. Alabama, 384 U.S 124

(1966); New York Times, Co. v. Sullivan, 376 U.S. 254

(1964); Near v. Minnesota, ex. rel Olson, 283 U.S. 697

(1931). The common thread of this Court’s First Amend-

ment decisions is the notion that freedom to disseminate

ideas and information about public affairs is central to the

purpose of the First Amendinent.

_ First Amendment guarantees extend to dissemination of

ideas and information concerning our courts and the admin-

istration of the judicial system. Landmark Communica-

tions, Inc. v. Virginia, 435 U.S. 829 (1977); Nebraska

Press Ass'n Vv. Stuart, 427 U.S. 539 (1976); Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469 (1975); Wood v.

Georgia, 370 U.S. 375 (1962); Bridges v. California, 314

US. 252 (1941).

These First Amendment rights to speak and publish con-

cerning courtroom events, as in other contexts, are not ab-

solute. Where utterances concerning court proceedings

present a clear and present danger to the fair administration

of justice such utterances may be punished. Bridges v. Cali-

fornia, supra; Wood vy. Georgia, supra; see also Craig Vv.

Harney, 331 U.S. 367 (1947); Pennekemp v. Florida, 328

U.S. 331 (1946). Fair trial considerations impose upon our

courts the constitutional duty to prevent bias against the

criminally accused threatened by unrestrained press access

to the courtroom. Sheppard v. Maxwell, 384 U.S. 333

(1966); Estes v. Texas, 381 U.S. 532 (1965). Thus, to

the extent that courtroom access has been considered by

this Court in prior decisions, access has never been viewed

as a matter of constitutional right. Instead, access and the

manner of reporting courtroom events has been perceived

as an interest of the public and press subject to limitation

by the paramount concern for the right of the accused to

a fair trial. Sheppard, Estes, supra.

The Appellants De Not Assert Infringement Of Any Established

First Amendment Right They Seek Establishment Of A New

Right Of Access Which Has Never Been Recognized

By This Court

This case does not call in question the established First

Amendment rights to speak, publish or receive informa-

tion. Instead, the Appellants urge the establishment of an

entirely new right of access to criminal trials. Gannett Co.,

Inc. v. DePasquale, 99 S.Ct. 2898, 2910-2912 (1979).

This right of access is said to arise from the public need

for the free flow of information about its governmental

institutions as a necessary feature in a system of self-gov-

ernment. Brief of Appellant, 27-30.

1.,

THE PuBLiIc Has No EXIsTING RIGHT OF ACCESS

TO CRIMINAL TRIALS

The free flow of information concerning our courts of

justice is undoubtediy a vital concern in oux system of

democratic self-government. Accordingly, the right of the

public and press to freely discuss and publish information

obtained concerning what transpires in our courts has been

repeatedly safeguarded. Bridges v. California; Landmark

Communications, Inc. v. Virginia; Cox Broadcasting Corp.

v. Cohn, supra. But it is a wholly different proposition to

suggest that the First Amendment guarantees access to all

sources of information that may be beneficial to informed

public opinion. First Amendment claims of access rights

have been consistently rejected by this Court. Houchins v.

KQED, Inc., 438 U.S. 1 (1978); Pell v. Procunier, 417

U.S. 817 (1974); Saxbe v. Washington Post Co., 417 U.S.

843 (1974); Zemel v. Rusk, 381 U.S. 1 (1965).

In Zemel the Court recognized the virtually limitless

reaches of the First Amendment argument Appellants assert

here, for “[t]here are few restrictions on action which could

not be clothed by ingenious argument in the garb of de-

creased data flow.” 381 U.S. 1, at 16-17. Thus, it was un-

equivocally held that “the right to speak and publish does

not carry with it the unrestrained right to gather informa-

tion.” 381 U.S. 1, at 17. The Appellants’ claim of a right

of the public to attend criminal trials under the First

Amendment is similarly meritless. Zemel, supra.

ibe

THE Press Has No First AMENDMENT RIGHT OF ACCESs To

CRIMINAL TRIALS WHICH IS GREATER THAN THAT OF THE PUBLIC

The Appellants argue that even absent a public right of

access to criminal trials, the press has such a First Amend-

ment right, contending that the Constitution protects “news

gathering.” Relying upon dicta found in Branzburg v.

Hayes, 408 U.S. 665 (1972), it is suggested that the First

Amendment affords at least “some protection for seeking

out the news,” out of which arises the right of the press to

attend criminal trials. But neither Branzburg nor any other

decision of this Court implies any First Amendment right of

the press to gain access to news sources. To the contrary,

Branzburg held that the paramount societal interest in ef-

fective administration of justice required that news re-

porters appear before grand juries and reveal the identity

of confidential news sources suspected of criminal activity

notwithstanding the fact that such grand jury testimony

may diminish future access to confidential news sources.

Thus, Branzburg can hardly be relied upon for the proposi-

tion that the First Amendment guarantees press access

to news sources. Mr. Justice Stewart, writing for the Court

in Pell v. Procunier, supra, explained the extent of any First

Amendment protection of news gathering stating:

“It is one thing to say that a journalist is free to seek

out sources of information not available to members of

the general public, that he is entitled to some con-

stitutional protection of the confidentiality of such

sources, cf. Branzburg v. Hayes, supra, and that gov-

ernment cannot restrain the publication of news ema-

nating from such sources. Cf. New York Times Co. v.

United States, supra. It is quite another thing to sug-

gest that the Constitution imposes upon government the

affirmative duty to make available to journalists sources

of information not available to members of the public

generally. That proposition finds no support in the

words of the Constitution or in any decision of this

Court.” 417 U.S. 817, at 834-835.

The First Amendment does not, therefore, guarantee the

press a right of access to news sources. Branzburg, Pell,

supra.

Recognition of a constitutional right of the press to

gather news would necessarily require a definition of the

term “press.” The practical problems involved in applying

such a right are at once evident. If, as appellants contend,

this special right of the press emanates from its function of

informing the public, would not the right to gather news

belong only to the large institutional press? But recogni-

tion of a right of this nature is inconsistent with the his-

torical context of the First Amendment which this Court

has found was designed to protect the “lonely pamphleteer”

as well as the large newspaper publisher. Branzburg, supra,

at 704. Moreover, there is no requirement that the press

publish information gained through this asserted right of

access. Houchins, supra, at 14. The public’s interest in self-

government, therefore, is not necessarily advanced by rec-

ognition of such a special right of access for the press.

There is, accordingly, no discernable basis for recognition

of a constitutional right of access to news sources which

the press asserts here. Indeed, the decisions of this Court

have repeatedly rejected any suggestion that the First

Amendment affords special rights to the press. Branzburg,

Pell, Saxbe, Houchins, supra.

é..

The Fact That Criminal Trials Have Customarily Been Open To

The Public And Press Does Not Establish A

Constitutional Right Of Access

Our custom of public criminal trials is well-established.

In re Oliver, 333 U.S. 257 (1948). But the explicit con-

stitutional right of the accused under the Sixth Amendment

to demand a public trial must account, in large part, for

the custom of public trials. In any event, the fact that ex-

clusion of the public and press from criminal trials is cus-

tomarily rare does not establish for the benefit of the public

and press a constitutional right to require public trials.

See Gannett, supra, at 2910 n. 19.

The Appellants suggest that the traditionally public

character of our courtrooms supports recognition of a First

Amendment right of access. They contend that because

courts are customarily viewed as public places there is

greater reason for recognizing a First Amendment right of

access to criminal trials than might obtain in situations

where rights of access to places not usually public have

been advanced. Cf. Pell, Saxbe, Houchins. But this Court’s

refusal to recognize a First Amendment right of access to

places traditionally closed to public view in Pell, Saxbe

and Houchens, suggests that there is even less reason to

recognize a right of access to customarily public places. If,

as the Appellants contend, the First Amendment right of

access is premised upon the public’s need for information

concerning the operations of government, then a stronger

case for public rights of access is made with respect to

governmental operations in places where public access is

customarily limited. Our tradition of public trials and the

right of the accused to require a public trial are factors

which militate against any need for recognition of a new

constitutional right of access to criminal trials.

The Function Of A Criminal Trial Does Not Imply A

Right Of Public Access

Criminal trials “are held for the solemn purpose of en-

deavoring to ascertain the truth which is the sine qua non

of a fair trial.” Estes v. Texas, supra, at 540. The “atmos-

phere essential to the preservation of a fair trial—the most

fundamental of all freedoms—must be maintained at all

costs.” Id. The chief function of a criminal trial is, there-

fore, to fairly adjudicate the charges against the accused.

It goes without saying that a fair trial is the paramount

concern of the accused and is, indeed, his right. Society’s

interest in observing the trial process is to ensure that our

criminal justice system does not become a means of govern-

mental persecution. Jn re Oliver, supra, at 270. Thus, the

main societal function and interest in criminal trials co-

incides with the interests of the accused. The accused does

not, of course, have the unilateral right to require trial clo-

sure. Singer v. United States, 380 U.S. 24 (1965). Our ad-

versary system of criminal justice is premised on the duty

of the prosecutor and judge to represent the public’s in-

terest in criminal trials. Berger v. United States, 295 U.S.

78 (1935); Sheppard v. Maxwell, 384 U.S. 333 (1966).

But where the accused, prosecutor and judge all deem trial

closure necessary to ensure a fair trial closure cannot be

said to subvert the function of the criminal justice system

or the interests of the public in the operations of that sys-

tem.

Appellants apparently dismiss these premises which are

the very foundations of our criminal justice system. They

suggest that absent a constitutional right of the press and

public to demand access to criminai trials closed trials may

become the rule for the mere convenience of prosecutors

and judges. This argument ignores our historical experience

and proves too much. If prosecutors and judges are deemed

inherently incapable and unwilling to protect societal in-

terest in the criminal justice system then our entire criminal

justice system requires constitutional re-examination. See

Part III, infra at pp. 36-37.

The Appellants maintain that only through recognition

of a right of public access to criminal trials can the vital

functions of a trial be accomplished. Their contention is that

the vital function of a criminal trial is informational, pro-

viding a “social drama” through which the community at

large can inform itself about and experience criminal jus-

tice. Appellant’s Brief, 33-34. The public undoubtedly

gains knowledge of the criminal justice system through

observing its operation, but experience shows that the aver-

age citizen infrequently takes advantage of this informa-

tional opportunity. Saxbe, supra at 863 (Powell, J, dis-

senting). To the extent that criminal trials serve this in-

formational function, our tradition of public trials in the

vast majority of cases will continue to serve this societal

need.

The fair adjudication of the accused, however, must re-

main the central focus and primary function of our criminal

justice system. Estes, supra, at 540. The abstract right to

know cannot be said to occupy the position of central im-

portance when assessing the functions of the criminal jus-

tice system. The overriding importance of the constitutional

guarantee of a fair trial, in some circumstances, has re-

quired limitations on public and press access to the court-

room. Sheppard, supra, at 358. Thus, the most vital and

paramount function of the criminal trial in our society does

not require that the public have a First Amendment right of

access to all criminal trials.

THE SIXTH AMENDMENT EMBODIES NO PUBLIC

RIGHT OF ACCESS TO CRIMINAL TRIALS

In Gannett Co. Inc. v. DePasquale, 99 S.Ct. 2898

(1979), this Court stated that the Sixth Amendment’s pub-

lic trial guarantee does not give the public a right of access

to criminal proceedings: “members of the public have no

constitutional right under the Sixth and Fourteenth Amend-

ments to attend criminal trials.“ 7d. at 2911.

The Sixth Amendment Guarantee Of The Right To A

Public Trial Is Personal To The Accused

By Its LITERAL TERMS THE SIXTH AMENDMENT SECURES

THE RIGHT To A PUBLIC TRIAL ONLY To THE ACCUSED

In finding that the Constitution nowhere mentions any

right of public access to a criminal trial, the Gannett ma-

jority stated that the constitutional guarantee of a public

trial is “one created for the benefit of the defendant.” Jd.

at 2905. In essence, the majority concluded that the Sixth

Amendment means precisely what it says, that is that “the

12 The Appellants suggest, for example, that closure forecloses the

opportunity of the public to judge credibility of witnesses, noting

that the availability of a post-trial transcript is unsatisfactory. (Brief

of Appellant at 40-43). This presumes that the public’s judgment of

trial testimony is a vital function of a criminal proceeding. Obviously,

only the trier of fact must judge the credibility of witnesses in order

to ensure the proper function of a trial. Even appellate courts, which

have an institutional function in the criminal justice system, do not

have the advantage of live testimony.

accused shall enjoy” a right to public trial.** This literal

reading is consistent with the over-all design of the Sixth

Amendment, which has as its overriding purpose the pro-

tection of the accused from judicial and prosecutorial

abuses. Jd. at 2905-06. This conception 0° he public trial

guarantee finds consistent support in the Jecisions of this

Court and various lower federal and state courts. It also

finds support in numerous commentaries.”

EXISTENCE OF A COMMON LAW RULE OF OPEN CiviL AND

CRIMINAL PROCEEDINGS DOEs NoT ESTABLISH A SIXTH

AMENDMENT RIGHT IN THE PUBLIC TO ATTEND

A CRIMINAL TRIAL

While a majority of this Court in Gannett recognized

the existence of a common law tradition of open civil and

criminal proceedings, they found no evidence that the

framers of the Sixth Amendment intended to create a con-

stitutional right of access in the public. 99 S.Ct. at 2908.

Thus, the court refused to ascribe constitutional dimension

18 The Sixth Amendment provides in pertinent part: “In all crim-

inal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the

crime shall have been committed. . . .” U.S. Const., Amendment VI.

14 See, e.g., Estes v. Texas, 381 U.S. 532, 538-39, 583 (1965); In

Re Oliver, 333 U.S. 257, 270 (1948); Patton v. United States, 281

U.S. 276, 298 (1930); United States v. Geise, 265 F.2d 659, 660

(9th Cir. 1959) (per curiam); United States v. Sorrentino, 175 F.2d

721, 722-23 (3rd Cir. 1949); United Press Ass’n v. Valenti, 308

N.Y. 71, 81, 123 N.E.2d 777, 781 (1954). Only one court is known

to have held that the Sixth and Fourteenth Amendments confer upon

members of the public a right of access to a criminal trial. United

States v. Cianfrani, 573 F.2d 835 (3rd Cir. 1978). That holding,

however, has been criticized for its departure from the plain meaning

of the Sixth Amendment. See, Gannett, supra, at 2906 n. 9.

15 See commentaries summarized in Gannett, 99 S.Ct. at 2906

n. 9; Douglas, The Public Trial and the Free Press, 33 Rocky Mt.

L. Rev. 1, 5 (1960).

to the common law tradition. Indeed, the majority notes that

in “conspicuous contrast with some of the early state con-

stitutions that provided for a public right to open civil and

criminal trials, the Sixth Amendment confers the right to

a public trial only upon a defendant and only in a criminal

case.” Id. at 2908-09. The refusal to raise custom and tradi-

tion to the level constitutional mandate is entirely consistent

with the fact that historically very few common law rules

have been elevated to the status of constitutional rights. /d.

at 2908.

Had the framers intended to elevate and embody within

the Constitution the common law tradition of open pro-

ceedings, it is not logical to assume that the only reference

to a public trial would be found in the Sixth Amendment,

which by its terms speaks only of the accused in a criminal

case. Moreover, were this Court to ignore the clear text and

structure of the Constitution to find within the Sixth

Amendment a public right of access to criminal trials, in-

numerable unanswered questions would arise concerning

the scope of such a right within the trial process. See I,

infra, pp. 18-21.

The Right To A Fair Trial Must Not Be Denied

THE ACCUSED’s RIGHT To A Fair TRIAL Is PARAMOUNT TO

ANY SOCIETAL INTEREST IN A PUBLIC TRIAL

In any criminal proceeding, the ultimate concern is for

protection of the accused’s right to a fair trial.** This Court

has referred to this right as “unquestionably one of the most

*°In The Right To A Fair Trial, Mr. Justice Powell, then Presi-

dent of the American Bar Association, recognized this concern,

noting that:

precious and sacred safeguards enshrined in the Bill of

Rights,” Nebraska Press Ass'n V. Stuart, 427 U.S. 539, 572

(1976) (Brennan, J., concurring), and in fact has char-

acterized it as “the most fundamental of all freedoms.”

Estes v. Texas, 381 U.S. 532, 540 (1965). Although the

press should normally be allowed the opportunity to observe

judicial proceedings, “its exercise must be subject to the

maintenance of absolute fairness in the judicial process.”

Id. at 539 (emphasis added). “[T]he life or liberty of any

individual in this land should not be put in jeopardy be-

cause of the actions of any news media....” Jd. at 540.

Accordingly, “the presence of the press at judicial proceed-

ings must be limited when it is apparent that the accused

might otherwise be prejudiced or disadvantaged.” Sheppard

v. Maxwell, 384 U.S. 333, 358 (19°56). Indeed, this Court

has made clear that “our system of law has always endeav-

ored to prevent even the probability of unfairness.” Jn Re

Murchison, 349 U.S. 133, 136 (1955).

Appellees fully realize, as did the majority in Gannett,

that there is a strong societal interest in public trials and

in the vast majority of cases, trials have in fact been open.

As noted, however, the societal interest in public trials must

yield whenever necessary to maintain “absolute fairness.”

To ensure such fairness, this Court placed an affirmative

obligation on trial judges to protect the rights of the ac-

[W]e must avoid being confused by generalizations and slogans

. . . some persons have talked about “a public right to know”

as if it were a constitutional right. These generalizations miss

the point... . We must bear in mind that the primary purpose

of a public trial and of the media’s right as a part of the public

to attend and report what occurs there is to protect the accused.

...The ultimate public concern is not the satisfaction of curi-

ousity or an abstract “right to know.” Rather it is the assurance

that trials are in fact fair and according to law.

Powell, The Right To A Fair Trial, 51 ABAJ 534, 538 (1965).

cused. Sheppard v. Maxwell, supra." In fulfilling this ob-

ligation, a trial judge must exercise broad discretion, which

should not be disturbed absent a clear showing of abuse.

See Nebraska Press Ass'n v. Stuart, supra, at 563. Cf.

Ehrlichman v. Sirica, 419 U.S. 1310 (1974). Indeed, this

Court recognized in Gannett that “our criminal justice sys-

tem permits, and even encourages, trial judges to be over-

cautious in ensuring that a defendant will receive a fair

trial.” 99 S.Ct. at 2905 n. 6. Moreover, it was stated that “a

trial judge may surely take protective measures even when

they are not strictly and inescapably necessary.” Jd. at 2904.

It would be the height of irony if the public was permitted to

use the accused’s constitutional right to a public trial, his

personal “safeguard against any attempt to employ our

courts as instruments of persecution,” ** to nullify his con-

stitutional guarantee of a fair trial." As one court concluded

in rejecting a media claim for a right of access to criminal

trials, “petitioners are seeking to convert what is essentially

17 Specifically, the Court stated:

Due process requires that the accused receive a trial by an

impartial jury free from outside influences. Given the per-

vasiveness of modern communications and the difficulty of

effacing prejudicial publicity from the minds of jurors, the

trial courts must take strong measures to ensure the balance

is never weighed against the accused. 384 U.S. at 362.

18 In Re Oliver, 333 U.S. 257, 270 (1948).

® Appellees submit that in this case the Virginia trial judge ex-

ercised his discretion to close the trial in good faith, out of legitimate

concern that an open proceeding would infringe the defendant’s

right to fair trial. Judge Taylor interrupted the trial, however, to

allow counsel for Appellants to present written and oral arguments

to the court challenging the closure order. (App. 7a-20a). Judge

Taylor concluded that an open proceeding would infringe the de-

fendant’s right to a fair trial and he was of the view that “where the

rights of the defendant are infringed in any way . . . [and] he makes

the motion .. . and . . . it doesn’t completely override the rights of

everyone else, then I’m inclined to go along with the defendant’s

motion.” (App. 17a). Accordingly, Judge Taylor adhered to his

closure order. (App. 21a).

ee ee ee eae

ate peer eRe NN

the right of a particular accused into a privilege for every

citizen, a privilege which the latter may invoke indepen-

dently of, and even in hostility to, the rights of the accused.

A moment’s reflection is enough . . . to demonstrate that that

cannot be....” United Press Ass'n v. Valente, 308 N.Y.

71, 81, 123 N.E.2d 777, 781 (1954).

RECOGNITION OF A SOCIETAL INTEREST IN PUBLIC TRIALS

CREATES NO CONSTITUTIONAL RIGHT ON THE PART OF

THE PUBLIC AND SOCIETY’S INTEREST IS FULLY

PROTECTED By THE PARTICIPANTS

The public, which includes the press, has important in-

terests in the trial of a person charged with a crime, not

the least of which is the interest of securing for an accused

a fair trial. See In Re Oliver, 333 U.S. 257 (1948). In

Gannett, however, this Court found that any recognition of

an independent public interest in the enforcement of Sixth

Amendment guarantees was a “far cry. . .from the creation

of a constitutional right on the part of the public.” 99 S.Ct.

at 2907. After concluding that interest alone does not

create a constitutional right, the Court found that there was

no basis for inferring a Sixth Amendment right on the part

of the public to attend criminal trials, since “[i]n an ad-

versary system of criminal justice, the public interest...

is protected by the participants in the litigation.” Jd. Like

the public interest in speedy trials and trial by jury, any

independent public interest in public proceedings is ade-

quately protected by the parties and the trial judge. /d.

Where a defendant waives his right to a jury trial, and the

prosecutor and the judge consent, for example, “it could

hardly be seriously argued that a member of the public

could demand a jury trial because of the societal interest

in that mode of fact-finding.” * Jd. Nor can it be seriously

argued that a member of the general public has any “right

to prevent a continuance in order to vindicate the public

interest in the efficient administration of justice.” Jd. at

2908. In short, “[t]he public’s interest is adequately safe-

guarded as long as the accused himself is given the oppor-

tunity to assert on his own behalf, in an available judicial

forum, his right to a trial that is fair and public.” United

Press Ass'n V. Valente, supra at 81, 123 N.E.2d at 781.”

Appellants argue, however, that the public’s interest is

not adequately protected by the participants in the litiga-

20—Inasmuch as the public trial clause is personal to the accused,

with the overriding purpose of protecting the accused’s right to a

fair trial, the public lacks sufficient standing to challenge a trial

closure. Any media interest is of a general nature shared by the

public at large. Such an interest provides an inadequate personal

stake in the outcome of the controversy for Art. III purposes. A

sufficiently concrete interest in the outcome of a suit is necessary,

however, to qualify as a case or controversy subject to a federal

court’s Art. III jurisdiction. See Singleton v. Wulff, 428 U.S. 106,

112 (1976). Moreover, to satisfy this Court’s prudential standing

limitations, parties must be “proper proponents of the particular

legal rights” on which they base their challenge, id., that is they

must be within the “zone of interests intended to be protected by the

constitutional . . . provision” on which they rely. 7d. at 123 n. 2.

(Powell, J., joined by Burger, Stewart and Rehnquist, JJ., concurring

in part and dissenting in part.) The Sixth Amendment, however,

secures the right to a public trial only to the accused and members

of the public therefore are not proper proponents of this right. This

is especially true where, as here, the trial closing was requested by the

accused and consented to by the prosecution.

*1 By the very nature of things, the accused’s defense is more than

likely to be adequate. As the court in Valente further stated:

Whatever concern the public may have for a defendant’s right

to a fair trial, it can seldom match that of the person whose

life or liberty is at stake. . . . As long as the defendant is as-

sured the right to invoke the guarantees provided for his pro-

tection, the public interest is safe and secure, and there is

neither need nor reason for outsiders to interject themselves

into the conduct of the trial.

308 N.Y. at 81, 123 N.E.2d at 781.

Bie AS tae one nt

fl a Ot A EN

tion. They speculate, for example, that occasional closed

hearings may foster corrupt bargains among prosecutors,

judges and defendants. Outside of an absolute ban on pri-

vate proceedings, however, no procedure could entirely

foreclose that possibility. Appellants’ argument calls into

question the integrity of the entire judicial process; which

is seldom, if ever, conducted completely in public. Rules

of procedure governing countless routine trials were not

designed or intended to entirely foreclose the possibility of

a judicial mistake.** The workability of our system depends

on the assumption that competent honest persons will oc-

cupy the positions of judge and prosecutor. Indeed, this

Court has recognized that a prosecutor “is the representa-

tive not of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially is as

compelling as its obligation to govern at all... .” Berger v.

United States, 295 U.S. 78, 88 (1935). “This responsibility

of the prosecutor. . .surely encompasses a duty to protect

the societal interest in an open trial,” Gannett, supra, at

2908 n. 12. In fact, most of the interests preserved by open

trials are concurrent with the interest of the prosecutor or

the defendant and can be asserted by them. Both have a

stake in the quality of testimony, the discovery of unknown

witnesses, and the conscientious performance of official

duties by trial participants. In the hypothetical case, where

the defendant, prosecutor and judge conspire to subvert

the public interest, it is doubtful that public observation

would provide much safeguard, since such a conspiracy

would in all likelihood be consummated in private discus-

sions, even if the formal proceedings were public.

Finally, the contentions that public trials restrain perjury

22 See Mr. Justice Stevens, Address at the University of Arizona

College of Law Dedication Ceremony, September 8, 1979.

“ce

and are needed to bring forward new witnesses “seem

anachronistic,” particularly in the modern publicity case,

“when many facts of the prosecution are widely broadcast

regardless of whether the hearing is open or closed. Taken

together, the arguments seem more the stuff of appealing

courtroom drama than substantial principles of modern

law.”* Similar observations have been made with respect

to other public interests purportedly advanced by open

trials.*

ANY GENERAL PUBLIC INTEREST IN LIMITING THE USE OF

TRIAL CLOSURES CAN BE PROTECTED By THE

POLITICAL PROCESS

A trial judge has the inherent power and the obligation

to close or restrict public access to the courtroom to protect

the rights of the parties and witnesses and generally to fur-

ther the fair administration of justice. See Gannett, supra

at 2910 n. 19; Sheppard v. Maxwell, supra at 358. To be

sure, closure orders should be sparingly employed and

should not be granted routinely or simply because the ac-

cused so moves. While in many instances less restrictive

measures may be employed, at times closure will be the

23 See Madsen, S., The Right To Attend Criminal Hearings, 78

Columbia L. Rev. 1308, 1323 n. 118 (1978).

24For example, the contention that public scrutiny improves the

performance of trial participants is weak. “Such scrutiny, when in-

tense, may actually impair performance by inducing a debilitating

self-consciousness.” Jd. 78 Columbia L. Rev. at 1323 n. 118. More-

over, one commentator has noted that the presence of a crowd in

the courtroom has been more often a stimulus to improper judicial

conduct than a check upon it. See Radin, The Right To A Public

Trial, 6 Temp. L. C. 381, 394 (1932). Finally, this was the fourth

trial of Stevenson and there is nothing to suggest that any of the

interests preserved by open trials were jeonardized by closure of this

trial.

Sis i ae rN

only effective remedy to protect constitutional rights of a

criminal defendant or the public interest in the fair and

orderly disposition of criminal proceedings. In many cases,

“[c]lontinuance, extensive voir dire examinations, limiting

instructions or venue changes may prove paltry protection

for precious rights” and “[rJeversals and new trials are

hardly acceptable alternatives.” Gannett Co., Inc. v. DePas-

quale, 43 N.Y.2d 370, 380, 372 N.E.2d 544, 550 (1977).*

Each case must be determined on the basis of its unique

facts and circumstances. The considered opinion of the

court, the prosecutor and defense counsel that closure is

necessary should not lightly be disregarded. Cf. Singer v.

United States, 380 U.S. 24, 34-35 (1965). Having im-

posed upon the trial judge the affirmative obligation to pro-

tect the rights of the accused,” it would surely be incon-

sistent to withhold the discretionary power necessary to

accomplish the task.

It is possible, of course, for some judges to abuse their

discretion and occasionally enter unwarranted closure

orders. While this may be an important consideration for

state legislatures to weigh in establishing and revising state

law and policy, it is not an acceptable justification for

creation of new constitutional rights.

*5 Specifically, continuance has been found in some instances to

work against speedy trial values. See Groppi v. Wisconsin, 400 U.S.

505, 510 (1971). Moreover, extensive voir dire can prove costly,

time-consuming and ultimately futile. See Irvin v. Dowd, 366 US.

717, 726-29 (1961). In addition, change of venue may prove useless

if the new location has been saturated with adverse publicity. See

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 545 (1976); Madsen,

S., The Right to Attend Criminal Hearings, 78 Colum. L. Rev. 1308,

1329 n. 152. Finally, instructions and sequestration may be of

limited value in offsetting the effects of prejudicial publicity.

eae ee Vv. Maxwell, supra at 352-63; Irvin v. Dowd, 366 U.S.

IV.

THE FIRST AND SIXTH AMENDMENTS, WHEN TAKEN

IN CONJUNCTION, DO NOT SUPPORT A PUBLIC

RIGHT OF ACCESS TO CRIMINAL TRIALS

Neither the First nor the Sixth Amendment alone pro-

vides a basis for a public right of access to criminal trials.”

Nor do these Amendments taken together support such a

right.

"hain this Court has found that in special circum-

stances separate constitutional rights may converge to

establish a new right not specifically enumerated. In most

such instances, however, the previously recognized con-

verging rights have significantly reinforced each other,

have promoted related purposes, and have conferred their

benefits upon the same person or persons. Moreover, the

newly established right was, in these cases, found necessary

to achieve the core purposes of the existing rights.

In Boyd v. United States, 116 U.S. 616 (1886), for

example, the Fourth and Fifth Amendments were found

to converge and reinforce each other to protect an indi-

vidual’s security and privacy against a statute authorizing

compulsory production of personal records for use as evi-

dence against the individual. The Court had recognized that

neither amendment on its own was sufficient to invalidate

the statute.

Similarly, in NAACP v. Alabama, 357 U.S. 449 (1958),

this Court found a right of association in che “close nexus

between the freedoms of speech and assembly,” protected

by separate clauses of the First Amendment. Jd. at 460.

Recognition of this right of association was found to clearly

promote the fundamental purposes of each clause, while a

failure to recognize the activity as protected would have

2? See Parts II and III supra.

frustrated those purposes. Similar analysis has been applied

in other cases.”*

In sharp contrast to the above-mentioned cases, the

Sixth Amendment right of a public trial is personal to the

accused and is designed to guarantee the accused a fair

trial. The concern of the First Amendment, however, is the

right of the press and public to disseminate information,

which in many instances may conflict with rather than

reinforce the purpose of the Sixth Amendment. Where such

conflict occurs, the First and Sixth Amendment rights can

hardly be said to be interdependent. Because of the poten-

tial conflict between these two Amendments and given

their divergent core purposes, there is no basis for finding

any public right of access from the separate existence of

the Amendments.”

THE COURT BELOW GAVE ALL APPROPRIATE

DEFERENCE TO ANY CONSTITUTIONAL RIGHT OF

ACCESS IN ITS DECISION TO CLOSE THE TRIAL

Assuming, arguendo, that there is a constitutional right

of access to criminal trials which runs to the public and the

press, the trial court, in the instant case, gave all appropriate

*8 See e.g., Griswald v. Connecticut, 381 U.S. 479 (1965); United

States v. United States District Court, 407 U.S. 297, 313-14 (1972).

*° Similarly, there is no merit to Appellant’s argument that a right

of access is implicit in the Anglo-American regime of ordered liberty

and is among the rights or privileges “retained by the people.” (See

Appellant’s Brief at IID). In support of this argument, Appellant

simply reargues his notion that common practice and tradition

establish a right of access as a fundamental right. This argument,

however, has been rejected in Gannett. 99 S.Ct. at 2907-09. More-

over, the tradition of open trials is in large part explained by the

explicit right of an accused to a public trial in a criminal case. Ac-

cordingly, this tradition should not be the basis for creation of new

— which may be hostile to the rights of the accused to a fair

trial.

deference to any right of access in its decision to close the

trial. The closure motion of defense counsel was based upon

prior difficulties in controlling a spectator who had appar-

ently transmitted information to witnesses. Upon motion

by the accused and without objection from the Common-

wealth’s Attorney or from any spectator, including Appel-

lants, the trial court ordered that the trial be closed to the

public and press. (App. at 5a-6a). Despite the Appellants’

failure to object at the time of closure, they were granted

a hearing after the first day of the trial at which they pre-

sented written and oral argument challenging closure.

(App. at 7a-20a). The trial court assumed that the public

and the press had a protected constitutional interest but

reasoned that there must be a balancing of that interest

against the defendant’s right to a fair trial (App. at 12a-

13a), an “evaluation” which counsel! for appellants agreed

was appropriate. (App. at 13a). The trial court ruled that

“where the rights of the defendant are infringed in any way

. ..[and] he makes the motion. . .and it doesn’t completely

override the rights of everyone else, then I am inclined to

go along with the defendant’s motion.” (App. at 17a).

Accordingly, the closure order was continued.

This Court approved similar procedural steps in Gannett

v. DePasquale, supra, at 2912. Though Appellants urge

that more stringent procedures are required, they further

maintain that the ruling of the trial court was defective

because there was “virtually nothing to support” closure.

(Brief of Appellant at 69). The record, however, discloses

several important factors which weighed in favor of protect-

ing the right of the accused to a fair trial through closure.

Appellants, on the other hand, offered no evidence to sup-

port the viability of reopening the trial.

As indicated previously, the closure motion was first

Se 0 an eee ME oe

premised upon a prior trial of the same defendant in which

there was difficulty involving conversations between wit-

nesses and a spectator.*° The trial court was also aware

and reminded that one of the previous mistrials was caused

by a prospective juror who related prejudicial newspaper

accounts to other jurors. The record further indicates that

the venire was a small community where jurors would be

more likely to be aware of and affected by any hostility

towards the defendant within the community evidenced

within the courtroom. The trial court also took note of the

layout of its facilities. Although this factor may have little

importance in the average case, this was not the average

case in the Circuit Court of Hanover County. A previous

guilty verdict had been overturned and two previous at-

tempts at retrial had ended in mistrials.** Thus, avoidance

of a third mistrial was a legitimate concern and enhanced

8° The record upon appeal does not articulate with precision every

factor which the trial court may have considered in ordering the

closure of the trial. However, this Court must recognize that the

closure motion was made on the fourth attenipt to try this defendant

and that the judge, prosecutor and defense counsel were fully aware

of the difficulties and problems which had arisen in the prior pro-

ceedings, as were appellants. (App. at 24a-39a). Though appei-

lants characterize the references in the record as being “nebulous

and unsupported” (Brief of Appellants at 67), the obvious explana-

tion is that such references were more than clear to the parties to the

prior proceedings and required no further detail. That they are

clearer to Appellants than they admit is apparent from the record in

this appeal which is amplified by appellants own news articles. (App.

29a, 34a, 35a, and 37a).

51 The Court’s reference to the layout of the courtroom evidenced

more than a desire to prevent the jury from seeing the spectators.

Though all of the Court’s concerns may not have been articulated,

appellants courtroom sketch, Exhibit A, shows that whenever the

jury goes to the jury room they must necessarily pass through the

spectator gallery. Furthermore, because the doorways to the jury

room lead to the gallery and the public arcade, it is to be expected

that even the inadvertant comments of spectators, let alone those

calculated to prejudice the accused, would be heard by the jurors.

the need to assure that prior difficulties would not be re-

peated. Estes; Sheppard, supra. Appellants offered no con-

tradictory evidence supporting an open proceeding but

suggested that alternatives to closure of the trial would

adequately protect the defendant’s right to a fair trial. Se-

questering the jury and change of venue, the only alterna-

tives specifically mentioned, were not viable under the cir-

cumstances. Sequestration was, at the time of the hearing

on closure, moot because the jury had been dismissed for

the day. A change of venue was no longer viable either

since the trial was already under way. Moreover, the prob-

lems the Court had experienced and which motivated clo-

sure involved the in-court intimidation of the jury.

Under the “all-but-conclusive” presumption which the

appellants seek to have established, it is doubtful that the

accussed in this case or any case, for that matter, would be

able to meet the burden of proof necessary for closure.”

Such a constitutional straitjacket should not be foisted upon

the criminal justice systems of the states without clear proof

of the need for it and the effects it will have.**

CONCLUSION

This nation’s longstanding tradition of public criminal

trials is not historical accident. It is the product of the

well-established constitutional rights of the accused and

82 Admittedly, at the expense of the accused’s right to a fair trial,

this presumption would avoid “the costly case-by-case task of judg-

ing future closure orders.” (Brief of Appellants at 61). The value of

this cost-saving device is itself constitutionally suspect in view of the

potential prejudice to an accused right to a fair trial.

*8 See Argument I, B, above. Unlike legislation which may be

readily changed and which allows for effective experimentation, a

constitutionally based rule is destined to be long-termed and in-

flexible.

“ AE Ne Eee hall Ne a

Mt OB ths Wt ts A AE Ww AE nm a

Satan vind mae. brn eninnd > ot ‘

responsible protection of public interests by those entrusted

with the administration of criminal justice.

Foremost among our aims has been the right of the ac-

cused to a fair trial—the most basic of all freedoms. The

assurance of a fair trial must continue to occupy this central

place in our scheme of justice, for otherwise there is little

need for the system itself. Adherence to these tried and

proven principles will not, as the Appellants suggest, usher

in an era of secret criminal trials.

The new constitutional rights urged in this case do not

arise out of experience which reveals their necessity. The

consequence of their establishment poses a myriad of im-

ponderables that may seriously threaten the central purpose

of criminal trials. It would be the ultimate irony, indeed

misfortunate, if in our well-intentioned efforts to add new

constitutional dimension to our proven system we threaten

its most vital function.

Respectfully submitted,

MARSHALL COLEMAN

Attorney General of Virginia

JAMES E. MOORE

LEONARD L. HOPKINS, JR.

MaRrTIN A. DONLAN, JR.

JERRY P. SLONAKER

Assistant Attorneys General

Supreme Court Building

1101 East Broad Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, Marshall Coleman, Attorney General of Virginia, a

member of the Bar of the Supreme Court of the United

States and one counsel for the Appellees in the above-cap-

tioned matter, hereby certify that three (3) copies of this

brief have been served upon counsel for all parties required

to be served by depositing the same in the United States

Post Office with first class postage prepaid this 9th day of

January, 1980.

MARSHALL COLEMAN

Attorney General of Virginia

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