In Re Times-World Corp.

Citations: 373 S.E.2d 474; 7 Va. App. 317; 5 Va. Law Rep. 756; 15 Media L. Rep. (BNA) 2210; 1988 Va. App. LEXIS 113Docket: Record Nos. 0379-88-3, 0375-88-3

Court: Court of Appeals of Virginia; October 18, 1988; Virginia; State Appellate Court

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Times-World Corporation filed two petitions for writs of mandamus, challenging the trial court's unconstitutional denial of public and press access to closed proceedings, specifically during the voir dire of potential jurors in the criminal trial of John Henry Cassell, Jr. The Court of Appeals of Virginia determined that the trial court failed to follow proper procedures before closing the voir dire and related hearings, thereby incorrectly restricting access to the press and the public. Consequently, the court reversed the trial court's closure rulings and mandated the release of any transcripts or recordings of the closed sessions that had not yet been made public.

The trial began on March 21, 1988, in the Circuit Court of Patrick County, where the judge proposed conducting voir dire in chambers with groups of four veniremen. The defense counsel requested individual questioning, but the judge opted for groups to expedite the process, citing concerns about timing and space. When a reporter from Times-World Corporation sought access to observe voir dire, the judge expressed that admitting one reporter would require allowing all media, which he deemed impractical due to space limitations. Both the defense counsel and the Commonwealth's attorney discussed the issue, with the defense waiving any rights to press access based on the cramped conditions. The trial court continued with the closed voir dire despite these discussions.

The Commonwealth's Attorney expressed concerns about the perception of impropriety when court proceedings occur behind closed doors, advocating for press access to ensure transparency. The trial judge explained the necessity of closed hearings, citing potential risks of mistrial if jurors were exposed to pre-evidence discussions or influenced by press coverage. On March 23, 1988, during a three-day trial, the judge held closed hearings for various motions and objections, including voir dire, which he conducted without press presence, despite no request from defense counsel to do so. The judge's rationale for excluding the press included: limited space in chambers, the need for jurors to answer questions candidly, concerns over jurors hearing about non-evidentiary trial matters, and logistical challenges posed by the courthouse layout. Ultimately, the trial concluded with a not guilty verdict for the defendant later that day.

The Commonwealth contends that the case should be dismissed as moot following the conclusion of the trial. Generally, moot questions are not justiciable, and courts refrain from ruling on them to avoid issuing advisory opinions. However, issues related to the closure of criminal trials or hearings often become moot by the time they reach appellate courts due to the brief nature of trials. The U.S. Supreme Court acknowledges that its jurisdiction is not necessarily defeated by the end of a short-lived contest if the underlying dispute is "capable of repetition, yet evading review." Consequently, the court addresses the merits of the case.

The Supreme Court has consistently recognized that closure orders during trials are susceptible to this mootness exception. The decisions in Richmond Newspapers, Inc. v. Virginia and Globe Newspaper Co. v. Superior Court emphasize that jurisdiction remains intact despite the expiration of a challenged order if the underlying dispute is likely to recur without adequate review. The federal circuit courts have adopted a similar exception for cases involving trial closure to the public.

In the present case, the issues raised by Times-World Corporation are deemed capable of repetition yet evading review. Given the trial judge's rationale for closure, it is likely that similar orders will arise in the future. Accepting the mootness argument would prevent the substantive issues from being addressed, a concern echoed by the Supreme Court of Virginia. The case references Richmond Newspapers, Inc. v. Virginia, which recognized the entitlement of parties and judges to a merits decision despite the mootness of closure orders due to the termination of criminal proceedings.

Additionally, Richmond Newspapers, Inc. v. Virginia is highlighted as a landmark case affirming the First Amendment right of the press to attend criminal trials. Justice Brennan's concurring opinion established two key principles: the strength of access claims increases with a tradition of openness, and access should be granted when it promotes the functioning of the judicial process.

In Globe Newspaper Co. v. Superior Court, the Supreme Court, through Justice Brennan’s majority opinion, established a strict scrutiny standard for limiting access rights, allowing denial only if a compelling governmental interest exists and if the denial is narrowly tailored to that interest. Press-Enterprise I addressed public access to voir dire in criminal cases, emphasizing the presumption of openness in jury selection, which can only be overcome by a compelling interest that is specifically articulated and justified. Press-Enterprise II further affirmed that a qualified First Amendment right to access attaches if a proceeding demonstrates a historical tradition of openness and plays a significant role in the process. However, this access is not absolute; closure can be justified if narrowly tailored and supported by specific findings from the trial court. The Supreme Court of Virginia, in Richmond Newspapers, Inc. v. Commonwealth, provided guidelines for closure motions in criminal trials, requiring public notice, written motions, and a hearing where the moving party must demonstrate that an open hearing would jeopardize the defendant's fair trial rights. The court must articulate its findings on the record, and in cases where sensitive information is involved, the trial court may conduct hearings in camera to assess potential prejudice from public disclosure.

The trial court closed hearings without a request from either party and conducted a closure hearing after most public proceedings had ended. The court did not recognize that public access to hearings requires an "overriding interest" to justify closure, as established in Richmond Newspapers. It mistakenly believed that press access depended on the defendant’s request and failed to adequately notify the press or allow them to suggest alternatives to closure. The closure hearing should have occurred prior to the closure order, allowing the court to articulate its reasons if necessary. The reasons given for closure, primarily inconvenience, did not meet the standard for overriding public interest. Additionally, the closure order was overly broad, as the hearings included significant proceedings beyond mere bench conferences. The court's logistical concerns about accommodating the press did not justify closing the hearings entirely. Although eight media representatives were accommodated in chambers during a hearing deemed crowded, the court expressed apprehension about jurors being influenced by media reports during the trial. This concern could be mitigated by routinely instructing jurors to avoid outside information, which was done at the end of the first trial day.

Jurors were explicitly instructed to avoid consuming any media related to the case, emphasizing the need to base their decisions solely on evidence presented in court. This cautionary instruction was reiterated multiple times during the trial, including at lunch breaks and after the second day of proceedings. The court operates under the presumption that jurors followed these instructions unless indicated otherwise. The trial court took precautions to mitigate potential media influence on the jury. However, the judge's decision to close the voir dire process, based on concerns that jurors might not respond candidly if questioned publicly, was deemed unwarranted. The judge did not initially express concerns regarding juror frankness, and the procedures outlined in Press-Enterprise I were not followed. These procedures stipulate that jurors should be informed they can request private questioning if public inquiry might cause embarrassment, ensuring a valid basis for privacy claims. The trial court failed to maintain public access to proceedings without demonstrating an overriding interest justifying closure. The court did not conduct required hearings before issuing closure orders and did not provide adequate notice to the media. Consequently, the trial court's closure order is reversed, and it is mandated to release recordings and transcripts of the closed proceedings.