The Case Against Closure
| Publication year | 2010 |
| Pages | 0010 |
A Look at the Law
The Case Against Closure: Open Courtrooms After Presley v. Georgia
by Edward D. Tolley and Devin Hartness Smith
In deciding whether to close pretrial and trial proceedings to the press and public, a court must integrate the constitutional concerns of due process, free speech, free press, public trial and impartial jury. Often the concern is the effect of pretrial publicity on potential and sitting jurors — that such publicity will create bias that cannot be prevented or overcome by remedies other than closure. Although the right of the accused is supreme, the general rule is in favor of openness, and courts must take special care to balance these interests. The recent U.S. Supreme Court decision in Presley v. Georgia[1] reaffirmed the federal position with regard to open courtrooms during each phase of criminal trials and reminded courts that all reasonable alternatives must be considered and articulated on the record before closure is granted.
Federal Closure Law Leading to Presley
In federal closure law, the constitutional right of the criminal defendant to a fair trial is paramount. As the
U.S. Supreme Court said in 1984 in Press-Enterprise Co. v. Superior Court (Press-Enterprise I), "[n]o right ranks higher than the right of the accused to a fair trial."[2] The Court's fair trial jurisprudence has been grounded in the due process clauses of the Fifth and Fourteenth
"Although the right of the accused is supreme, the general rule is in favor of openness, and courts must take special care to balance these interests."
Amendments and the public trial and impartial jury clauses of the Sixth Amendment.[3] The Court has said that the purpose of the public trial is "to guarantee that the accused [will] be fairly dealt with and not unjustly condemned."[4]Meanwhile, the First Amendment's free speech and press clauses provide a right of access for the press and the public that is constitutional but not absolute in nature.[5] The rights of the accused and of the press and public find a "common concern [in] the assurance of fairness."[6] As the U.S. Court of Appeals for the 11th Circuit said in United States v. Noriega, ""˜It is better to err, if err we must, on the side of generosity in the protection of a defendant's right to a fair trial before an impartial jury.'"[7]Therefore, the right of the press and the public to be present in the courtroom must sometimes yield when it could lead to "prejudice[] or disadvantage[]" for the accused.[8]
As the Court noted in 1986 in Press-Enterprise Co. v. Superior Court (Press-Enterprise II), the analysis of a First Amendment right of access claim involves two complementary considerations: first, whether the "place and process have historically been open to the press and general public," and second, whether access "plays a significant positive role in the functioning of the particular process in question."[9] If the proceeding at issue affirmatively meets these considerations, then a First Amendment right of access exists.[10] The Court has found that the public and the press have a First Amendment right of access to a criminal trial.[11] In Press-Enterprise I, the Court also found a First Amendment right of access to voir dire jury selection proceedings,[12]while in Waller v. Georgia, the Court found that the Sixth Amendment right to a public trial extends to pretrial suppression hearings.[13] Of course, the right of the accused to a fair trial being chief in these cases, it follows that the most "significant positive role" that the presence of the press and public can play is in assuring fairness, and as such, the defendant's wish regarding closure is of principal importance in the court's analysis.
As noted above, the right of access is not absolute, and "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."[14] If the prosecution, or the court, sua sponte, seeks closure over the objection of the defendant, then such closure must be required by a compelling government interest and narrowly tailored to serve that interest. As noted in Waller, these instances will be extremely rare.[15] In contrast, when the accused seeks closure, the court need only find a "substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent" and that "reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights."[16] If the defendant's request meets this burden, closure must still be narrowly tailored to serve the interest for which it is imposed.[17] In sum, where the defendant seeks closure, only a substantial probability of prejudice must be shown, whereas closure over the defendant's objection must meet a compelling interest. A trial court that finds closure necessary to preserve a fair trial must make specific findings demonstrating a substantial probability of prejudice by publicity that closure would prevent, and that no reasonable alternatives to closure exist.[18]
Georgia Closure Law
Georgia closure law is grounded primarily in the public trial clause of the Georgia Constitution.[19] The Supreme Court of Georgia has stated that the Georgia Constitution is more protective of open courtrooms than the federal one because of its demand that criminal trials "shall" be public.[20] At the outset, it should be noted that Georgia law cannot diminish the defendant's paramount federal constitutional right to a fair trial, and therefore Georgia's open courtroom rule can only be true insofar as an open trial furthers the objective of a fair trial. Once the accused's right to a fair trial is impinged, a proper application of the Georgia public trial clause requires maximum protection of the defendant's fair trial right.
In R. W. Page Corp. v. Lumpkin, the Supreme Court of Georgia emphasized the strong presumption in Georgia that the criminal trial and all its pre-, mid- and posttrial hearings shall be open unless the movant can "demonstrate on the record by "˜clear and convincing proof' that closing the hearing to the press and public is the only means by which a "˜clear and present danger' to his right to a fair trial or other asserted right can be avoided."[21] The Court said that a trial judge in Georgia has less discretion than a federal judge because the state constitution "commands that open hearings are the nearly absolute rule and closed hearings the very rarest of exceptions."[22] In determining whether and when trial and pretrial hearings in criminal cases may be closed, the Court held that Georgia judges must use jury sequestration as an alternative to closure "unless for some reason fully articulated in his findings of fact and conclusions of law jury sequestration (or another remedy) would not adequately protect the defendant's right to a fair trial."[23] In the rare case that a closure order is granted, it must be narrowly drawn and strictly construed in favor of openness; likewise, the trial court must make written findings of fact as to the alternatives to closure considered and why such alternatives would be insufficient.[24]
In Rockdale Citizen Publishing Co. v. State (Rockdale I), the accused and the state both moved for closure of pretrial hearings.[25] The Supreme Court of Georgia noted again that closure is for rare circumstances and cited Lumpkin for the proposition that it is only acceptable when a fair trial is "jeopardized by a clear and present danger."[26] The Rockdale I Court was not satisfied by the "con-clusory fashion" in which the trial court stated that it considered alternatives to closure, and it remanded the case for consideration of alternatives, emphasizing, as it had in Lumpkin, that an order for closure "must fully articulate the alternatives" and reasons why those alternatives would not protect the movant's right to a fair trial.[27] On remand, the trial court ordered closure of all pretrial hearings, and the newspaper again appealed. In Rockdale II, the Court found that the defendant's right to a fair trial was not put in clear and present danger by media coverage of the pretrial hearings, and it reiterated that closure should be rare and ""˜only for cause shown that outweighs the value of openness.'"[28]
More recently, in Berry v. State, two concerned jurors sent a note to the trial court regarding their personal connections with the defendant's family.[29] At one juror's request, the trial court cleared the courtroom of all spectators and questioned each juror separately. Berry argued that the dismissal was a violation of his right to a public trial. Affirming the conviction, the Court distinguished the case from Waller, where the trial court granted a pretrial closure motion by the state; in Berry, the trial court responded to an affirmative juror request in keeping with the juror privacy concerns expressed in Press-Enterprise 1.[30]The Court noted also that the defendant never objected to the exclusion of the public for the brief period of questioning.[31]
Electronic Media in Georgia
In addition to case law, Georgia trial judges facing closure issues find guidance in O.C.G.A. § 15-110.1, setting forth standards for courts in granting requests for televising, videotaping or filming of judicial proceedings. The Georgia Code requires that a court consider several factors, including the nature of the proceeding, the consent or objection of the parties, whether coverage "will promote increased public...
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