State v. Densmore

STATE_V_DENSMORE.91-434; 160 Vt. 131; 624 A.2d 1138


[Filed 12-Mar-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 91-434


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Caledonia Circuit

 Richard Densmore                             December Term, 1992



 Walter M. Morris, Jr., J.

 Philip H. White and Susan L. Stitely of Wilson & White, P.C., Montpelier,
    for appellant-intervenor

 E.M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
    Montpelier, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.   Intervenor Caledonian-Record Publishing Co. appeals from a
 district court order denying its motion for access to a psychosexual evalu-
 ation of a criminal defendant submitted to the court for consideration in
 sentencing.  Intervenor claims that the court violated its First Amendment
 right of access to criminal proceedings by sealing the document without
 making specific findings indicating that alternatives to closure were
 inadequate to protect the compelling interests at stake.  We agree and
 reverse.
      Defendant Richard Densmore was charged with four counts of lewd and
 lascivious conduct and one count of sexual assault.  Following negotiations,
 he agreed to plead nolo contendere to three counts of lewd and lascivious
 conduct, and the State agreed to dismiss the other charges.  The State also
 agreed to recommend three consecutive sentences of one to five years, all
 suspended except for twenty days on each charge.  Defendant, joined by the
 State's Attorney, submitted a psychosexual evaluation to the court in
 support of the plea agreement; they requested that the court consider the
 evaluation in lieu of a presentence report and that the evaluation remain
 confidential.  Intervenor objected to sealing the evaluation.  The court
 noted the objection.
      After reviewing the evaluation, the court rejected the proposed plea
 agreement, and defendant withdrew the evaluation.  The court then indicated
 that it would be willing to accept a plea if the time served were increased
 from twenty to thirty days on each charge.  Defendant agreed and proceeded
 to sentencing.
      After sentencing, intervenor was heard briefly on its objection to the
 sealing of the evaluation.  The court ordered defense counsel to maintain
 the document under seal until further order.  Thereafter, intervenor
 formally moved to intervene and for access to the evaluation on the ground
 that it had been considered by the court in determining defendant's
 sentence.  Following a full hearing, the court concluded that the press and
 the public have a qualified First Amendment and common-law right of access
 to documents filed with the court in connection with sentencing proceedings.
 It concluded, however, that compelling privacy interests outweighed
 disclosure of the contents of the document to the press and public and that
 no lesser remedy than continued sealing of the document was available to
 protect these interests.  Intervenor appeals from this decision.
      The United States Supreme Court has developed a two-step analysis in
 determining the public right of access to preliminary criminal proceedings
 under the First Amendment.  See Press-Enterprise Co. v. Superior Court of
 California, 478 U.S. 1, 13-14 (1986) (Press-Enterprise II).  First, the
 trial court must determine whether the First Amendment right of access
 extends to the judicial proceeding or document at issue.  Id. at 13.
 Second, if the court finds that such a right of access attaches, then it
 must determine whether nondisclosure "is essential to preserve higher values
 and is narrowly tailored to serve that interest."  Id. at 13-14.
      We applied the Press-Enterprise analysis in State v. Tallman, 148 Vt.
 465, 537 A.2d 422 (1987), and on the first step held that, under the First
 Amendment, the press and public have a qualified right of access to
 affidavits of probable cause and pretrial suppression hearings.  Id. at 472-
 73, 537 A.2d  at 427.  While the Tallman Court agreed on the result to the
 second step, it was split 2-to-2 on the proper standard to apply in
 determining whether closure was appropriate despite the right of access.
 Justice Hill's opinion concluded that the trial court erred by restricting
 access to the affidavits and parts of the hearings without first making
 specific findings demonstrating that "'there is a substantial probability
 that the defendant's right to a fair trial will be prejudiced by
 publicity.'"  Id. at 474, 537 A.2d  at 428 (quoting Press-Enterprise II, 478
 U.S. at 14).  Chief Justice Allen concluded that "a party seeking to close a
 suppression hearing need only advance an overriding interest that is likely
 to be prejudiced."  Id. at 476, 537 A.2d  at 429.
      The result in Tallman was reaffirmed in Greenwood v. Wolchik, 149 Vt.
 441, 544 A.2d 1156 (1988), in which we held that the "mere possibility of
 prejudice" at trial due to publicity was insufficient to outweigh the First
 Amendment right of access to affidavits of probable cause.  Id. at 445, 544 A.2d  at 1158.  Because the defendant did not even meet the lower standard,
 we did not need to decide which standard applied.  In State v. Schaefer,
 ___ Vt. ___, 599 A.2d 337 (1991), the Court was again divided 2-to-2 on
 whether the Press-Enterprise II standard for closure applied.
      The United States Supreme Court has not addressed the First Amendment
 right of access to plea hearings or sentencing proceedings, but other courts
 have applied the Press-Enterprise analysis to requests for access to such
 proceedings.  See, e.g., Washington Post v. Robinson, 935 F.2d 282, 287-88
 (D.C. Cir. 1991) (plea agreements); United States v. Corbitt, 879 F.2d 224,
 228-30 (7th Cir. 1989) (sentencing); In re Washington Post Co., 807 F.2d 383, 389-90 (4th Cir. 1986) (plea hearing and sentencing).  Because no right
 to fair trial is at issue in these proceedings, the arguments in favor of
 the lower standard are less persuasive.  We apply the Press-Enterprise
 analysis herein without deciding whether this standard is also applicable to
 closure of pretrial suppression hearings.
                                     I.
      In Press-Enterprise II, the United States Supreme Court determined that
 a qualified First Amendment right of access attaches when (1) the place and
 process have historically been open to the press and public, and (2) public
 access plays a significant, positive role in the functioning of the
 particular process in question.  Press-Enterprise II, 478 U.S.  at 8.
 Intervenor maintains that the press and public traditionally have had a
 right to attend sentencing hearings and that this right extends to documents
 submitted for the court's consideration during such proceedings.
      Defendant does not dispute the historical right of access to sentencing
 hearings, see, e.g., In re Washington Post, 807 F.2d  at 389 (First Amendment
 right of access of press and public extends to sentencing proceedings), but,
 rather, argues that the right of access does not attach to all documents
 submitted in connection with sentencing.  Relying on United States v.
 Corbitt, 879 F.2d  at 228-29, he contends that the public right of access to
 documents submitted at a sentencing hearing must be considered separately
 from the public right to attend the hearing itself.  In Corbitt, the United
 States Court of Appeals for the Seventh Circuit found that presentence
 reports have historically been confidential and, therefore, held that no
 First Amendment right of access attaches to presentence reports.  Id.  Our
 own rules are designed to assure the confidentiality of presentence reports.
 See V.R.Cr.P. 32 (c)(5).  Defendant argues that the reasons underlying the
 traditional confidentiality of presentence reports are equally applicable to
 the psychological evaluation submitted in this case.  Consequently, he
 contends that we should hold that the evaluation, although not part of a
 presentence report, is not subject to the First Amendment right of access.
      We do not decide whether the First Amendment right of access attaches
 to presentence reports because the psychosexual evaluation submitted in this
 case was not part of, nor was it equivalent to, a presentence report.
 Unlike a presentence report, which is prepared by a probation officer at
 the request of the court, the psychological evaluation in this case was
 prepared by a psychologist at the request of defendant.  Further, defendant
 reviewed the evaluation before deciding to submit it to the court in support
 of the plea agreement and the recommended sentence. (FN1) A defendant does not
 have such control over the submission of a presentence report; consequently,
 the analysis set forth in Corbitt regarding the presentence report is not
 applicable in this case.
      Even if we examine the historical right of access to a psychological
 evaluation independently from the right of access to sentencing proceedings,
 as in Corbitt, we find no support for defendant's contention that these
 evaluations have traditionally been confidential when submitted by the
 parties.  The test is not whether this evaluation is similar to those
 typically submitted in a presentence report but, rather, whether
 psychological evaluations submitted by parties have traditionally been open
 to the press and public.  Defendant presents no authority to show otherwise.
 Indeed, existing case law suggests that the contrary is true.  See In re
 Washington Post, 807 F.2d  at 390 (right of access applies to documents filed
 by the state in connection with sentencing hearing); CBS, Inc. v. United
 States District Court, 765 F.2d 823, 825 (9th Cir. 1985) (presumption that
 public and press have right of access to criminal proceedings and documents
 filed therein); Sarasota Herald Tribune v. Holtzendorf, 507 So. 2d 667, 668
 (Fla. Ct. App. 1987) (psychological report, not part of presentence report,
 held to be within public domain unless it can be shown to be otherwise
 privileged).  We conclude that a presumption of openness prevails and that
 documents submitted by the parties in sentencing hearings are subject to a
 qualified right of inspection by the public.
      Public access to sentencing hearings, and to documents filed in
 connection therewith, plays an important role in the sentencing process.  In
 Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984)
 (Press-Enterprise I), the United States Supreme Court explained the
 importance of the open trial in the administration of justice.
           The value of openness lies in the fact that people not
           actually attending trials can have confidence that
           standards of fairness are being observed; the sure
           knowledge that anyone is free to attend gives assurance
           that established procedures are being followed and that
           deviations will become known.  Openness thus enhances
           both the basic fairness of the criminal trial and the
           appearance of fairness so essential to public confidence
           in the system.
 Id. at 508 (emphasis in original).  This reasoning applies with even more
 force to proceedings conducted without a jury so as to "'safeguard against
 the corrupt or overzealous prosecutor and against the compliant, biased, or
 eccentric judge.'"  Press-Enterprise II, 478 U.S.  at 12-13 (quoting Duncan
 v. Louisiana, 391 U.S. 145, 156 (1968)); cf. Greenwood, 149 Vt. at 444, 544 A.2d  at 1158 (public access to affidavits of probable cause is all the more
 important because of absence of citizen involvement, such as jury or grand
 jury).  The presence of the public protects against coercion in obtaining a
 guilty plea and against arbitrary or disproportionate sentences.  In re
 Washington Post, 807 F.2d  at 389.  Further, it contributes to public
 understanding of the criminal justice system and improves the quality of the
 system by subjecting it to "the cleansing effects of exposure and public
 accountability."  Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 587 (1976)
 (Brennan, J., concurring); accord Greenwood, 149 Vt. at 444, 544 A.2d at
 ___.
      The instant case in particular presents a compelling argument for
 openness at sentencing.  Here, defendant was sentenced to serve a total of
 ninety days after pleading guilty to three charges of child sexual abuse.
 The evidence before the sentencing court included the psychosexual
 evaluation; two victim impact statements, one requesting the maximum
 punishment possible, both requesting imprisonment; and statements by two
 victims' advocates that three victims supported the plea agreement.  The
 mother of one victim nonetheless thought one year of imprisonment was more
 appropriate.  Another victim did not want defendant to have to serve any
 time.  The only information concerning defendant and his background was
 contained in the psychological evaluation.  This report essentially formed
 the basis for defendant's sentence.  Without access to this information, the
 public cannot have a full understanding of the sentence or assurance that
 justice has been done.  See Press-Enterprise I, 464 U.S.  at 509 (open
 proceedings create public awareness that criminal justice system is
 functioning and offenders are being brought to account for their criminal
 conduct).
      We hold, therefore, that a qualified First Amendment right of public
 access attaches to documents submitted by the parties in sentencing
 proceedings.  This opinion should not be read to remove the privilege
 attached to presentence reports, see 28 V.S.A. { 204(d), an issue that is
 not before us.


                                     II.
      Although we recognize a First Amendment right of access to sentencing
 documents, this right is not absolute.  See Tallman, 148 Vt. at 473, 537 A.2d  at 427 (constitutional right of access to pretrial proceedings and
 affidavits of probable cause is not absolute).  Access may be denied,
 however, only if a three-part test is satisfied.
         [C]riminal proceedings may be closed to the public
         without violating First Amendment rights only if (1)
         closure serves a compelling interest; (2) there is
         "substantial probability" that, in the absence of
         closure, that compelling interest would be harmed; and
         (3) there are no alternatives to closure that would
         adequately protect that compelling interest.
 In re Washington Post, 807 F.2d  at 392 (citing Press-Enterprise II); see
 also Robinson, 935 F.2d  at 290 (same test); cf. State v. Schaefer, ___ Vt.
 at ___, 599 A.2d  at 343 (2-to-2 split over whether to adopt "substantial
 probability" test of Press-Enterprise II).  Moreover, a decision to deny
 access cannot be based on conclusory statements but, rather, must be
 supported by specific factual findings.  Press-Enterprise II, 478 U.S.  at
 13; In re Washington Post, 807 F.2d  at 392; CBS, Inc., 765 F.2d  at 825.
      Thus, initially, we examine what interests or rights might outweigh the
 right to access.  In Press-Enterprise I, 464 U.S.  at 510, and Press-
 Enterprise II, 478 U.S.  at 14, the interest balanced against the First
 Amendment right was the defendant's Sixth Amendment right to a fair trial.
 Similarly, in Tallman and Greenwood, this Court considered the effect of
 pretrial publicity on a defendant's right to a fair trial.  A defendant's
 interest in a fair trial is, of course, a compelling one.  The question
 before us is whether any of the interests asserted in this case is
 compelling enough to outweigh a qualified First Amendment right of access.
      Defendant argues that several compelling interests outweigh the
 constitutional right of access here and require sealing the psychosexual
 evaluation.  First, defendant argues that the privacy interests of victims
 and third parties should be protected by sealing the document.  We do not
 decide whether a defendant may assert the interests of victims under these
 circumstances because in this case intervenor does not object to redacting
 names and identifying information of victims and other third parties if the
 evaluation is disclosed.  Nevertheless, we note that the privacy interests
 of innocent third parties may well present a compelling interest sufficient
 to outweigh a qualified First Amendment right of access under certain
 circumstances.  See In re New York Times Co., 828 F.2d 110, 116 (2d Cir.
 1987) (privacy interests of innocent third parties outweigh First Amendment
 right of access, requiring redaction of names or portions of documents); cf.
 Press-Enterprise I, 464 U.S.  at 511-12 (privacy interest of prospective
 juror may be compelling enough to warrant limited closure when
 interrogation touches on deeply personal matters).
      Second, defendant claims that his privacy interest outweighs
 intervenor's First Amendment right of access to the evaluation.  The trial
 court agreed, adding that the therapeutic value of the evaluation would be
 thwarted if the document were revealed to the press and the public.
 Intervenor points out, however, that the evaluation was not conducted for
 therapeutic purposes and that defendant's privacy interest regarding the
 evaluation was sufficiently protected because he reviewed it before choosing
 to present it to the court.  We agree.  Once defendant submitted the
 document to the court, the qualified First Amendment right of access
 attached.
      Third, defendant argues, and the trial court concluded, that disclosure
 would have a chilling effect on the willingness of defendants, victims, and
 affected families to participate in psychosexual evaluations.  We first note
 that the trial court made no findings to support this conclusion.  Although
 some courts have found that disclosure of presentence reports to third
 parties may adversely affect the court's ability to obtain information, see
 Fennell & Hall, Due Process at Sentencing: An Empirical and Legal Analysis
 of the Disclosure of Presentence Reports in Federal Courts, 93 Harv. L. Rev.
 1613, 1684 (1980) and cases cited therein, the assumptions on which this
 assertion is based are not present in the instant case.  Here, defendant
 hired the expert to conduct the evaluation, and presented it to the court
 in an effort to persuade it to accept the plea agreement and suspend most of
 his sentence.  Speculation that defendant would be reluctant to participate
 in a psychosexual evaluation to support his case for a suspended sentence is
 insufficient to outweigh a qualified constitutional right of access to
 documents filed in a sentencing proceeding.  Moreover, the threat that
 disclosure of the report might have a chilling effect on third persons is
 dispelled in this case because intervenor has agreed that names and
 identifying information may be redacted. (FN2)
      Although the privacy rights of victims may be sufficient to require
 redaction of portions of the document, defendant has presented no compelling
 interest that could support wholesale closure as ordered by the trial court.
 Moreover, the court did not make specific factual findings showing that, in
 the absence of closure, there would be a substantial probability of harm to
 a compelling interest.  See In re New York Times, 828 F.2d  at 116 (remanded
 to trial court for more specific findings to show whether sealing in whole
 or part was necessary to serve higher values).  Nor did the court make the
 necessary findings to demonstrate that no alternative to closure could
 adequately protect the privacy interests of victims and other third parties.
 See Press-Enterprise II, 478 U.S.  at 13.
      Vacated and remanded to district court for more specific findings.  If
 the findings support redaction of the names and other identifying informa-
 tion of victims and third parties, the court shall redact this information
 before disclosing the evaluation.  If the court is unable to protect a
 compelling privacy interest of victims and third persons by redacting
 portions of the evaluation, the court shall make specific findings
 indicating why this alternative to wholesale closure is not feasible.

                                    FOR THE COURT:


                                    ______________________________
                                    Associate Justice



FN1.    For the same reasons, we reject the arguments of amicus, the Vermont
 Psychological Association (VPA), which claims that if confidentiality is
 not assured, psychologists will be unable to conduct psychological
 evaluations for the purpose of sentencing and that disclosure would pose
 serious ethical problems for psychologists.  We are not persuaded by VPA's
 arguments in the context of this case.  Here, defendant reviewed an
 evaluation prepared by his expert and chose to submit it to the court.  This
 situation presents no ethical problem for the psychologist, who has
 disclosed nothing to a third party.

FN2.    The trial court recognized other compelling interests that we do not
 address because they were not addressed by the parties on appeal.