State v. Schaefer
Annotate this Case
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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
Nos. 84-484 & 84-515
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Gary Lee Schaefer March Term, 1990
Herald Association, et al, Intervenor
George F. Ellison, J.
Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington,
for intervenors-appellants
Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate
Defender, Montpelier, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, (FN1) Dooley and Morse, JJ.
DOOLEY, J. Intervenor-appellants appeal the district court's orders
sealing the affidavits of probable cause, closing partially a hearing on a
motion to suppress and further prohibiting all law enforcement officers and
all attorneys associated with defendant's case from making any public
statements about this criminal case. Intervenors are the publishers of
daily newspapers in Vermont. They argue that the orders violate the First
Amendment rights of the public to obtain information about the operation of
the courts. We agree and reverse.
Defendant Gary Schaefer was arraigned on the charge of second-degree
murder on May 10, 1984. He pled not guilty, and upon the request of his
attorney, the court issued an order sealing the affidavit of probable cause
to preserve defendant's state and federal constitutional rights. The
court's order also prohibited all law enforcement officers and all attorneys
associated with the case from making any statements "either at public
meetings or proceedings intended for public reporting or dissemination"
concerning the merits of the case, the evidence in the case, or any other
matters that were not of record in the court.
On May 22, 1984, appellants filed a "Motion to Intervene" and a "Motion
for Relief from Order," seeking access to the affidavit of probable cause.
The trial court denied the motions without prejudice because appellants
lacked any legal status within the pending criminal prosecution and because
the motion to intervene was not supported by a memorandum of law as required
by V.R.Cr.P. 47(a). Appellants then filed a motion for reconsideration, and
an evidentiary hearing was held on this motion. The witnesses consisted of
editors of appellant newspapers. Also admitted were newspaper stories about
another murder prosecution against defendant for which he was convicted in
December of 1983. The court refused to admit surveys taken by reporters for
appellants based on random interviews of newspaper readers. In the
interview, the reporter asked each person to answer the question: "Who is
Gary Schaefer?"
Based on the evidence, the court made findings and denied the motion to
reconsider. The court found that reporters for appellants had no famil-
iarity with the standards established by the American Bar Association which
prohibit the dissemination of pretrial criminal information if such release
would pose a clear and present danger to the fairness of the trial. The
newspapers themselves have no standards or policy concerning what to print
from pretrial proceedings except that they will not print libelous news.
Essentially, the court found, the newspapers' "guidelines are to go out and
cover the story and whatever information is found becomes fair to report,"
including the prior criminal record of the accused, the content of a
defendant's confession or admissions and the content of a defendant's
testimony during a suppression hearing. Furthermore, appellants have
published such information in the past and would not withhold such inform-
ation from publication if requested to do so. The court specifically noted
that one of the newspapers had published defendant's confession in the prior
murder case "before trial of the case and even before the defendant was
charged" and all of the newspapers, and the local television station,
reported on the confession despite the pendency of a motion to suppress it.
The court further found that these newspapers have wide-spread circulation
and readership throughout Vermont, and, as a result, "[i]t is fair to say
such a case as this would be almost totally published throughout the entire
State."
Based upon these findings, the trial court concluded that "Defendant
has demonstrated by clear necessity the need for the affidavit to remain
sealed and that no reasonable alternatives exist to protect his right to a
fair trial and an untainted jury pool." (FN2) The court relied on its finding
that appellants would print the content of the affidavits of probable cause
regardless of the effect of that publicity on defendant's right to a fair
trial and that there would be "wide spread, general publicity of the
contents of the Affidavits" right up to the date of the trial. The court
rejected the alternatives concluding that a continuance was not possible,
that change of venue would be of "little practical benefit" in the face of
the statewide publicity and that no amount of voir dire would be effective
where a juror knew of a suppressed statement by defendant.
As to the restrictive order, the court found that defendant had shown a
"clear necessity" for such an order in light of the publicity. The court
upheld the restrictive order, concluding it justified by the same facts that
justified the sealing order.
Following the ruling on the motion for reconsideration, the trial court
considered a motion to suppress statements made by defendant to the police.
Defendant sought closure of the hearing on the motion, and appellants
objected. Based on its findings in connection with the sealing order, the
court ruled that closure was needed as to "questions and answers of an
interrogatory interview with the Defendant." The court's ruling indicated
that the content of that interview was set forth in the affidavit of
probable cause so that partial closure necessarily followed from the sealing
of the affidavit. The court added that a change of venue would require jury
selection from persons that "don't know anything about current events" and
that intensive voir dire would not work because potential jurors are not
always "totally frank about what they know about a case" and because they
may recall what they read only after the start of the trial.
Following the hearing, the court granted the motion to suppress. The
prosecutor dismissed the case in April of 1985.
Appellants make four arguments on appeal: (1) the proper standard for
any restriction on qualified First Amendment access rights is a demonstra-
tion of a substantial probability of irreparable damage to defendant's Sixth
Amendment rights; (2) the court's closure and sealing orders do not meet
this standard because they are based upon presumed damage and not actual
damage of defendant's rights; (3) the court inadequately considered
reasonable alternatives to closure and sealing; and (4) the restriction on
extra-judicial statements (the "gag order") is unjustified by the record and
is unconstitutionally overbroad.
Although no party has contested the issue, we first look briefly at our
jurisdiction in this case. We have held that the media may directly
intervene in a criminal proceeding for purposes of seeking access to
proceedings or papers. State v. Tallman, 148 Vt. 465, 468, 537 A.2d 422,
424 (1987). Once representatives of the media intervene, as they have here,
they have standing to appeal to this Court from orders denying them access
to papers or proceedings.
When the issues reach this Court, however, there is rarely a live
controversy. This criminal case has been dismissed, and the reasons for
sealing the papers or closing the proceedings have long passed.
Nevertheless, we have held in a similar case that the circumstances fit an
exception to the mootness doctrine for issues capable of repetition yet
evading review. Id., 148 Vt. at 469, 537 A.2d at 424-25. We agree that
this case also fits the exception to the mootness doctrine although we
caution that this is not a holding that all media access cases so fit. As
discussed below, this appeal raises general questions about the proper
standard to apply in balancing the right of access to criminal proceedings
and documents against the Sixth Amendment right of a criminal defendant to a
fair trial. As the general questions are answered, however, these cases
will become more fact specific, and the exact questions are less likely to
recur in the future. Further, the lengthy delay between the trial court
ruling and the action in this Court means that the trial courts often do not
have the benefit of the latest decisions in this Court although there is no
reason to believe that they would fail to follow them. See Johnson
Newspaper Corp. v. Morton, 862 F.2d 25, 30 (2d Cir. 1988). These
considerations may warrant a conclusion that particular press access cases
are moot when presented to this Court.
An understanding of appellants' first argument requires a revisiting of
our two decisions in the area of press access to judicial proceedings and
records in criminal cases, State v. Tallman, 148 Vt. 465, 537 A.2d 422
(1987) and Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156 (1988). A case
similar to this one, Tallman involved access to an affidavit of probable
cause and a pretrial suppression hearing. The significance of Tallman is
very much in issue, however, because only a four-member Court rendered the
decision and it split 2-to-2 on the major issues within it. The decision in
State v. Tallman is really two opinions, agreeing on the result, but
disagreeing on parts of the requisite analysis.
The opinions do agree on a general policy statement:
[W]e start with the presumption that pretrial
proceedings and documents are open to the public,
closure being the exception rather than the rule. This
is because "[o]penness . . . enhances both the basic
fairness of the criminal trial and the appearance of
fairness so essential to public confidence in the
system."
Tallman, 148 Vt. at 474, 537 A.2d at 427 (quoting Press-Enterprise Co. v.
Superior Court of California, 464 U.S. 501, 508 (1984) (Press-Enterprise I))
(citation omitted). Hence, both opinions recognize that the press and
public have a qualified right of access to pretrial suppression hearings and
affidavits of probable cause, which must be balanced with defendant's Sixth
Amendment right to a fair trial. Having recognized this qualified right of
access, the Tallman Court split on the proper standard by which to evaluate
sealing and closure orders. The opinion for the Court concluded that the
proper standard should be derived from Press-Enterprise Co. v. Superior
Court of California, 478 U.S. 1 (1986) (Press-Enterprise II). That standard
is phrased as follows:
If the interest asserted is the right of the accused to
a fair trial, the preliminary hearing shall be closed
[or document sealed] only if specific findings are made
demonstrating that, first, there is a substantial
probability that the defendant's right to a fair trial
will be prejudiced by publicity that closure would
prevent and, second, reasonable alternatives to closure
cannot adequately protect the defendant's fair trial
rights.
Tallman, 148 Vt. at 474, 537 A.2d at 428 (quoting Press-Enterprise II, 478
U.S. at 14). The concurring opinion of Chief Justice Allen disagreed that
the Press-Enterprise II standard was appropriate with respect to the closure
of the suppression hearing and apparently with respect to the sealing of
the probable cause affidavit. In his view, the difference lies in the
nature of the suppression hearing and the probable cause affidavit in the
criminal justice system and the risk of harm to the defendant's fair trial
rights. He concluded that a defendant seeking closure must only demonstrate
that the right to a fair trial would likely be prejudiced by publicity
generated by the suppression hearing. Id., 148 Vt. at 476, 537 A.2d at 429.
(Allen, C.J., concurring). He agreed with the opinion of the Court that the
trial court must draw its order narrowly to preserve the competing
interests, id. 148 Vt. at 478, 537 A.2d at 430 (Allen, C.J., concurring),
and agreed with the conclusion that the trial court failed to do so in the
Tallman case.
Greenwood involved a challenge to the trial court's allowance of press
access to an affidavit of probable cause. The defendant requested that
this Court limit its Tallman holding that the press has a qualified First
Amendment right of access to the affidavit, drawing analogy to the secrecy
of grand jury action where the case is started by indictment. We declined
to modify the Tallman holding. 149 Vt. at 445, 544 A.2d at 1158. Because
of the limited issue before us, we did not have to reach the standard for
resolving the competing interests.
The first issue raised here seeks to define the proper standard that
must be met before a court can seal an affidavit of probable cause or close
a hearing where the contents of that affidavit will be disclosed. This is
the issue that split the four-Justice Court in Tallman. In analyzing this
question, we must be explicit on the source of the public's access right to
the probable cause affidavit. The Court in Tallman relied upon the common
law right of access to court documents set forth in Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978), although it later referred
to a First Amendment right of access. Tallman, 148 Vt. at 472, 473, 537 A.2d at 426-27. The decision by the Chief Justice in Greenwood referred to
the "'constitutional and common law right of access to court records and
proceedings.'" 149 Vt. at 442, 544 A.2d at 1157 (quoting State v. Tallman,
148 Vt. at 472, 537 A.2d at 427). Most courts that have confronted the
issue of access to judicial documents in criminal cases have held that the
First Amendment creates a qualified right of access to most pretrial
documents as well as to pretrial court proceedings. See Globe Newspaper Co.
v. Pokaski, 868 F.2d 497, 502 (1st Cir. 1989); United States v. Suarez, 880 F.2d 626, 631 (2d Cir. 1989); United States v. Smith, 776 F.2d 1104, 1112
(3d Cir. 1985); In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.
1986); United States v. Peters, 754 F.2d 753, 763 (7th Cir. 1985); In re
Search Warrant for Secretarial Area - Gunn, 855 F.2d 569, 573 (8th Cir.
1988); Seattle Times Co. v. U.S. Dist. Ct. for W.D. of Wash., 845 F.2d 1513,
1517 (9th Cir. 1988). We read Tallman and Greenwood as adopting that
holding at least with respect to affidavits of probable cause.
We have carefully examined the numerous opinions that have been handed
down by state and federal courts since Tallman. Every court that has
recognized a qualified First Amendment right of access to judicial records
has held that sealing orders are valid only on a showing of "substantial
probability that the defendant's right to a fair trial will be prejudiced by
publicity" as required by Press-Enterprise II, 478 U.S. at 14 and the
opinion for the Court in Tallman, 148 Vt. at 474, 537 A.2d at 428. See,
e.g., In re State-Record Co., Inc., 917 F.2d 124, 128 (4th Cir. 1990);
Oregonian Pub. Co. v. United States Dist. Ct., 920 F.2d 1462, 1466 (9th Cir.
1990); Russell v. Miami Herald Pub. Co., 570 So. 2d 979, 982 (Fla. App.
1990). Similarly, every court that has found a qualified First Amendment
right to attend a particular pre-trial event has also found that closure of
the event to the public can be done only where the Press-Enterprise II
standard has been met. See, e.g., Associated Press v. Bell, 70 N.Y.2d 32,
38, 510 N.E.2d 313, 316-17 (1987); State ex rel. The Repository v. Unger,
28 Ohio St. 3d 418, 422, 504 N.E.2d 37, 40 (1986). (FN3)
Once we clearly ground the public right of access in the First
Amendment, we find no relevant distinction between this case and Press-
Enterprise II for purposes of establishing a standard for sealing or
closure. The threat to defendant's fair trial right is identical whether
probable cause is determined based on an affidavit or based on an
evidentiary hearing. We are persuaded by both this reasoning and the
unanimity of authority from other courts that the Press-Enterprise II
standard applies to the sealing of the probable cause affidavit and closing
of the suppression hearing in this case.
Establishing the proper standard does not decide this case. There is
no relevant difference between the standard used by the trial court and that
set forth in the Court's opinion in Tallman. Although Tallman had not been
decided when the trial court acted here, it clearly was aware that it had to
find an overriding defendant interest and prejudice to that interest to seal
the affidavit. Its "clear necessity" standard, although not phrased in the
language of Tallman and Press-Enterprise II, makes clear that it found the
necessary prejudice to warrant sealing of the affidavit. It would be an
exercise of form over substance to require the trial court to reevaluate its
conclusion in light of the specific Tallman standard.
Thus, we must reach appellants' next argument that the sealing and
closure orders cannot be upheld under the Tallman balancing standard. We
start with appellants' argument that defendant has failed to show a
substantial probability of prejudice as a result of public access to the
affidavit of probable cause.
If sealing the affidavit and closing the pretrial hearing were the only
method available to protect defendant's fair trial right from the effects of
publicity, we would probably affirm the sealing and closure orders in this
case. The probable cause affidavit contains information -- that is,
admissions by defendant to the police -- that defendant sought to suppress.
If the information were suppressed, it would be critical that potential
jurors not know of the information. See Associated Press v. Bell, 70 N.Y.2d
at 38, 510 N.E.2d at 316. There is no doubt that appellants would publish
this information. There has been widespread publication of the fact that
defendant has been convicted of murder of a young woman and has admitted to
having committed a second murder of a young woman before this prosecution
was commenced. The events arose in a relatively small town. See Newspapers
of New England v. Clerk-Magistrate, 403 Mass. 628, 633, 531 N.E.2d 1261,
1264 (1988), cert. denied, 490 U.S. 1066 (1989) (fact that murder occurred
in small rural community significant factor in support of closure).
There are also countervailing factors. The probable cause affidavit is
filed at the very beginning of a case. It is likely to be many months
before the case comes to trial. See Seattle Times v. United States Dist.
Ct. for W.D. of Wash., 845 F.2d at 1518 (9th Cir. 1988) (two months would
elapse before trial). The press coverage up to the time of the hearing had
been factual and not inflammatory. See id., 845 F.2d at 1517 (pervasive
pretrial publicity is not conclusive; publicity must create pattern of deep
and bitter prejudice in community). However, the press regularly reported
defendant's earlier conviction and the events surrounding it. Defendant's
right to a fair trial would be threatened by jurors' knowledge of his
history. Thus, the added information contained in the probable cause
affidavit may not be significant since any potential juror who read the
earlier stories anyway could not sit. While the trial court was offered
evidence to show the readership of the newspapers printed by appellant,
there was a dearth of evidence on whether potential jurors who were unaware
of the case could be found in the community.
We conclude, however, that the seal and closure orders run afoul of the
second prong of the Tallman standard -- that is, that such orders be issued
only if alternatives that would adequately protect the defendant's rights be
unavailable. Tallman, 148 Vt. at 474, 537 A.2d at 428. Appellants argue
that the trial court failed to weigh properly the alternatives that do
exist.
The second prong of the Tallman test is derived from Press-Enterprise
II. The Court in Press-Enterprise II stated:
But this risk of prejudice does not automatically
justify refusing public access to hearings on every
motion to suppress. Through voir dire, cumbersome as it
is in some circumstances, a court can identify those
jurors whose prior knowledge of the case would disable
them from rendering an impartial verdict. And even if
closure were justified for the hearings on a motion to
suppress, closure of an entire 41-day proceeding would
rarely be warranted. The first amendment right of
access cannot be overcome by the conclusory assertion
that publicity might deprive the defendant of that
right. And any limitation must be 'narrowly tailored to
serve that interest.'
478 U.S. at 15, quoting Press-Enterprise I, 464 U.A. at 510. The
alternatives that needed to be considered here included partial disclosure,
voir dire and change of venue. See Herald Ass'n v. Ellison, 138 Vt. 529,
534, 419 A.2d 323, 326 (1980).
We note at the outset that although the court's primary concern was
with the part of the affidavit that disclosed that defendant had made a
statement that might be suppressed, the court considered the sealing motion
as an all or nothing proposition. Pretrial publicity per se will not
interfere with defendant's fair trial right. Rather, interference comes
from publicity that may inflame and prejudice the whole community and
prevent the impanelling of an unbiased jury. See Seattle Times v. United
States Dist. Ct. for W.D. Wash., 845 F.2d at 1517. Obviously, not all of
the information in the affidavit could have such an effect. The court,
then, if it orders sealing at all, must consider first redacting the
portions of the affidavit that create the substantial probability of
prejudice to defendant's fair trial right and releasing the remainder. See
In re State Record Co., 917 F.2d 124, 129 (4th Cir. 1990). A court
rejecting the appropriateness of redaction must make "specific reasons and
findings on the record," id., a step not taken by the trial court here.
We also note that the court ordered a permanent sealing of the
probable cause affidavit. As a result, the press still has not gained
access to the affidavit, though the State dismissed this case years ago. A
sealing order should not extend beyond the time necessary to protect
defendant's fair trial rights. See Herald Ass'n v. Ellison, 138 Vt. at 534-
35, 419 A.2d at 326-27 (order that extends beyond time necessary to protect
defendant's fair trial right is void).
We cannot conclude, however, that either redaction or a time limit
would have been sufficient to protect the public access right in this case.
While the trial court considered the alternatives of voir dire and change of
venue, it dismissed them summarily without serious consideration. We
believe that the alternatives were not properly evaluated under Press-
Enterprise II.
As a basic principle, voir dire is the normal and preferred method of
combating any effects of pretrial publicity. In re Charlotte Observer, 882 F.2d 850, 855 (4th Cir. 1989). As the United States Court of Appeals for
the Third Circuit noted:
Since the inception of our criminal justice system,
courts have acknowledged the utility of skillfully
conducted voir dire as a means of ascertaining a
prospective juror's impartiality. . . . "[T]esting" by
voir dire remains a preferred and effective means of
determining a juror's impartiality and assuring the
accused of a fair trial.
United States v. Martin, 746 F.2d 964, 973 (3d Cir. 1984). Of course,
publicity about a case may be so pervasive and damaging that voir dire is
ineffective to combat it.
We cannot conclude that the potential publicity in this case,
especially if combined with a change of venue, would rise to the level
where voir dire would be ineffective. Although we share the trial court's
concern that potential jurors who have read about defendant's confession
would have difficulty being open-minded, there is no evidence to show that a
jury free of such persons could not be drawn in the district in which the
case is heard, and the trial court made no finding on this issue. (FN4) We do
not believe that the fact that the case is covered by newspapers with
statewide circulation means that there will be widespread knowledge of the
facts reported in all areas of the state or even in the community where the
crime occurred. While the evidence of publicity here was greater than what
we categorically rejected as insufficient in Greenwood v. Wolchik, 149 Vt.
at 445, 544 A.2d at 1158-59 (evidence consisted of two front-page stories in
the local newspaper and a showing that this newspaper reached half the homes
in the county), it is not sufficient to show that voir dire would be
ineffective. Ironically, the only direct evidence of community knowledge of
the case -- that is, the survey conducted by the newspapers -- was rejected
by the trial court.
Nor can we accept the additional reasons proffered by the trial court
to reject reliance on voir dire -- that jurors would not remember the
newspaper accounts until after they were impanelled and that potential
jurors are not always candid. Such reasoning amounts to a total rejection
of the use of voir dire to avoid impanelling prejudiced jurors. We believe
that skillful voir dire can overcome these problems.
We also believe that the trial court erred in dismissing the effect of
a change of venue in this case. The trial court had granted a change of
venue in defendant's earlier murder trial, and the need for one was probably
greater in this case. In evaluating the sealing decision, the court needed
to consider whether a change of venue was otherwise likely or should be
ordered to respond to the potential prejudice from disclosure of the
information in the probable cause affidavit. The court did so only
perfunctorily, concluding that since the publicity was state-wide, the same
probability of prejudice existed throughout the state. As our discussion
above indicates, we cannot equate publicity with wide-spread knowledge among
potential jurors. It may be in most cases that persons remote from the
scene are less likely to read about a crime and that the stories will be
less obvious -- for example, they may be shorter, have smaller captions
and/or be on pages less often read.
Having concluded that the sealing and closure orders cannot be upheld
in view of the findings and record, we turn to the order that the lawyers
and law enforcement officers not comment on the merits of the case or make
statements "as to any evidence which has been secured in connection with
this matter or any other matters that are not of record in the court."
Defendant attacks this order under standards similar to those applicable to
the sealing and closure orders.
We recognize in appropriate cases an order similar to that present here
may be necessary to ensure that information contained in sealed documents or
closed hearings is not leaked to the press. We also recognize that
attorneys and those who work for them are restricted by ethical rules from
making extrajudicial statements. See Code of Professional Responsibility DR
7-107; Florida Freedom Newspapers v. McCrary, 520 So. 2d 32, 35 (Fla. 1988).
In view of the ethical restraints and the intrusion into the rights of the
parties and their counsel, we do not believe that a non-disclosure order of
this type is justified without a finding that, absent the order, one or more
of the persons covered would make an improper disclosure. In re New York
Times Co., 878 F.2d 67, 68 (2d Cir. 1989). Further, the order must be
narrowly tailored to cover only the improper disclosure that would occur in
the absence of the order. See New York Times v. Rothwax, 143 A.D.2d 592,
592-93, 533 N.Y.S.2d 73, 74 (1988); National Broadcasting Co. v. Court of
Common Pleas, 52 Ohio St. 3d 104, 112, 556 N.E.2d 1120, 1125 (1990). There
was no finding of necessity here, and the order was overbroad. Even if we
had not reversed the sealing order, we cannot affirm the order prohibiting
statements about evidence in the case or other matters not of record.
Ordinarily, we would remand to enable the trial court to evaluate
defendant's motion under the standards we have announced herein. A remand
is unnecessary here because the passage of time has made any sealing or
closure orders inappropriate.
Reversed.
FOR THE COURT:
Associate Justice
FN1. Justice Gibson sat for oral argument but did not participate in this
decision.
FN2. The court also concluded that the affidavit of probable cause was
not a public record, and appellants had no right to have it disclosed. This
basis for sealing affidavits of probable cause was rejected in State v.
Tallman, 148 Vt. 465, 472, 537 A.2d 422, 426 (1987) and, therefore, has not
been considered further in this opinion.
FN3. The concurrence cites two states where it asserts the courts have
adopted different standards. The New Jersey case, State v. Halsey, 526 A.2d 1165, 1167 (N.J. Super. 1987), adopts no standard, holding rather that the
result is the same whichever standard is used. The first Utah case, Kearns-
Tribune Corp. v. Lewis, 685 P.2d 515 (Utah 1984) precedes Press-Enterprise
II and adopts a standard for public access inconsistent with Press-
Enterprise II. Since both it and Press-Enterprise II involve the same issue
of access to a preliminary hearing, its holding on the standard question can
not be taken to have survived Press-Enterprise II. The standard question
was not in issue in the second Utah case, Society of Professional
Journalists v. Bullock, 743 P.2d 1166 (Utah 1987); the issue was whether
there was a right of access to a competency hearing under any circumstances.
The Court simply applied the holding of the first case to a different
situation with no apparent awareness that the intervening decision in Press-
Enterprise II made part of the prior holding erroneous. Indeed, Press-
Enterprise II is never cited in the opinion.
FN4. In view of our disposition, we do not need to address whether the
trial court can award defendant more peremptory challenges than the six
provided in 12 V.S.A. { 1941 and V.R.Cr.P. 24(c)(3) in order to ensure a
fair jury is impanelled. Nor need we determine whether a "struck jury"
system might be implemented in an appropriate case. See State v. Halsey,
218 N.J. Super. 149, 162-64, 526 A.2d 1165, 1171-72 (1987).
------------------------------------------------------------------------------
Concurring
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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
Nos. 84-484 & 84-515
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Gary Lee Schaefer March Term, 1990
Herald Association, et al, Intervenor
George F. Ellison, J.
Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington,
for intervenors-appellants
Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate
Defender, Montpelier, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, (FN1) Dooley and Morse, JJ.
ALLEN, C.J., concurring in the result. I do not agree with the
majority's assertion that the unanimity of authority and its reasoning since
Press-Enterprise II was decided should be persuasive on the issue of the
correct standard for sealing or closure. The reasoning in the first case
cited in support of this proposition, In re State-Record Co., Inc., 917 F.2d 124, 128 (4th Cir. 1990), simply consists of the statement that the issue
had been resolved in an earlier Fourth Circuit case. State-Record Co., Inc.
also inexplicably (FN2) stated that the standard for the issuance of orders
prohibiting potential witnesses, parties and attorneys from discussing a
pending case with the media required a showing of no more than a reasonable
likelihood of prejudice for their issuance. No suggestion is given as to
why the standard for the issuance of a "gag" order should differ from the
issuance of a closure order. The case upon which In re State-Record Co.,
Inc. relies is In re Charlotte Observer, 882 F.2d 850 (4th Cir. 1989). The
"reasoning" in that case was a statement that the presumption of openness
may be overcome by finding that there is a substantial probability that
defendant's right to a fair trial will be prejudiced, citing Press-
Enterprise II. Oregonian Pub. Co. v. United States Dist. Ct., 920 F.2d 1462 (9th Cir. 1990) is likewise poor authority for the proposition for
which it is cited. There, the district judge, at the defendant's request,
sealed a plea agreement concluding that the safety of the defendant and his
family would be placed in jeopardy if its contents were disclosed. While
the opinion states that the Press-Enterprise II requirements must be met
before documents may be closed to the public, the sealing had nothing to do
with the defendant's right to a fair trial under the Sixth Amendment. The
holding in Russell v. Miami Herald Pub. Co., 570 So. 2d 979 (Fla. App. 2
Dist. 1990) suffers from the same infirmity. The issue there was the
relevant inquiry for a court in determining whether a prior order expunging
court records should be vacated. The court concluded that the Press-
Enterprise II standards should be followed, but again the defendant's right
to a fair trial was not at issue. 570 So. 2d at 983. State ex rel. The
Repository v. Unger, 28 Ohio St. 3d 418, 504 N.E.2d 37 (1986), cited for
the proposition "that closure to the public can be done only where the
Press-Enterprise II standard has been met," simply does not say this. This
leaves Associated Press v. Bell, 70 N.Y.2d 32, 39, 510 N.E.2d 313, 317
(1986) where the Court of Appeals of New York did state that the defendant
must demonstrate a substantial probability of prejudice on the authority of
Press-Enterprise II.
The Supreme Court of Utah has adhered to the lesser standard for
closure. In Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 524 (Utah 1984),
the court extended the openness of trials to preliminary hearings, but held
that preliminary hearings in criminal cases may be closed when openness
presents "a realistic likelihood of prejudice" to a defendant's right to a
fair trial. The preliminary hearings in this state are used to determine if
there is "probable cause to believe that the crime charged has been
committed and that the defendant committed it." Id. at 520. In Society of
Professional Journalists v. Bullock, 743 P.2d 1166, 1177 (Utah 1987), the
court continued to follow this standard when it extended it to pretrial
competency proceedings in criminal cases. "There is no apparent reason to
distinguish between the factors relevant to closure of a preliminary hearing
and closure of a competency proceeding; therefore, we conclude that the
steps to be followed by a trial court in either instance are [those] set
forth in Kearns-Tribune." Id. at 1178.
The only other court which has expressly addressed the issue dividing
this Court is the Superior Court of New Jersey which stated that the right
to an open trial prevails unless a defendant can "demonstrate that there is
a realistic likelihood that his right to an impartial jury will be
threatened from adverse publicity." State v. Halsey, 526 A.2d 1165, 1167
(N.J. Super. 1987). It then observed that this test might arguably be no
longer viable under Press-Enterprise II. Id.
It might be said that we are quarreling over semantics. I believe
otherwise. The prejudice that may result from disclosure of matters that
are ultimately suppressed is well set forth in Westchester Rockland
Newspapers v. Leggett, 48 N.Y.S.2d 430, 439, 399 N.E.2d 518, 523 (1979):
If these hearings were open to the public and the
press in a well-publicized case, it is most likely that
the substance of the evidence would be disclosed to the
community from which the jurors would be drawn, even
though the court may ultimately rule that the evidence
should not be submitted to the jury at trial. This
would not only destroy the purpose for which the hearing
was held, but would, perversely, have the very opposite
effect of that intended and desired. Instead of
shielding the jurors from evidence they should not hear,
the public airing at the pretrial suppression hearing
would serve to broadcast the evidence to most, if not
all potential jurors.
I find nothing in the cases cited in the majority opinion that persuade
me to abandon the position I took in Tallman. The holding in Press-
Enterprise II can be read, and should be read, to be limited to preliminary
hearings as they are conducted in California. The danger from the stricter
standard was well expressed by Justice Powell in his concurring opinion in
Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 399-400 (19__), where, in
response to the suggestion in Justice Blackmun's opinion advocating the
substantial probability requirement, he stated:
It is difficult to imagine a case where closure could
be ordered appropriately under this standard. A rule of
such inflexibility could prejudice defendant's rights
and disserve society's interest in the fair and prompt
disposition of criminal trials as a result of pretrial
publicity, defendants could be convicted after less than
the meticulously fair trial that the Constitution
demands. . . . The question for the trial court,
therefore, in considering a motion to close a pretrial
suppression hearing is whether a fair trial for the
defendant is likely to be jeopardized by publicity if
members of the press and public are present and free to
report prejudiced evidence that will not be presented to
the jury.
In Waller v. Georgia, 467 U.S. 39, 48 (1984), the United States Supreme
Court clearly stated that the party seeking closure of a suppression hearing
must advance an overriding interest that is likely to be prejudiced. Press-
Enterprise II did not expressly overrule Waller and, until it does so, this
Court should adhere to a standard that recognizes the existence of the right
to a fair trial under the Sixth Amendment. (FN3) The standard for closure
adopted by the majority imposes too severe a burden on a defendant seeking
closure. It is difficult to conceive of a fact pattern where sealing or
closure could ever be granted under the substantial probability standard.
I concur in the result because I do not believe that the trial court
adequately explored the alternatives to closure in this case. But I also
believe that the majority opinion overstates the effectiveness of the
alternatives. Vermont is a small state with a small population. Major
crimes are covered in all parts of the State by a relatively small number of
newspapers, radio and television stations. The damage to the fair trial
right can be devastating where the entire populace is exposed to the
contents of a confession or evidence later suppressed. I do not believe, as
the majority seems to suggest, that change of venue or effective voir dire
can eliminate the potential for prejudice in every case. Change of venue
suffers from the drawbacks set forth in Herald Association, Inc. v. Ellison,
138 Vt. 529, 534, 419 A.2d 323, ___ (1990). (FN4) The majority's suggestion that
skillful cross-examination can always expose the juror who is not candid
seems to contradict the observation by the author of the opinion in In re
Douglas Nash, slip op. at ___ (June 21, 1991), Dooley, J., dissenting ("No
amount of questioning of the juror alone would have shown the true facts.").
The effectiveness of voir dire as a curative device for adverse
publicity has been further undermined by the U.S. Supreme Court in Mu'Min v.
Virginia, 59 L.W. 4519 (1991), where the court concluded that neither the
Sixth nor Fourteenth Amendments require interrogation of a prospective juror
with respect to what a juror has read or heard about the case. Content
questions are not required. All that seems to be required is the acknow-
ledgment by the juror that information has been acquired and the promise
that the information would not affect the juror's impartiality. In this
case there would be no constitutional prohibition against allowing a juror
to sit who had knowledge of the admissions and previous convictions, as
long as the promise was made to keep an open mind and wait until the entire
case was presented before reaching a final opinion. The assurance offered
by such a promise is dampened by the observation in Irwin v. Dowd, 366 U.S. 717, 728 (1961): "No doubt each juror was sincere when he said he would be
fair and impartial to petitioner, but the psychological impact requiring
such a declaration before one's fellows is often its father."
Our responsibility is to assure the public's First Amendment right of
access while protecting the defendant's Sixth Amendment right to a fair
trial. We do not carry out this responsibility by abrogating one right in
favor of the other. The imposition of the substantial probability of
prejudice standard seriously erodes the fair trial right.
Chief Justice
FN1. Justice Gibson sat for oral argument but did not participate in this
decision.
FN2. I say inexplicably because these orders, characterized as "gag"
orders by the media, are often classic examples of prior restraint and are
deemed to be "one of the most extraordinary remedies known to our
jurisprudence." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976).
FN3. Justice Stevens in his dissent concludes that Press-Enterprise II
does reverse earlier holdings that a "reasonable probability of prejudice"
is enough to overcome the First Amendment right of access to a preliminary
proceeding. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 17 (1985)
(Stevens, J., dissenting).
FN4. "Change of venue, for example, is frequently referred to as a ready
expedient for avoiding prejudicial publicity problems. However, it is a
remedy which should not lightly be resorted to. Quite apart from the added
expense to the state and the taxpayers, and the burden and inconvenience to
trial participants which it causes, a venue change erodes, at least in
spirit, the defendant's right to trial "by an impartial jury of the
country." Vt. Const. ch. I, art. 10. That provision is some recognition of
a common law right to be tried locally, and has legislative implementation
in our venue statutes." (Citations omitted.)
------------------------------------------------------------------------------
Dissenting
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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
Nos. 84-484 and 84-515
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Gary Lee Schaefer March Term, 1990
Herald Association, et al., Intervenor
George F. Ellison, J.
Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington,
for intervenors-appellants
Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate
Defender, Montpelier, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, (FN1) Dooley and Morse, JJ.
PECK, J., dissenting. In considering the merits of the majority
opinion in this case, I was reminded of a brief exchange, contained in a
dialogue between Hamlet and that meddlesome old fussbudget Polonius in
Shakespeare's play. (FN2) Finding the Prince reading a book, the old man
inquires, "What do you read, my lord?" To which Hamlet responds, "Words,
words, words."
Notwithstanding the legalese which characterizes the majority opinion,(FN3)
it is completely devoid of even a pretension of analysis, to say nothing of
a genuine balancing. Rather it adopts a sort of "monkey see, monkey do"
approach, relying, inter alia, on broad conclusory and unsupported state-
ments contained in opinions from other jurisdictions, and the purest of
speculation without anything at all to raise it above the level of
unadulterated guessing as to what would or would not happen in certain
circumstances.
The majority acknowledges the need to balance "the right of access to
criminal proceedings [under the First Amendment] against the Sixth Amendment
right of a criminal defendant to a fair trial." It is clear enough, how-
ever, that this acknowledgment is the only recognition of balancing forth-
coming. The opinion from start to finish bears not the slightest resem-
blance to any fair concept of balancing.
The media interests here so obviously hold the majority in thrall, that
the outcome is not in doubt for a minute. The opinion throughout gives
undiluted primacy to the media's First Amendment rights, treating the Sixth
Amendment rights of a defendant, not as a co-equal constitutional guarantee,
but as no more than a pestiferous, nitpicking nuisance, standing momentarily
in the way, to be disposed of as summarily as may be. The opinion treats
media rights as supreme and the defendant's rights to a fair trial as
secondary and virtually nonexistent except in the most egregious and
unlikely circumstances that can be imagined. And this, notwithstanding
both are clear and equally constitutional rights.
Chief Justice Allen hit the target squarely, albeit more politely than
my concern permits me to emulate, in his concurring opinion: "It is diffi-
cult to conceive of a fact pattern where sealing or closure could ever be
granted under the substantial probability standard." (Emphasis added.) I
agree with the view of the Chief Justice to the extent of that statement.
It exposes the majority's exercise in constitutional favoritism and
inexcusable obeisance to the media on the one hand and, on the other, its
relative indifference to the extreme uncertainty confronting a defendant.
The result reached by the majority together with the one-sided
rationale employed in the opinion to justify that result, must be a bitter
pill for defendants-to-be in criminal cases, as well as the defense bar
generally, and others who are concerned that those who stand before the
courts charged with a crime receive the fair trial (in fact, not just
theory) to which they are entitled.
It is the epitome of irony, in the light of today's decision, that an
accused in a criminal case is supposedly presumed innocent until the state
proves his guilt beyond the shadow of a doubt. They should receive from
the court every protection possible in support of that presumption, to the
end that the trial which lies before him is in fact a fair trial beyond any
question, before an unbiased jury with as little fore-knowledge as it is
humanly possible to provide.
The majority opinion is slanted towards the ultimate result from the
outset. In the opening paragraph it cites, as the primary and underlying
issue, the argument of the media-appellants that their constitutional rights
under the First Amendment to the United States Constitution were violated by
certain orders of the trial court.
It is significant that even at this preliminary stage the majority
indicates no concern whatever for defendant's right to a fair trial; indeed,
this right is addressed in the opinion only in relation to its impact on
First Amendment rights. The whole thrust of the opinion is a labored
attempt to "get around" the defendant's Sixth Amendment fair trial rights
with arguments that are pure theorizing, speculation, and assumptions having
no counterpart in reality. The opinion is a dark monument to those who take
up residence in the ivory tower of theory, as distinguished from practical
and actual experience in the real world.
I have reservations that the so-called underlying issue identified by
the majority, that is, whether appellants' First Amendment rights were
violated, considered in isolation, is relevant at all. Nevertheless, for
purposes of argument only, I will assume, at this point, that those rights
were violated by the challenged orders of the court. I would add, however,
that, in fact, it is not the underlying issue at all; to say it is gives a
one-sided and unwarranted emphasis on media rights at the expense of Sixth
Amendment rights. It is equally important in every respect, however, to
determine whether defendant's Sixth Amendment rights were also violated.
With that arguendo assumption, my initial response is a colloquial "So
what?" To understand the real issue here one need only ask the very simple
question: given a potential conflict between First and Sixth Amendment
rights, which has primacy? Before concluding this dissent, it will be
necessary to add and examine an additional factor, that is, whether these
potentially conflicting interests can be validly reconciled or balanced. At
the outset, however, I will assume they cannot and proceed on that basis.
The obeisance which the courts so often make to the news media is
difficult to understand. Except to the extent the courts have played their
games with the phrase "freedom of the press," the First Amendment guarantees
the media, with some limited exceptions such as national security, no more
than the rights which every individual enjoys equally; that is, to inquire
into, and investigate the workings of their government. The media has, of
course, a clear advantage because of the resources, including facilities,
equipment, personnel, and time available to support investigations. There
is relatively little if any necessary significance to the words "freedom of
the press" which, technically at least, confers no greater rights on the
media than those shared by every individual citizen.
Whatever may be said for rights of access to public records and
documents granted by statute, common law, or both, it is not a result of the
First Amendment. As the latter is structured, it insures the right of the
news media to inquire and investigate freely and without being hampered by
state or federal law. Standing alone, it imposes no reciprocal obligation
on governmental agencies or their officials and employees to open their
files to anyone, give out requested information orally, or respond to,
questioning. It is a hands-off mandate only; it does not order cooperation.
The political consequences of failures and refusals to cooperate may not be
salutary in many cases, but that is not the issue here. Rights of public
and media access, and obligations on government to disclose, are creatures
of the common law and statutes, not the First Amendment.
It is also true that the First Amendment imposes no obligation, no
duty, on the media to investigate or to publish anything; its boundaries
are limited generally only by its own discretion. No one denies the great
importance of the First Amendment as it relates to the news media, even
though the actual exercise of these rights are often controversial in the
face of insensitivity, sensationalism, and unconscionable -- even if techni-
cally legal -- intrusion into individual privacy. Nevertheless, the
public's knowledge of their government, and governmental agencies and
officials, would be seriously endangered without those rights. So much for
the First Amendment.
Turning to the Sixth Amendment, one thing has always impressed me. It
is one of the relatively few sections of the Bill of Rights which addresses
the rights of individuals, as individuals, rather than collectively by
class. Thus, the provisions refer to the defendant in a criminal prosecu-
tion in the singular: "the accused shall . . . ." It is this same accused
(understood) who is entitled to be informed of the nature and cause of the
accusation; "to be confronted by the witnesses against him"; to obtain
"witnesses in his favor," and the "Assistance of Counsel for his defense"
(emphasis added). On the other hand, the First Amendment by its specific
language (assembly, petition for redress) or its clear intent, protects
certain freedoms of "the people" or special classes thereof, in a collective
sense.
I would not be understood to suggest that individuals are any the less
protected than their class as a whole under the First Amendment. Neverthe-
less, the different styles in which the two amendments are drafted, points
up the striking differences in the status of those affected by the First on
the one hand, and the Sixth on the other. An accused, far more often than
not, stands alone; while the public -- as spectator to his plight -- may
well be hostile to him if the charge involves a particularly vicious crime
of violence or has some other sensational aspect. The so-called presumption
of innocence is, I fear, all too often regarded with cynicism; a charge
alone is, I suspect, all too often enough to generate a presumption of guilt
rather than innocence.
Yes, an accused stands alone. Seldom, with a scattered handful of
notable and magnificent exceptions, (FN4) will he find any one or more persons
who will rally behind him. Moreover, an accused has the full panoply of the
state, county, or municipal law enforcement and prosecutorial resources
arrayed against him.
To me, there is no constitutional right more sacred than that of an
accused in a criminal case to receive a fair trial; as a corollary, there is
no greater moral and legal duty on the courts than to employ every device
at their disposal to insure that the right is fully protected. This duty is
ill-served by reliance on such purely subjective legal placebos as "substan-
tial probability," "reasonable likelihood," and others, which lie within the
capacity of judicial genius to create as escape routes from the obligation
of doing justice in fact in difficult situations.
The spectacle of an accused, entitled legally to be presumed innocent,
standing alone in a network of technicalities, should stir the conscience of
everyone regardless of how case-hardened and cynical they may have become.
In my judgment, the First Amendment rights of the media, as truly important
as they are, pale in comparison. The time is now to look askance at the
primacy and the favoritism, extended to the media, which shows through in
too many judicial opinions dealing with the problems attendant upon freedom
of the media versus fair trial. To lapse momentarily into the colloquial,
too many of those opinions are just "plain phoney."
These opinions come into existence as a result of a number of factors.
Among them is a seriously misguided sentiment that, except in very rare
cases, primacy should be awarded to the media; rationale based, in part, on
an exaggerated claim of public interest, pure theory, based in turn on
speculation, claimed probabilities, and thinly disguised guesswork. An
infamous burden is placed by the courts on the accused to demonstrate the
virtually impossible, namely that access to the material before trial by the
media will be prejudicial. This difficulty simplifies the ability of a
court, with piously lifted eyes, to deny motions for sealing, closure, and
the like, because of a defendant's failure to satisfy the evidentiary burden
placed on him, and provides a false justification for denial rulings.
In the case of an individual charged with a criminal offense, the
problem of a fair trial is singularly his alone. If the offense with which
he is charged, and presumed innocent until convicted, has sensational
aspects, the media frequently whips up public feeling with dramatic head-
lines, details of the crime, interviews with officials and with others
directly or indirectly involved, and the publication of pretrial documents,
investigatory and other records like those relating to the case before us.(FN5)
An accused may even be confronted, figuratively at least, by a lynch-mob
psychology as he is transported to and from the place of trial, and which
can, and has, rubbed off on jurors and even the bench itself. Anyone
familiar with the notorious Lindbergh kidnapping and child-murder case in
New Jersey in the 1930s has good reason to question the fairness of the
defendant's trial. A similar public outrage, based primarily on publicity,
permeated the "sensational" Leopold-Loeb murder case in Chicago in the
1920s; the attorney for the defendants recognized that his clients had no
chance of acquittal by a jury and that a death sentence would most certainly
follow. Accordingly he persuaded them to plead guilty and relied on his
powers of persuasion to convince the court to impose life sentences instead.
I reiterate: There is nothing more sacred than the constitutional right
to a fair trial; there is too much at stake within the ambit of justice to
be otherwise. The courts have a high degree of responsibility to use every
device at its command to protect that right, even at the expense of media
freedom because, and I reiterate, an individual, per se, is always involved,
and there is no one more helpless than the individual, guilty or innocent,
caught in the toils of the law. We must not, with a sly wink in the
direction of the media, invite comparison with the arachnids, saying: "Won't
you walk into my parlor," as the spider said to the fly.
I say that the burden of proof placed on defendants by the majority, to
establish prejudice, is all but impossible to satisfy, and is now made even
more difficult by the standards and guidelines established today by majority
fiat. This is for the very simple reason that no one is psychic, no one can
predict with absolute certainty, before the fact, what will or will not
prejudice the fair-trial right of a defendant. (FN6) If the learned graybeards
peering into their crystal ball, decide that the publicity before trial,
following disclosure, will not be prejudicial, and jurors are in fact
influenced thereby to the ultimate detriment of a defendant, then, that is
a lynching! Or at least a drumhead proceeding.
If a burden is to be placed anywhere, let it be on the media to
demonstrate that the material demanded for publication before trial will not
prejudice the accused. I do not, however, have my head in the clouds as
does the majority. I recognize that placing the burden on the media is
equally difficult; but what are we talking about here? We are talking about
the right of an individual to a fair trial in fact.
In the case before us, which is typical, the accused did not invite the
media to participate, nor was the latter under the slightest obligation to
do so. It intruded, regardless of its right, entirely as a matter of its
own discretion and judgment. In doing so, however, it trapped the accused
into two battles instead of one. If the case against him had not been
dismissed, he would have had to employ his time, attention, and efforts in
fighting a sort of sub-case, before he could finalize his underlying case
and defend himself; efforts which are almost inevitably hopeless and futile;
"All hope abandon, ye who enter here!" (FN7)
I have agreed to an arguendo assumption that the rights of the media-
appellants under the First Amendment were violated. I added, however,
that, standing alone, that was irrelevant, unless addressed in the context
of the rights of accused to a fair trial under the Sixth Amendment. Thus,
it is obvious that the violation of the rights guaranteed by either of the
two amendments, standing alone, is not the determining issue.
The true issue here has three prongs: first, does the constitutional
freedom of the press conflict with the defendant's equally constitutional
right to a fair trial under the Sixth Amendment? Secondly, if there is a
conflict under the facts of this case, can it be reconciled, or, in other
words, rendered harmless to the point that, in effect, the conflict no
longer exists and both rights are accommodated? Finally, if the conflict
cannot be reconciled, which one of the two conflicting constitutional rights
has primacy?
The greatest danger encountered in fair-trial versus media cases is the
possibility that the jurors will have been so influenced by pretrial
publicity that they have become irredeemably biased or prejudiced against an
accused. This Court has, in the past, spoken out often and sternly of its
sensitivity and concern for the rights of defendants to a trial by an
unbiased jury. It is a right which may be waived only by the accused
personally, and only by a knowing and intelligent waiver. State v. Bailey,
144 Vt. 86, 102, 475 A.2d 1045, 1054 (1984). This Court has a duty to set
aside a guilty verdict when the record discloses even a possible infringe-
ment of his right to a jury untainted by any suspicion of extraneous
influence. State v. Woodward, 134 Vt. 154, 158, 353 A.2d 321, 323-24
(1976). The test for jury prejudice, through extraneous influences and
considerations, is not whether such irregularities actually influenced the
result, but whether they had the capacity for doing so. Id. at 156-57, 353 A.2d 323 (quoting State v. Ovitt, 126 Vt. 320, 324, 229 A.2d 237, 240,
(1967)).
It is clear, by the strategy it employs in reaching its decision, that
the majority recognizes that defendant's Sixth Amendment right to a fair
trial was actually or potentially violated. If that were not so there would
have been no need to undertake the laborious reconciliation route it pre-
tends to follow. The opinion commences, for all practical purposes, by
announcing its intent to balance the First and Sixth Amendment rights
involved and thus determine primacy. This is just another way of saying
that the opinion seeks to reconcile the differences. There would be nothing
to reconcile or balance if there was no conflict; primacy would be self-
determining.
Be the above as it may, the majority moves on with its balancing
pretence by mounting the battlements of its ivory tower where, notwith-
standing our holdings referenced above, that the test for jury prejudice is
not whether irregularities actually influenced the result, but whether it
had the capacity to do so. State v. Woodward, 134 Vt. at 157, 353 A.2d at
323, it substitutes theories involving abstract speculation, guesswork and,
as noted earlier, semantics, in the form of purely subjective legalistic
placebos to ease its conscience, and place an all but impossible burden on
the one who is the most in need of protection. The real world of practical
experience and common sense lies so far below that it is out of sight of
those above; their legalistic formula-ridden sport is never disturbed.
Essentially the majority recite two devices for use by the trial
courts when balancing First and Sixth Amendment rights. Most unhappily for
any fair trial expectations, they are all so heavily weighted against
defendants in criminal matters, that the result in all cases, except a rare
few in the most exaggerated and unlikely circumstances, is guaranteed to the
media. What an insult to, and a mockery of justice! It is not a balancing
in any real sense, any more than if a 250 pound man is weighed against a 10
pound baby to determine which one is the heaviest. As a matter of reality,
is there any doubt at all as to which end of the scale will make down
weight? Of course not; nor is there any doubt here as the majority engages
in its pretense of balancing.
The first device championed by the majority is a change of venue. I
find it hard to believe that this hoary old chestnut is still taken as
seriously as it might have been in the dear dead days beyond recall, before
news gathering and almost instant dissemination to the public moves as
rapidly as it does today.
Chief Justice Allen, concurring in State v. Tallman, 148 Vt. 465, 476,
537 A.2d 422, 429 (1987) was squarely on target when he quoted from Gannett
Co. v. DePasquale, 443 U.S. 368, 378 (1979) (emphasis added):
The danger of [pretrial] publicity . . . is particularly
acute, because it may be difficult to measure with any
degree of certainty the effects of such publicity on the
fairness of the trial.
I would go even further than the Chief Justice and recognize that, as a
practical reality, it is more than difficult, it is impossible, even after
the fact, to say nothing of before the publicity is released, to measure its
effects on the fairness of trial. (FN8)
The whole "favored nation" treatment -- to borrow a phrase -- afforded
the media by the courts, and denied to criminal defendants in these cases,
is unfair beyond comprehension. Not only is the burden placed on defendants
almost impossible to satisfy before the fact, but there is no way by which
the human mind can ever determine, with the slightest degree of certainty,
that advance publicity did not, in any way, prejudice the fair trial rights
of a defendant who, by the way, is still presumed innocent at the time the
challenged information is made public. I believe the applicable phrase is
"black comedy," that is, the "humor" typical, for example, of the cruel
practical joker, or cynic, who arrogantly makes sport of the frailties of
the human condition. Thus, in A Midsummer-Nights Dream, III, ii, Puck, who
is a champion among practical jokers if ever there was one, mocks, "Lord,
what fools these mortals be!" and later, the duke comments on a tragic love
affair as "very tragical mirth. Merry and tragical!" Id. V, i. Shakespeare
has a phrase for all occasion!
As noted above, the defendant did not invite the media to intervene.
It was entirely the appellants' decision. Why, in the name of fair play and
reason, should the serious, complex and worrisome problems which already
confront defendant in preparing to defend himself, be doubled by placing the
impossible burden of proving the impossible, in a matter wholly collateral
to the underlying case, be placed on the defendant? It is the media, not
the defendant, which is responsible for enmeshing the latter in two separate
litigation problems rather than the one he anticipated. Why is it any more
difficult for the media to demonstrate that publicity will not prejudice the
defendant, than for the defendant to prove that it will? One can never say,
with the slightest degree of certainty that publicity did not result in
prejudice.
It is unconscionable to place the burden of going forward on a
defendant in a collateral phase of his case, which he did not institute and
for which he is in no way responsible or accountable. This seems inappro-
priate, if for no other reason than the virtual impossibility of satisfying
the burden. The burden is made doubly onerous, when we consider that the
defendant has no way of knowing the exact form pretrial publicity will take
until it is too late, or how the publicity will be written. Will it be,
perhaps unintentionally, slanted, or some aspects thereof omitted from the
publicity to the detriment of the defendant? I conclude therefore, that a
mere change of venue, as suggested by the majority as an appropriate pro-
tective device, particularly in a state as small as Vermont, coupled with
placing the burden on a defendant to show that publicity will be
prejudicial, is grossly unfair and an improper solution to the conflict of
rights problem. It is, in fact, no solution at all; it serves only as a
guarantee that the First Amendment rights of the media will inevitably be
favored by this Court, and a defendant's right to a fair trial ignored, or
favored with pietistic lip-service only, as seems to be the case here.
Vermont is one of the smallest states in the union, both in population
and area. This is not California, New York, Illinois, Texas, Florida or New
Jersey, among others, where either or both area and population far exceed
ours. Although it is questionable, even in those jurisdictions, particular-
ly in sensational cases, a change of venue might be a more arguably effica-
cious alternative. Nevertheless, to compare little Vermont to these states
in order to justify a venue change here as a resolution to the conflict of
rights is laughable, albeit, "very tragical mirth." State-wide coverage,
at least of sensational matters is inevitable. Even if the extent of media
coverage may lessen with distance, be assured it will revive and expand in
the new venue to which the case has been transferred, once the change is
made and becomes public knowledge.
The second device suggested by the majority as insuring that all jurors
are free of any bias or prejudice against an accused resulting from pretrial
publicity, is the voir dire. The opinion speaks with laudatory enthusiasm
-- about as naive and credulous as anyone can get, especially one trained in
the law and with even a minimum of trial experience -- for the ability of
clever and experienced trial counsel to separate out the wheat from the
chaff when testing the qualifications of those summoned as prospective
jurors.
The essential difficulty with the voir dire claim is, as in the change
of venue theory, its remoteness from the slightest conformity with reality.
For reasons that I can account for only as expediency in smoothing the path
of media interests, the majority speaks glowingly of what a skillful
attorney can accomplish on voir dire. This takes for granted as a given
fact, that the defense bar -- to a man -- consists of Clarence Darrows or
better; highly competent, highly skillful, infallible judges of human
nature, and all prospective jurors are bumbling idiots and trembling putty
in the hands of these paragons of defense advocacy. My repetition grows
tiresome, I'm sure, but what else can I say than that this is patently
unfair, inexcusably slanted theorizing that has nothing whatever to do with
reality.
I do not intend to demean the defense bar or the bar generally. The
problem is simply that the majority opinion indulges in the convenient
assumption that attorneys who represent criminal defendants are an organi-
zation of mind-reading supermen, skilled and qualified at an impossibly
high level; thus permitting the opinion to stress relentlessly and
repeatedly, the First Amendment rights of the media, at the same time it
speaks of what skilled counsel may be able to accomplish on voir dire.
The opinion quotes from Press-Enterpise I to the effect that the First
Amendment rights cannot be overcome by mere conclusory assertions relating
to the fair trial rights of a defendant. It is not necessarily impressive
that it is the United States Supreme Court being quoted. Are media asser-
tions that publicity, which does not even exist at the time of suppression
hearings, any less conclusory or purely subjective? The opinion continues,
(quoting the Third Circuit in United States v. Martin, 746 F.2d at 973),
"[T]esting by voir dire remains . . . [an] effective means of determining a
juror's impartiality and assuring the accused of a fair trial." This is an
unfortunately unfair, self-serving statement, slanted entirely to favor the
media and the majority decision. It is impossible to say in any case
whether the voir dire has or not been effective to disclose any juror bias
or prejudice. Martin is no more than wishful thinking at a high level.
Where is the empirical evidence which supports this blandly asserted
effectiveness? There is none. The majority is quick enough to castigate
the defense for an insufficiency of evidence; in fact, the evidence is
insufficient only because the majority says it is. It is more than adequate
and once more we see favoritism.
I return again to the injustice of placing the burden on the defendant
to show that disclosure will prejudice his right to a fair trial. There is
no "balancing" involved in this, yet it would be no more onerous to assign
the burden to the media. It is the media, after all, who want certain
materials. Nor does the majority suggest how anyone can ever establish
with any assurance to the defendant that disclosure or access cannot
possibly prejudice his case. The unfortunate truth is that no one can ever
possibly know. Therefore, if a defendant is convicted, he may, for all any-
one knows, languish in prison or, in some states lose his life, because of
well-concealed jury bias, while the media, the courts and the world at large
move on indifferently. All the more infamous is this injustice when a
defendant has been unable to satisfy the burden so casually placed on him,
when an honest comparison of rights should satisfy any fair minded and
justice-sensitive person that the burden should lie with whoever wants
access, including the media, to demonstrate, if they can, that disclosure
will not jeopardize the defendant's right to a fair trial -- one of the most
fundamental rights guaranteed to the individual as such.
As the majority opinion is structured, it tells defendants, "We will
see that you have a fair trial provided, of course, it doesn't get in the
way of the media. Otherwise, sorry, any guarantee of a fair trial, per se,
is irrelevant." The fair approach should be to say to the media, "You ask
for access to certain pretrial material, and defendant objects on the
grounds that the release and publication of this material may be prejudi-
cial; you have the right of access and publication provided you establish
that it will not prejudice the defendant's right to a fair trial."
There was a time, I think, when the courts took pride in guarding the
"individual" against the incursions of the powerful. Now, it seems, that
pride was timorous; a jerry-rigged vessel which comes unstuck all too
easily.
As a practical matter, it is virtually impossible to "prove" the effect
of something that has not even happened, except by unmitigated guess-work,
speculation and crystal ball-gazing. I would, therefore, favor even the
most revolutionary concept, as I am sure it will be regarded, that the
motions like those made by defendant here should be granted as a matter of
right. I can think of no other way to insure with any certainty that
defendant's right to a fair trial could not be endangered by pretrial
prejudice against him on the part of any prospective jurors as a result of
foreknowledge engendered by publicity.
The familiar arguments made by the media, that publicity enables the
public to monitor its courts and the judicial process, are the clawings of a
paper tiger, shadow without substance, bordering on the outright silly.
There is very little, if anything, of importance in pretrial material that
does not become manifest at trial. On the one hand, the courts "pretend" to
favor juries with as little foreknowledge as possible, as insurance against
any pretrial mind-set prejudicial to a defendant. On the other hand, these
same courts encourage and protect even the most detailed, repetitive and
continuing publicity generated by the media, which, even at its best, gives
rise to uncertainty, and then, cynically, places the "burden of proof" on
the hapless defendant to establish the likelihood of prejudice, citing such
patent-medicine-show cure-alls as venue changes and the voir dire -- Janus
incarnate.
Motions such as those filed here are generally initiated by defendants.
There might be grounds for considerable caution in those rare cases where
similar motions are originated by the state, there is no similar caution
warranted in granting pretrial sealing and suppression motions involving
media publicity filed by the defense.
Except as otherwise noted herein, I must reluctantly include in this
dissent those lines of the concurring opinion which condone placing the
burden of proving the virtually impossible on defendants in these cases. I
have explained my reasons above.
_________________________________
Louis P. Peck, Associate Justice
FN1. Justice Gibson sat for oral argument but did not participate in the
decision.
FN2. "Hamlet," II, ii.
FN3. I hasten to add, with appropriate blushes, before someone else does
it for me, that this dissent is no less "wordy" than the majority opinion,
and suffers from repetition. Nevertheless, I like to think that I have
analyzed the situation presented to us on the basis of reality, which I
believe the majority has failed to do on any basis. The repetition has two
parents: the genuine concern I feel at an unjust result leads me to
emphasize and reemphasize certain aspects of the case: the real world
consequences thereof, the primacy accorded First Amendment rights at the
unconscionable expense of the Sixth Amendment, and secondly, my empathy for
the depths into which the majority has plunged those seeking their rights to
a fair trial; "de profundis" indeed!
FN4. Vide the Sacco-Vanzetti case in this country, and the Dreyfus
"affair" in France.
FN5. Media sensationalism often feeds on itself. Once public opinion and
sentiment has been stimulated by reportorial techniques, the media frequent-
ly continues "the good thing" it has created, rubbing its hands in glee and
sends its minions abroad to report at length on the opinions of various
"experts" and other sources, on the possibility of a fair trial in the light
of the very publicity the media itself has generated.
FN6. The media-appellants recognize the difficulty but put a back-spin on
the ball, criticizing the trial court's orders as based upon "presumed
damage and not actual damage of defendant's rights." Very conveniently, of
course, it evades the real issue of how a defendant can ever prove the
"reasonable probability" of the "actual" damage which will result from an
act that has not yet happened. This is an inappropriate attempt to apply
tort language.
FN7. Dante, "Inferno" canto III
FN8. The dangers to defendants inherent in pretrial publicity through the
media is two-fold: first, publication of the material itself as it is baldly
stated, and second, the manner in which it is presented through editing,
creative writing and other elements of composition prior to publication,
which can never be anticipated.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
