State v. Whitney
Annotate this Case
State v. Whitney (2004-293); 178 Vt. 435; 885 A.2d 1200
2005 VT 102
[Filed 19-Aug-2005]
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.
2005 VT 102
No. 2004-293
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Lamoille Circuit
Edgar Whitney April Term, 2005
Edward J. Cashman, J.
Joel Page, Lamoille County State's Attorney, Hyde Park, for
Plaintiff-Appellee.
Robert B. Hemley and Heather Rider Hammond of Gravel and Shea, Burlington,
for Intervenors/Appellees The Burlington Free Press and The Stowe Reporter.
Matthew F. Valerio, Defender General, Henry Hinton, Appellate Defender, and
Dominador Pascual, Law Clerk, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
Allen, C.J. (Ret.),
Specially Assigned
¶ 1. ALLEN, C.J. (RET.), specially assigned. In this
interlocutory appeal, defendant argues that the district court erred by
denying his motion to seal a competency report that he claims was not
formally admitted into evidence during the competency hearing. We affirm.
¶ 2. Defendant was arraigned on a charge of first-degree murder in
June 2004. After learning at the arraignment that defendant had attempted
suicide, the district court ordered that he undergo a competency
evaluation. An evaluation was conducted, and a report was filed with the
court on June 23, 2004. A competency hearing was held on July 7, 2004. At
the hearing, defense counsel and the state's attorney presented the court
with a written stipulation stating that defendant was competent to stand
trial. The state's attorney emphasized that the stipulation was based on
the competency report's findings and conclusions. The court stated that it
would accept the stipulation because the report supported it. Concerned
that the court may have "accepted" the report, defense counsel stated that
he wanted the report to be part of the record, but he was not offering it
into evidence because he did not want the press to have access to it.
Defendant argued that § 6(b)(19) of the Rules for Public Access to Court
Records denied public access to the competency report because the report
had not been admitted into evidence. When the court reiterated that it had
relied upon the report, and that the report was part of the record,
defendant moved to seal the report, relying primarily on his interpretation
of § 6(b)(19).
¶ 3. The court concluded that while it respected the parties'
stipulation, it had a duty to make an independent evaluation of competency
based on the record, and that the record included the report, which
provided an adequate factual basis for a finding of competency. The court
also concluded that defendant had failed to demonstrate that releasing the
report would prejudice him. On appeal, defendant argues that there is no
presumptive First Amendment right of access to competency reports not
admitted into evidence, and that the trial court erred by denying
defendant's motion to seal the instant competency report because it had not
been admitted into evidence.
¶ 4. As a preliminary matter, we reiterate that defendant's motion
to seal before the trial court was based primarily, if not exclusively, on
his claim that court rules did not allow public access to the competency
report because the report had not been admitted into evidence at the
competency hearing. Defendant only vaguely argued that releasing the
report could prejudice him, and on appeal he merely repeats in a single
sentence that the report is likely to prejudice him in a pending civil suit
and his criminal trial.
¶ 5. The dissent disagrees with our assessment that defendant's
focus in challenging release of the competency report was based almost
exclusively on the public access rules, and criticizes the trial court for
not approaching defendant's vague claims of prejudice with more "judicial
vigor." We find no support, however, for the dissent's view that the trial
court gave "short shrift" to balancing defendant's right to a fair trial
against the public's right to access court records. Defendant's desire not
to see some unspecified information in the report reach the public was
hardly sufficient to require the court to find a substantial probability
that a compelling interest of defendant's would be harmed if the public
gained access to the report. At the hearings below, apart from the
parties' extended debate over whether the competency report had been
admitted into evidence, defendant's attorney merely noted, by way of
explanation for why his client wanted the report sealed, that he had
"gotten wind of the potential for a civil suit," and that he had "some
concerns . . . that some of the contents of this report would prejudice"
defendant. We find nothing in the record, however, specifying what those
concerns were or which contents of the report might have been prejudicial
to defendant if released to the public.
¶ 6. In response to defendant's vague claim of prejudice, the
trial court balanced the limited information presented to it and concluded
that defendant would not be harmed if the public gained access to the
report. The court stated that information concerning defendant's medical
background in the report was not particularly distressing in nature, and
expressed doubt that defendant's right to a fair trial would be affected by
the release of any information in the report. See State v. Tallman, 148
Vt. 465, 474, 537 A.2d 422, 427 (1987) ("[I]n the overwhelming majority of
criminal trials, pretrial publicity presents few unmanageable threats to
the accused's right to a fair trial." (internal quotations omitted)). The
court later noted that the report contained nothing that had not already
been in the newspaper, to which defense counsel responded only that there
was also the matter of a potential civil lawsuit. In short,
notwithstanding the dissent's claims to the contrary, defendant had every
opportunity to demonstrate prejudice, but failed to do so.
¶ 7. On appeal, defendant summarily contends that release of the
report is likely to prejudice him, without any further explanation.
Because defendant has failed to challenge the trial court's finding that
releasing the report would not prejudice him, and because we conclude that
the competency report in this case was available to the public under our
Rules for Public Access to Court Records, we need not consider defendant's
claim that there is no constitutional presumptive right to access
competency reports. See State v. Curtis, 157 Vt. 275, 277, 597 A.2d 770,
772 (1991) ("Under longstanding practice and precedent, we must not
consider constitutional questions unless the disposition of the case
requires it."). As we stated in In re Sealed Documents, 172 Vt. 152, 156,
772 A.2d 518, 523 (2001), in which we declined to resolve whether the First
Amendment required public access to certain court records, "[o]ur tradition
of addressing issues of constitutional significance only when the matter is
squarely and necessarily presented counsels restraint and forbearance as to
the broader questions of access on these alternative grounds." The dissent
faults the trial court for failing to fulfill its duty to determine whether
providing public access to the competency report would impair defendant's
constitutional rights, but defendant failed to adequately present any claim
of prejudice, and, to the extent that he did, the trial court rejected such
a claim.
¶ 8. In sum, defendant's motion to seal the competency report was
made to keep the whole report out of the public domain based on defendant's
interpretation of § 6(b)(19) of the Rules for Public Access to Court
Records. This was an ineffective and inappropriate use of a motion to
seal. Under § 7(a) of the Rules, the purpose of such a motion is to "seal
from public access a record to which the public otherwise has access" or to
"redact information from a record to which the public has access." The
motion can be granted on a finding of case-specific "good cause" and
"exceptional circumstances." Defendant never seriously tried to
demonstrate "good cause" or "exceptional circumstances." The dissent makes
some good points about factors defendant might have cited in arguing good
cause and exceptional circumstances in support of redaction of parts of the
report. Unfortunately, defendant did not cite these factors. Nor, as
noted, did defendant develop his argument that prejudice would result from
disclosure of the report and he would be adversely affected in a civil
suit. Thus, at most, defendant sought a declaration that the record was
excluded from public access by § 6(b)(19), a claim properly denied, as
discussed below.
¶ 9. We now turn to the Rules for Public Access to Court Records.
The purpose of these rules is to "provide a comprehensive policy on public
access to Judicial Branch records." Rules for Public Access to Court
Records § 1. The general policy established by those rules is that "all
case and administrative records of the Judicial Branch shall be open to any
member of the public for inspection or to obtain copies." Id. § 4.
Therefore, "all cases records" are open to the public unless they fall into
the exceptions set forth in § 6(b). Id. § 6(a). The only applicable
exception in this case is § 6(b)(19), which provides that the public shall
not have access to "evaluation[s] by a mental health professional to
determine the competency to stand trial and/or sanity of a criminal
defendant, if not admitted into evidence." In other words, the public is
allowed access to competency evaluations that are admitted into evidence.
¶ 10. Defendant argues that § 6(b)(1) precludes public access to
the instant competency report because neither defense counsel nor the
State's Attorney offered the report into evidence, and the trial court
never formally admitted the report into evidence. We find defendant's
technical argument unconvincing. By statute, when the court orders a
competency evaluation, the psychiatrist preparing the report must send the
resulting report to the court that ordered the evaluation. 13 V.S.A. §
4816(b). Moreover, "[t]he relevant portion" of the report "shall be
admitted into evidence as an exhibit on the issue of the person's mental
competency to stand trial and the opinion therein shall be conclusive on
the issue if agreed to by the parties and if found by the court to be
relevant and probative on the issue." Id § 4816(d) (emphasis added). In
this case, the court ordered a competency evaluation pursuant to 13 V.S.A.
§ 4814(a), and the psychiatrist sent the resulting report to the court.
The court then held a hearing on defendant's competency. At the hearing,
the parties presented the court with a written stipulation as to
defendant's competency based on the findings and conclusions in the
competency report. The court accepted the parties' stipulation because the
report supported it, stating that the report was the factual basis for its
finding of competency. In doing so, the court acknowledged the parties'
stipulation, but emphasized that it had a duty to make an independent
judgment based on the record, which in this case was the competency report.
¶ 11. Under these circumstances, the report was available to the
public. State law required the competency report to be admitted into
evidence, and the court, for all practical purposes admitted the report
into evidence, relying upon the report's findings and conclusions in
determining that it would accept the parties' stipulation of defendant's
competency. Therefore, the competency report is not covered by § 6(b)(19)
and is accessible to the public under § 6(a).
¶ 12. The dissent would reverse the trial court's order and remand
the matter based on the court's failure to reconcile § 6(b)(19) with §
4816(d). Specifically, the dissent contends that the trial court failed to
exercise its discretion to admit into evidence only "the relevant portion"
of the competency report, as required under § 4816(d). According to the
dissent, the only relevant portion of the competency report would have been
the psychiatrist's conclusions as to defendant's ability to stand trial.
We decline to follow this reasoning. First, defendant has not raised this
argument on appeal, and did not do so below. Indeed, defendant argued only
that § 6(b)(19) precluded public access to the report in its entirety, and
did not ask the court to prevent access to specified portions of the
report. Second, the trial court had no evidence before it other than the
parties' stipulation and the report. The court stated that the report-and
the report alone-contained the factual basis for its finding of competency.
Considering the court's duty to make an independent assessment of whether
defendant was competent, we cannot assume that, under these circumstances,
the court needed to rely only on the psychiatrist's conclusions concerning
defendant's ability to stand trial, without considering the factual bases
underlying those conclusions. Taken to its logical conclusion, the
dissent's proposal would mean that, even when a competency report is
admitted into evidence, the only part of the report that is ever available
to the public is the psychiatrist's conclusions. That is not the law.
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice (Ret.), Specially Assigned
------------------------------------------------------------------------------
Dissenting
¶ 13. SKOGLUND, J., dissenting. Because of the rank invasion into
the privacy of the accused for no apparent good reason, I respectfully
suggest the issue presented in this case deserves greater scrutiny by the
Court and a more careful assessment of the competing interests. The
accused's mental health is not at issue in this case. He has been found
competent to stand trial, so the public need not fear a delay of justice
caused by a term of hospitalization. There is no valid public interest
that I can discern in the psychiatric evaluation report ordered by the
court. I must respectfully dissent.
¶ 14. At defendant's arraignment on the charge of first-degree
murder, the judge ordered a psychiatric evaluation of defendant for
competence to stand trial and sanity at the time of the offense, though, as
the court noted, neither the defendant nor his counsel was "enthused by the
idea at all." The psychiatrist conducted the evaluation, prepared a report
and sent copies of the report to the court, prosecution, and defense
counsel. At the scheduled competency hearing, a public hearing attended by
members of the press, the State's Attorney and the defense counsel
presented the judge with a signed stipulation, in which all agreed that
defendant was competent to stand trial. The court noted, "we'll accept the
report, and there's an adequate factual basis to support the stipulation,"
whereupon the defense counsel requested a bench conference. At the bench,
defense counsel pointed out that defendant was not offering the report into
evidence. The prosecutor argued that he wanted the report to be part of
the record and that the report supported the stipulation. Defendant then
moved to seal the report arguing that, pursuant to § 6(b)(19) of the Rules
for Public Access to Court Records [hereinafter Access Rules], the
competency report was not available to the public as it had not been
introduced into evidence. The State indicated it did not take a position
on whether the court should grant defendant's motion to seal the report.
¶ 15. Noting that the report contained statements "that could be
viewed as terribly damaging," and anticipating that the press would want
access to the report, the court recessed to allow time for counsel, on
behalf of the Burlington Free Press and the Stowe Reporter, to enter and
oppose the request to seal.
¶ 16. The majority states that the motion to seal was based
"primarily, if not exclusively," ante, ¶ 4, on defendant's claim that the
court rules did not allow public access to the competency report because
the report had not been admitted into evidence at the competency hearing.
I disagree. When the hearing resumed a few hours later, with counsel for
the two news organizations appearing by telephone, defense counsel
presented several reasons the report should be sealed, including the fact
that the court had ordered the evaluation sua sponte, and that the report
contained information that could prejudice defendant in a potential civil
suit and prejudice his right to a fair trial under the federal and state
constitutions: "That's really the substance of . . . my desire to have this
particular record sealed, at least at this point in time. . . . I want to
make sure that Mr. Whitney's right to a fair trial is protected here."
(FN1)
¶ 17. The court denied the motion to seal, but delayed release
until defendant had an opportunity to appeal the decision to this Court.
The next day, the State moved to reopen the competency hearing and properly
admit the report so as to "side step this whole appeal issue" and "do it
the way in hindsight we should have done it in the first place which is to
follow the rule literally and have the stipulation based on admission into
evidence in a formal sense of competency report." Defendant moved to
reopen the arraignment so defendant could challenge the court's order for a
competency evaluation, noting that had they known the report would be made
available to the press, counsel would have advised defendant not to say
anything. The court granted permission to appeal and stayed the release of
the record until the appeal was decided. It also ruled that the competency
hearing would be reopened to permit the presentation of evidence, though
that did not take place.
¶ 18. The majority limits its analysis of the press's right of
access to the competency evaluation solely on whether the Access Rules
permit such access. It neglects to evaluate whether the court's refusal to
seal the report was sustainable. I suggest it was not, because the court
failed to reconcile § 6(b)(19) of the Access Rules with 13 V.S.A. § 4816
which, as explained below, limits a court's ability to incorporate a
competency report into the case record. In addition, the court failed to
exercise its discretion in ruling on the motion to seal, apparently
believing the Access Rules controlled the question.
¶ 19. No one disputes that there is a right of access to the
competency hearing itself. In Press-Enterprise Co. v. Superior Court of
California for the County of Riverside, 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. 478 U.S. 1, 8 (1986)
[hereinafter Press-Enterprise II]. Assessing this case under the first
factor, the right of access would attach. In Vermont, there is a
presumption that pretrial proceedings and documents are open to the public,
closure being the exception rather than the rule. State v. Tallman, 148
Vt. 465, 474, 537 A.2d 422, 427 (1987). Similarly, in State v. Densmore,
this Court held that a qualified First Amendment right of public access
attaches to documents submitted by the parties in sentencing proceedings.
160 Vt. 131, 137, 624 A.2d 1138, 1142 (1993). The Court, noting the right
was not absolute, went on to examine what interests or rights might
outweigh the right to access. Acknowledging that a defendant's right to a
fair trial was a compelling one, the Court agreed with intervenor newspaper
publisher that the same considerations were not present at the defendant's
sentencing, especially because the defendant himself had reviewed the
documents at issue and chose to offer them into evidence. Id. at 138-40,
624 A.2d at 1143.
¶ 20. Vermont statutory law confirms this general right of access to
court records, subject to recognized exceptions. In re Sealed Documents,
172 Vt. 152, 156, 772 A.2d 518, 523 (2001). For example, in Tallman, the
majority held that an affidavit of probable cause becomes a public document
after review by a court, relying on 4 V.S.A. § 693, and noted that, once
the document had been presented in court, 1 V.S.A. § 317(b)(5)-which
excludes agency records "maintained on an individual or compiled in the
course of a criminal . . . investigation by . . . police" from the
definition of a public record-no longer applies. 148 Vt. at 472-73, 537 A.2d at 426-27. See also In re Sealed Documents, 172 Vt. at 159, 772 A.2d
at 525 (holding, prior to the enactment of the Access Rules, that documents
upon which a court bases a decision to issue a search warrant, which are
filed with the court, and which become a part of the case record, must be
considered part of the "records of the court" under 4 V.S.A. § 693).
¶ 21. In addition, the Access Rules are broad. They define a
"record" to include any papers "made or received pursuant to law or in
connection with the transaction of any official business by the court."
Access Rules § 3(a). A "judicial branch record" is defined as a "record in
the possession, custody, or control of the judiciary or [one that] was in
the possession of the court for purpose of a court decision." Id. § 3(j).
¶ 22. In the case at bar, I do not quarrel with the conclusion that
the report was a "court record" pursuant to 4 V.S.A. § 693 or a "judicial
branch record" under § 3(j) of the Access Rules. However, I also agree
with the premise of Chief Justice Allen's concurrence in Tallman that "the
trial court should, in fulfillment of its constitutional duty to minimize
the effects of prejudicial pretrial publicity, make a preliminary
determination sua sponte as to whether the contents of the affidavit could
reasonably impair the defendant's Sixth Amendment rights if made public."
148 Vt. at 477, 537 A.2d at 430.
¶ 23. In this case, however restrained or inconclusive defense
counsel may have been in arguing for his client's trial rights, the court
should have approached the issue with more judicial vigor, whether the
report had been admitted into evidence in satisfaction of § 6(b)(19) of the
Access Rules or not. However, it seems the trial court decided that
because the report was not shielded from access by § 6(b)(19), then it
followed that the right of access to the entire report was absolute. In so
doing, the court failed to consider the statutory limitations on access
discussed below, and thus, its exercise of discretion cannot be sustained.
¶ 24. A court has authority to order a competency evaluation
whenever the court believes that there is doubt as to the defendant's
mental competency to stand trial or as to the defendant's sanity at the
time of the alleged offense. 13 V.S.A. § 4814. The resultant report
"shall be transmitted to the court issuing the order for examination, and
copies of the report sent to the state's attorney, and to the respondent's
attorney." Id. § 4816(b). No statement made in the course of the
examination by the person examined shall be admitted as evidence in any
criminal proceeding for the purpose of proving the commission of a criminal
offense or for the purpose of impeaching testimony of the person examined.
Id. § 4816(c). The purpose of this last provision is to promote objective
examination by removing the danger than an accused's communications to a
psychiatrist during the clinical evaluation will be used as evidence of
guilt. State v. Miner 128 Vt. 55, 69, 258 A.2d 815, 823-24 (1969). It
also reflects the protections against self-incrimination guaranteed by our
federal and state constitutions. U.S. Const. Amend. V & XIV; Vt. Const.
Ch. I, Art. 10; Miner, 128 Vt. at 71, 258 A.2d at 824.
¶ 25. Section 4816 further provides that "the relevant portion of a
psychiatrist's report shall be admitted into evidence as an exhibit on the
issue of the person's mental competency to stand trial." 13 V.S.A. §
4816(d). Thus, it requires a court to determine what constitutes the
"relevant portion" of the report, and admit only that portion into
evidence. It follows that the portion of the report not deemed "relevant"
need not be admitted into evidence.
¶ 26. In this case, the court made no attempt to identify the
relevant portion of the report. Rather, the court found that the entire
evaluation was available to the press. Given the absence of a challenge to
the determination of competency in this case, the only relevant portion
would have been that containing the psychiatrist's conclusions concerning
defendant's ability to understand the legal process, to appreciate the
charges against him, and to assist in his defense-that is, his competency
to stand trial. In particular, the details of whatever intimate, personal
experiences that defendant may have shared with the psychiatrist are not
relevant to his competency to stand trial. The court failed to reconcile
13 V.S.A. § 4816(d) with the Access Rules when it assumed that its
conclusion that § 6(b)(19) of the Rules did not preclude access to the
document required the court to grant access to the entire document.
¶ 27. In essence, the court appears not to have recognized that 13
V.S.A. § 4816(d) mandates that is separate the relevant portion of the
report from the non-relevant, at which point the Access Rules only would
have required it to grant access to the relevant portion. In other words,
the court overlooked that it had the discretion, and the "constitutional
duty[,] to minimize the effects of prejudicial pretrial publicity,"
Tallman, 148 Vt. at 477, 537 A.2d at 430 (Allen, C.J., concurring), by
denying access to the portions of the report not deemed relevant to the
competency determination. See Access Rules § 7(a) (authorizing court to
seal records). This is evidenced by the court's statement to the press
that, in light of the Access Rules, "I don't think I can . . . keep you
from it." To the contrary, because § 6(b)(19) of the Access Rules excepts
from public access "an evaluation by a mental health professional to
determine the competency to stand trial and/or sanity of a criminal
defendant, if not admitted into evidence" (emphasis added), it would have
covered any portion of the report the court did not find relevant, and thus
did not admit into evidence, under 13 V.S.A. § 4816(d).
¶ 28. The court also failed to consider the historically
confidential nature of the document. The reporter's notes to § 6(b)(19)
state that "[n]o statute or rule restricts public access to these records.
However, in practice, these evaluations have not been open to the public.
This exception continues the current practice." Most importantly, the
court did not actually determine whether § 6(b)(19) had been averted
through admission of an evaluation into evidence. Without a finding by the
court below that the document was properly in evidence, it is difficult to
see how the rule governs, and yet, the court found the access rule
controlled its decision. Here, the court held no hearing in response to
defendant's motion to seal to determine whether the contents of the
psychiatric evaluation could adversely affect his right to a fair trial,
and thus did not properly balance the defendant's Sixth Amendment right to
trial by impartial jury with the public's right of access.
¶ 29. We found a similar failure to exercise judicial discretion in
In re Sealed Documents. Holding that there was no indication that the
trial courts had engaged in any balancing process to determine if the
interests asserted were sufficiently compelling to outweigh the presumptive
right of public access, we remanded the matter to the trial court to
address the motion to seal the documents at issue. 172 Vt. at 163-64, 772 A.2d at 528. Here, in total, the court's balancing was as follows: after
noting that the report contained some information about the accused's
medical background, it stated that it did not
find it particularly distressing one way or another. So I'm
balancing a Sixth Amendment right to a fair trial. I don't know
how he would be hurt by any additional information coming out
which the State can't use anyway at trial, and . . . the devices
are available to screen out any predetermined decision-making made
by potential jurors who, coming from this county, I suspect
already have a full report anyway.
Given the court's failure to utilize its discretion under 13 V.S.A. §
4816(d) to determine and admit into evidence the relevant portion of the
report, I would remand this case.
¶ 30. Assessing this case under the second factor set forth in
Press-Enterprise II, I cannot see how public access to the non-relevant
portion of the report would play a significant, positive role in the
functioning of the court process. The cleansing effects of exposure and
public accountability, prized as the by-products of public scrutiny, seem
of little consequence in the circumstances herein presented. When sanity
or competency is a determinative issue in the case, the public's interest
is served when it can scrutinize and understand an insanity defense or a
finding of incompetency. However, in this case, the prosecution and the
defense agreed with the conclusion of the evaluating psychiatrist that the
defendant was competent to stand trial and so stipulated. The court, upon
reading the supporting documentation, agreed. (FN2) Release of the entire
evaluation done by a mental health professional on any defendant will
certainly not promote the goal of encouraging the kind of objective
examination that 13 V.S.A. § 4816 intends. The danger that an accused's
communications to a psychiatrist during the clinical evaluation will be
used as evidence of guilt may be eliminated by § 4816; however, the danger
that an accused's forthright discussion of possible mental health
indicators and issues will find its way into front page reportage is not
much less of a disincentive. For some, it may be more. I suggest that the
Access Rules were not intended to entirely erase the statutory directive
that only "relevant" information be admitted or that a court abdicate its
responsibility to control access to its records.
¶ 31. This is not a civil commitment hearing as was at issue in
State v. Koch, 169 Vt. 109, 116, 730 A.2d 577, 582 (1999), where we held
that the public interest in the case of a mentally ill defendant, with
serious criminal charges pending, and who had allegedly violated the
conditions of the non-hospitalization order under which he was released
into the community, was profound. Nor does it present the situation found
in Densmore, 160 Vt. at 138-40, 624 A.2d at 1142-43, where we reversed the
trial court's denial of access to a psychosexual evaluation of a criminal
defendant submitted by the defendant to the court for consideration at
sentencing. Nor is it a case where the defendant has claimed insanity as a
defense or raised incompetence to stand trial as an issue. This is a case
where an accused was ordered by the court to participate in an evaluation
of his mental health. He was never told that his communications with the
psychiatrist would become public and available to the news media. And, all
agree he is competent to stand trial.
¶ 32. Acknowledging the potential for improper uses of court files
such as "to gratify private spite or promote public scandal," the Supreme
Court in Nixon v. Warner Communications, Inc., wrote that "[t]he right to
inspect and copy judicial records is not absolute. Every court has
supervisory power over its own records and files, and access has been
denied where court files might have become a vehicle for improper
purposes." Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978).
¶ 33. The details of the accused's evaluation can serve no useful
public purpose that is discernable on the record before this Court. I
would reverse and remand for a hearing on the motion to seal.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. I agree that the presentation of this argument on appeal is spare.
FN2. I in no way dispute that it is ultimately the decision of the court as
to whether a defendant is competent to stand trial, notwithstanding any
stipulations by the parties.
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