In re Times-World Corp.

50 Va. Cir. 25, 1999 Va. Cir. LEXIS 382
CourtBedford County Circuit Court
DecidedFebruary 22, 1999
DocketCase No. CL98009486-00
StatusPublished

This text of 50 Va. Cir. 25 (In re Times-World Corp.) is published on Counsel Stack Legal Research, covering Bedford County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Times-World Corp., 50 Va. Cir. 25, 1999 Va. Cir. LEXIS 382 (Va. Super. Ct. 1999).

Opinion

By Judge James W. Updike, Jr.

On November 24, 1998, a preliminary hearing was held before the Juvenile and Domestic Relations District Court of Bedford County in the cases of Commonwealth v. Randy Dwayne Ross and Commonwealth v. Keirstin D. Davis pursuant to § 16.1-269.1(B) of the Code ofVirginia. In accordance with this statute, this was a preliminary hearing, rather than a transfer hearing, because Randy Dwayne Ross was charged with capital murder and Keirstin D. Davis was charged with first degree murder, and both juveniles were older than fourteen years of age. Both juveniles were also charged with certain ancillaiy felonies. The Honorable A. Burke Hertz, Judge Designate, presided.

Before this preliminary hearing, counsel for Randy Dwayne Ross made the following request pursuant to § 16.1-302(C):

We submit in this particular case because of the pre-trial publicity that has already been engendered by these proceedings and what we might [26]*26anticipate with respect to coverage of today’s proceedings that the court should use its discretion and require that the matter be closed to the media and open only to the family of the alleged victim in the case and of the accused.

(Tr. pp. 4 and 5.)

Counsel for the Randy Dwayne Ross further argued:

We submit that it would affect quite seriously — the types of coverages that are reported today — potential jury selection in this case, and that is the real basis of what we say.

(Tr. p. 5.)

Counsel for Keirstin D. Davis stated: “Judge, I would join in that motion on behalf of Keirstin Davis.” (Tr. p. 6.)

The Commonwealth took no position on the issue of closure of the hearing and stated that the matter was within the discretion of the court.

The court then ruled:

Based on what counsel has represented based on § 16.1-302, and the court is very sympathetic to the public interest that this matter has engendered, the public’s right to know as much as possible about matters of this nature is most important, but this court believes that the rights of the defendants as expressed by counsel transcends the right of the public to know and therefore we will order at this time that the media be excluded and that the hearing be closed except to family members and relations and that sort of thing. I do not want to inhibit these defendants’ rights in any way when it comes time for jury selection; they could be harmed very seriously in many ways as counsel has expressed. We do not want that to happen and in this court’s opinion it transcends the rights of the public to be fully informed in this matter.

(Tr. p. 7.)

After the court’s ruling, petitioner Terry Scanlon informed the court that he had earlier requested permission to be present during the hearing but had received no reply. Petitioner Shannon D. Harrington, as well as a reporter from a local television station, requested a delay to allow their attorneys to argue the issue of closure. These requests were denied, and the preliminary hearing proceeded after exclusion of the media. (Tr. pp. 8 and 9.)

[27]*27Pursuant to the disclosure requirements of § 16.1-302(C), the court released orders of closure which stated the following reason for closure of the hearing: “Motion of Defense Counsel alleging jeopardy to client’s right to a fair trial.” (Orders of Closure, 11/24/98.)

In response, the petitioners filed this petition for the issuance of a writ of mandamus compelling the following:

(1) the lower court’s ruling excluding the press be reversed and vacated as being violative of Virginia Code § 16.1-302, the First Amendment of the United States Constitution, and Article 1, § 12, of the Virginia Constitution; (2) the lower court be barred from excluding the press from any further proceedings in these matters; and (3) the transcript of the closed portion of the preliminary hearing be made public.

(Joint Petition for the Writ of Mandamus, p. 9.)

The petitioners further requested “such other relief as the nature of the case may require.” (Joint Petition for Writ of Mandamus, p. 5.)

Counsel for the parties first argued in their memoranda of law the issue of whether closure of the preliminary hearing of November 24,1998, violated the First Amendment of the United States Constitution, and Article 1, § 12, of the Virginia Constitution. When addressing this issue, counsel for the parties discussed at length the following decisions of the Supreme Court of the United States: Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I); and Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II).

Though all of these cases are instructive, I find Press-Enterprise lito be the most applicable because in that case, the Supreme Court of the United States was asked “to decide whether petitioner has a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution.” 478 U.S. at 3.

When deciding this issue, the Supreme Court first applied a two-prong analysis:

In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a “tradition of accessibility implies the favorable judgment of experience,” Globe Newspaper, 457 U.S. at 605 (quoting Richmond Newspapers, Inc. v. [28]*28Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring in judgment)), we have considered whether the place and process have historically been open to the press and general public ....
Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question. Globe Newspaper, supra, at 606. Although many governmental processes operate best under public scrutiny, it takes little imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that “the proper functioning of our grand jury system depends upon the secrecy of grand juiy proceedings.” Douglas Oil Co. v. Petrol Stops North-West, 441 U.S. 211, 218 (1979). Other proceedings plainly require public access. In Press-Enterprise I,

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In re J. S.
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Bluebook (online)
50 Va. Cir. 25, 1999 Va. Cir. LEXIS 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-times-world-corp-vaccbedford-1999.