Nichols v. Jackson

2001 OK CR 35, 38 P.3d 228, 30 Media L. Rep. (BNA) 1202, 72 O.B.A.J. 3717, 2001 Okla. Crim. App. LEXIS 36, 2001 WL 1530219

• Court: Court of Criminal Appeals of Oklahoma
• Decided: December 4, 2001
• Docket: O-2001-1151
• Status: Published

Opinions

OPINION ANSWERING CERTIFIED QUESTION OF LAW.

LUMPKIN, Presiding Judge:

I.

I 1 On September 14, 2001, Petitioner filed in the Supreme Court of the State of Oklahoma a Motion to Seal Proceedings, Case No. 96,609. The Respondent filed a Response in opposition on September 17, 2001. On September 20, 2001, the Oklahoma Supreme Court transferred to the Court of Criminal Appeals the decision on the threshold issue of closure. The Oklahoma Supreme Court stated in part "[the threshold issue to be settled before any proceedings may be commenced is whether defendant/petitioner's quest for withholding from public knowledge the entire course of this litigation should be upheld." Finding that a resolution of this threshold issue "may vitally affect the entire judicial process leading up to and progressing through the conduct of the trial upon charges that are now pending against the petitioner", the Oklahoma Supreme Court found the decision on the issue lay within the jurisdiction of the Court of Criminal Appeals. This Court was ordered to formally certify its answer to the Oklahoma Supreme Court.

T2 In order to provide a complete review of the issues and to assist in the resolution of the same, this Court ordered that responses from Petitioner and Respondent and/or his designated representative were necessary. Having timely received those responses, we now address the certified question of law before us.

IL.

T3 The United States Supreme Court has held there is a presumption of openness in criminal proceedings. In Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) the Supreme Court stated:

While open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity. In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access. -In Press-Enterprise I we stated:

"[Thhe presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." (internal citations omitted).

478 U.S. at 9-10, 106 S.Ct. at 2740-41.

4 The Supreme Court further stated:

"If the interest asserted is the right of the accused to a fair trial, the [proceedings] shall be closed 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."

Id., 478 U.S. at 14, 106 S.Ct. at 2743.

{5 These are the same principles of law relied upon in United States v. McVeigh, 918 F.Supp. 1452 1996) wherein the United States District Court for the Western District of Oklahoma held that all applications and orders for payment of interim fees and support services for the defense attorneys in Timothy McVeigh's federal trial were to remain sealed. In that case, the Honorable Richard Matsch, District Judge, stated that media motions to open sealed documents would be determined by the answers to the following questions:

Does the matter involve activity within the tradition of free public access to information concerning criminal prosecutions? Will public access play a significant positive role in the activity and in the functioning of the process? Is there a substantial probability that some recognized interest of higher value than public access to information will be prejudiced or affected adversely by the disclosure? Does the need for protection of that interest override the qualified First Amendment right of access? Is the closure by the court essential to protect that interest, considering all reasonable alternatives.

918 F.Supp. at 1464.

T6 In answering the above questions, Judge Matsch relied on the particular facts of the McVeigh prosecution, the Federal Rules of Criminal Procedure, and the Federal Criminal Justice Act, 18 U.S.C. § 80064, together with the guidelines adopted by the Judicial Conference of the United States. Judge Matsch found the Federal Freedom of Information Act, 5 U.S.C. § 552, was not applicable as it applies only to the executive branch, and not the courts.

17 We agree with the McVeigh court's application of the rights guaranteed by the First, Fifth, and Sixth Amendments of the United States Constitution and as adopted by the Oklahoma Constitution.¹ See Okl. Const., art. II, §§ 6, 7, & 20. In reviewing statutory enactments, we recognize those provisions must always be interpreted so as to adhere to rights vested through both the state and federal constitutions as they apply both to an individual charged with a crime and to the public. In Petitioner's case, the particular facts comprising the state prosecution are different from the facts of McVeigh's case and involve the application of state law. It is this distinction that yields answers to the above questions different from the conclusions reached in McVeigh.

IIL

8 In 1985, the Oklahoma Legislature enacted the Oklahoma Open Records Act (Act). This Act provides that "(alll records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours." 51 O.S.Supp.2000, § 244.5. The Legislature explained:

Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.... The purpose of this act is to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power. The privacy interests of individuals are adequately protected in the specific exceptions to the Oklahoma Open Records Act or in the statutes which authorize, create or require the records.

51 O.S.1991, § 244.2.

19 The Act's definition of "record" includes "all documents, including but not limited to, any books, papers, ... or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business." 51 O.S. Supp.2000, § 24A.3(1). The Act also states that boards and courts fall under its definition of "public body", and therefore are subject to its provisions. 51 O.S.Supp.2000, § 24A.3(2).

110 Records filed in the Oklahoma Supreme Court in Petitioner's original action, being documents and papers coming into the custody and control of the Supreme Court in connection with the transaction of the public business of the eriminal prosecution of Petitioner, fall within the purview of the Act. Unless the records fall within a statutorily prescribed exception in the Act, the Act requires the records be made available for public inspection and copying. For example, 51 O.S.Supp.2000, § 24A.5(2)(a), exempts records protected by state evidentiary privilege, including the attorney-client privilege. An examination of the Act shows no exception exempting records filed in Petitioner's Supreme Court action from public disclosure.

111 The Act does provide for the removal of materials from the public record by a court order. 51 O.S.Supp.2000, § 244.25. However, there is no provision in the Open Records Act which allows a court to balance an individual's interest in having ree-ords remain private and the public's interest in having access to the records. State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision v. Migliaccio, 917 P.2d 483, 487 (Okl.App.1996). The Legislature has determined by statute that the public's interest is greater, except where specific statutory exemption is given. Id. However, such statutory provisions are always subject to interpretation to ensure compliance with constitutionally guaranteed rights.

IV.

{12 Title 22 O.S.Supp.2000, §§ 2001-2002, known as the Oklahoma Criminal Discovery Code, (Code) governs the procedure for discovery in all criminal cases in all courts of this state. The Criminal Discovery Code requires the disclosure of certain evidence by both the State and the defense. 22 O.S.Supp.2000, § 2002(A) & (B).

T 13 The types of pleadings sought to be sealed in this case contain information regarding fees paid to Petitioner's attorneys. These pleadings do not contain any information regarding witnesses' statements of either party or trial strategy which would fall under the provisions of the Criminal Discovery Code. However, the Code does recognize the concept of selective sealing allowing for restricted disclosure or the issuance of a protective order. Title 22 O.S.Supp.2000, § 2002(E)(1) provides that "upon motion of the state or the defendant, the court may at any time order that specified disclosures be restricted, or make any other protective order." The subsection continues "[If the court enters an order restricting specified disclosure, the entire text of the material restricted shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal." 22 O.S.Supp.2000, § 2002(E)(1).

{ 14 The Code further provides that a "discovery order shall not include discovery of legal work product of either attorney which is deemed to include legal research or those portions of records, correspondence, reports, or memoranda which are only the opinions, theories, or conclusions of the attorney or the attorney's legal staff" 22 O.S.Supp.2000, § 2002(E)(8). While the proceedings sought to be sealed in this case, i.e. an original action in the Oklahoma Supreme Court, are not subject to the Criminal Discovery Code, the Code's provision for selective sealing may accomplish the goal of protecting information.

v.

115 In the present case, the records of money budgeted for and paid to defense counsel from the Oklahoma County District Court Fund have been a matter of public record since the date of the first payment in October 1999, on file in the office of the Oklahoma County District Court Clerk, and available for inspection and copying by the general public. Petitioner has not shown he qualifies for one of the specific exemptions in the Open Records Act. Petitioner's complaint that portions of Judge Jackson's Order denying his request for additional funding contained criticism of defense counsel can be excised if it is determined that disclosure would have a potential adverse effect on Petitioner's trial. This selective closure would be in keeping with the policy of the Open Ree-ords Act that any reasonably segregated portions of records containing exempt material be deleted and the remainder of the records be made available to the public. 51 O.S.Supp.2000, § 24A.5(2).

116 Petitioner's claim that disclosure of the amount of money budgeted and expended for his defense would "add to the public's hostility to Mr. Nichols and his defense team thereby compromising his right to a fair trial" is speculation at this stage of the proceedings and not sufficient grounds for closure. Any hostility by the public is a concern in so far as it affects the selection of a fair and impartial jury. An accused is not entitled to a juror who knows nothing about his case. McBrain v. State, 764 P.2d 905, 909 (Okl.Cr.1988). He is entitled to jurors who can fairly and impartially decide his case based on the evidence presented at trial. Id. The appropriate time for determining whether venire persons may properly sit as impartial jurors is during voir dire held at the beginning of the trial. Prospective jurors with preconceived opinions for or against a criminal defendant who cannot set aside those opinions or who have doubts about their ability to be impartial are to be excused from jury service. Patton v. State, 973 P.2d 270, 284 (Okl.Cr.1998), cert. demied, 528 U.S. 939, 120 S.Ct. 347, 145 L.Ed.2d 271 (1999).

117 Further, Oklahoma law provides for a change of venue if appropriate to ensure a fair trial. A change of venue is proper if the influences of the news media, either in the community at large or in the courtroom itself, pervade the proceedings, or when the entire cireumstances surrounding the trial indicate the defendant will not receive a fair trial, Allen v. State, 862 P.2d 487, 490 (Okl.Cr.1993). See also 22 O.S.1991, § 561 ("Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.")

118 Prejudice from exposure to adverse pretrial publicity must be shown by clear and convincing evidence that jurors were specifically exposed to the publicity and that the gccused was thereby prejudiced. Robison v. State, 677 P.2d 1080, 1088 (Okl.Cr.), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). Thus, if Petitioner can show that prospective jurors in Oklahoma County are unable to be fair and impartial due to media coverage about the fees paid to defense counsel, a change of venue may be had to a county in the same judicial district where the public opinion is less persuasive. See Childress v. State, 1 P.3d 1006, 1015 (Okl.Cr.2000).

[ 19 At the heart of the issue before us is a contract dispute. The pleadings involved in that controversy do not contain any information, which might be considered attorney "work product" or privileged information. There is no discussion of potential witnesses or client strategies. However, detailed billing statements by an attorney to the Court could, in fact, disclose such information and should be considered by any court deciding what records should or should not be sealed. If such information were to be included in pleadings submitted to the court, such portions could be selectively sealed under 22 O.S.Supp.2000, §§ 2002(E)(1) & (8).

120 CERTIFIED QUESTION: The Oklahoma State Supreme Court has certified a Question of Law as follows:

"whether defendant/petitioner's quest for withholding from public knowledge the entire course of this litigation should be upheld."

121 QUESTION ANSWERED: The issues of closure of hearings and the sealing or records is a question of law, which in each instance is driven by the facts and cfreum-stances of the particular case. The issue cannot be answered in a carte blanche approach and should be addressed on an ongoing basis based upon the current status of the proceeding. In Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) and United States v. McVeigh, 918 F.Supp. 1452 (W.D.Okla.1996), a hierarchy of rights is set forth flowing from our constitutions and statutory enactments. The right of access protected by the First Amendment to the U.S. Constitution is a qualified right. When that qualified right conflicts with the constitutional guarantees afforded to a person charged in a eriminal proceeding, it is the rights of the individual which must be protected. The cases relied upon in this opinion set out the analysis to be utilized to ensure the balancing of those rights, which will ensure a criminal defendant is afforded his constitutional rights to counsel, due process and fair trial.

122 Applying the criteria set forth in Press-Enterprise and McVeigh at this point in the eriminal prosecution, Petitioner's right to a fair trial does not require wholesale closure of the proceedings before the Oklahoma State Supreme Court or sealing of the records filed in that Court.²

CHAPEL, J.: CONCUR IN PART/DISSENT IN PART. STRUBHAR, J., LILE, J., and LINDLEY, J.,³ CONCUR.

1 ._ In McVeigh, Judge Matsch stated:

The appearance of a defendant in response to a criminal complaint, an indictment, or an information begins the adversary process directed towards determining the sufficiency of the government's evidence to establish the factual elements of the charged offense beyond a reasonable doubt. That determination is ordinarily made by a jury after a public trial, as required by the Sixth Amendment, conducted according to procedures and limitations assuring fundamental fairness with the guarantee of due process of law in the Fifth Amendment.

Although the Sixth Amendment protects the right of the accused to a public trial, it has long been clear that the public and the press also have a right to attend criminal trials. No integral part of the trial, including jury selection, can be closed to the public ... (internal citations omitted).

918 F.Supp. at 1459.

2 . In Press-Enterprise, the United States Supreme Court stated:

The presumption [of openness] may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

478 U.S. at 9, 106 S.Ct. at 2741, quoted in McVeigh, 918 F.Supp. at 1463.