Rockdale Citizen Pub. Co., Inc. v. State

468 S.E.2d 764, 266 Ga. 579, 24 Media L. Rep. (BNA) 1957, 96 Fulton County D. Rep. 1332, 1996 Ga. LEXIS 154

• Court: Supreme Court of Georgia
• Decided: April 15, 1996
• Docket: S96A0603
• Status: Published

Opinions

Hunstein, Justice.

In Rockdale Citizen Pub. Co. v. State of Ga., 266 Ga. 92 (463 SE2d 864) (1995), this Court reviewed an order of the Superior Court of Rockdale County closing to the press and public all pretrial evidentiary hearings in the pending capital prosecution against Marvin Earl Turner, Jr. A majority of this Court found that there was evidence adduced to support the superior court’s conclusion that a clear and present danger existed to Turner’s right to a fair trial. Id. at 93 (1). However, because the superior court’s order failed to articulate fully its consideration of alternatives to closure, see R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982), this Court vacated the order and remanded the case. On remand, the superior court granted Turner’s motion for change of venue and directed the case to be heard by a jury selected in Hall County. However, the superior court also ordered closure of all pre-trial evidentiary hearings to everyone except trial participants.¹ The publisher of the local daily newspaper, The Rockdale Citizen, appeals to this Court, pursuant to Lumpkin, supra at (2). We reverse the superior court because its closure ruling clearly violates this Court’s holding in Lumpkin.

Lumpkin mandates that a motion for closure

be supported at the hearing by the movant by evidence constituting “clear and convincing proof’ that no means available other than closure of the hearing will serve to protect the right of the movant.

Id. at 580 (5). A review of the record and the superior court’s order establishes uncontrovertedly that there was no evidence adduced in this case to support the superior court’s finding that there is a “clear and present danger” that Turner will not receive a fair trial before the jurors from the changed-venue county. Instead, the superior court based its finding on speculation regarding the media coverage that might occur in Hall County to which Hall County residents might be exposed and assumed that this speculative coverage would be so inflammatory that Turner’s right to a fair trial would be prejudiced in the absence of closure.²

Assumptions and speculation cannot provide the “clear and convincing proof’ required by Lumpkin to justify closure. “Clear and convincing proof’ necessarily involves concrete, tangible evidence that can be made part of and attached to the record to enable appellate review of a trial court’s decision on an issue of constitutional magnitude. “Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.” (Emphasis supplied; footnote omitted.) Press-Enterprise Co. v. Superior Court of California, 464 U. S. 501, 509 (104 SC 819, 78 LE2d 629) (1984). Assumptions and speculation can never justify the infringement on First Amendment rights which the closure of criminal proceedings creates.

The superior court explained its closure and venue change rulings by stating that as a result thereof, “the Defendant will have the benefit of a jury pool that will not be privy to pre-trial evidentiary hearings, arguments, and rulings.” The Federal and Georgia Constitutions do not entitle a defendant to a jury wholly ignorant of all aspects of the crimes charged and legal proceedings brought against him; rather, a defendant is entitled only to a fair and impartial jury that can render a verdict based solely on the evidence presented in court. See Irvin v. Dowd, 366 U. S. 717, 722-723 (81 SC 1639, 6 LE2d 751) (1961); Chancey v. State, 256 Ga. 415, 425 (349 SE2d 717) (1986). A criminal defendant’s right to a fair trial is not placed in clear and present danger by media coverage of pre-trial hearings that provide the public with accurate, responsible, non-inflammatory reports of the matters raised in those hearings: “pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial.” Nebraska Press Assn. v. Stuart, 427 U. S. 539, 554 (96 SC 2791, 49 LE2d 683) (1976).

Given the change of venue in this case, there exists no evidence to support closure of all pre-trial evidentiary hearings in this capital prosecution, wherever held. The superior court’s order closing all pretrial evidentiary hearings in this case is accordingly reversed.

Judgment reversed.

All the Justices concur, except Carley and Thompson, JJ., who concur specially.

1 The superior court’s order provides for closure regardless of whether venue is changed before or after completion of all pre-trial evidentiary hearings.

2 The superior court’s order contains, inter alia, the following statements: “Extensive and prejudicial publicity can overflow the boundaries of Rockdale County and infect potential jurors in counties where venue may potentially be changed”; “the Atlanta [media] might well take notice and begin reporting on the pre-trial hearings . . . [and t]he resulting pretrial publicity could infect potential jurors in a vastly larger area than Rockdale County”; “the possibility is very real that the new venue would become infected by the extensive and inflammatory coverage by the Rockdale media”; “[t]he press from the local media of the county of change of venue could obtain the information printed in the Rockdale media and disseminate it... , thereby infecting the potential jurors with highly inflammatory information”; “[i]t would be disingenuous to believe that the media outlets in the new venue would not seize upon the juicy details previously covered by the Rockdale County media and immediately run articles based [thereon].” (Emphasis supplied.)