COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
IN RE: TIMES-WORLD CORPORATION OPINION
PER CURIAM
Record No. 1145-97-3 AUGUST 12, 1997
UPON A PETITION FOR A WRIT OF MANDAMUS
(D. Stan Barnhill; Philip W. Parker; Woods,
Rogers & Hazlegrove, on brief), for
petitioner.
(Richard Cullen, Attorney General; Gregory E.
Lucyk, Senior Assistant Attorney General;
Peter R. Messitt, Senior Assistant Attorney
General, on brief), for respondent.
(Terry N. Grimes; Malcolm McL. Doubles; King,
Fulghum, Snead, Nixon & Grimes, on brief),
for Earl Conrad Bramblett.
Times-World Corporation ("Times-World") seeks access to the
videotape of testimony and documents admitted into evidence in
the competency hearing conducted on May 6, 1997, in the matter of
Commonwealth v. Earl Conrad Bramblett, a criminal proceeding
currently pending in the Roanoke County Circuit Court. The trial
court ordered the competency hearing closed to the public,
including the media. Times-World, publisher of The Roanoke
Times, contends that the trial court's order abridges the freedom
of the press in violation of the First Amendment of the United
States Constitution and Article I, § 12 of the Virginia
Constitution. Because we find that the trial court improperly
denied Times-World access to the hearing and documents, we grant
the petition for the writ of mandamus.
I. FACTUAL AND PROCEDURAL BACKGROUND
Earl Conrad Bramblett is charged with the murders of Blaine
and Teresa Hodges and their two children, Winter and Anah Hodges.
The matter is scheduled to be tried in the Roanoke County
Circuit Court on October 14, 1997. Following his indictment for
these crimes, Bramblett filed a motion for change of venue and a
notice of intent to present an insanity defense.
A competency hearing was scheduled for May 6, 1997, at 2:00
p.m. On the afternoon of Friday, May 2, 1997, Bramblett filed a
motion to exclude the media from the competency hearing. A
hearing on Bramblett's motion was held on May 6, 1997, at 9:00
a.m. At the hearing, Bramblett presented no evidence in support
of his motion to exclude the media. He merely contended that his
right to a fair trial would be prejudiced, arguing that the
evidence presented at the hearing would not likely be admitted at
trial and that the nature of the case rendered voir dire an
inadequate means of producing a fair and impartial jury to hear
the case. The Commonwealth neither opposed the motion nor
presented any evidence.
The trial court granted the motion on the ground that there
was a "basis in law" for closure. The court took notice of all
the proceedings that had been held in the matter as of that date,
including the fact that Bramblett had filed a motion for change
in venue. The court expressed concern about being able to seat
an impartial jury and noted that the evidence to be addressed at
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the competency hearing would be inadmissible at trial. The court
also felt that press access to a hearing where confidential
information about Bramblett would be disclosed would compromise
Bramblett's physician-patient privilege. The trial court did not
expressly address in its oral ruling any less restrictive
alternatives to closure, including voir dire.
That same afternoon, Times-World presented an oral motion to
this Court requesting an order postponing the competency hearing.
We denied the motion but ordered the trial court to retain the
videotape of the hearing as a potential remedy for Times-World.
II. THE AVAILABILITY OF MANDAMUS AS A REMEDY
Bramblett, citing Morrissette v. McGinniss, 246 Va. 378, 436
S.E.2d 433 (1993), asserts that mandamus is unavailable to
Times-World because mandamus is not a substitute for appeal and
cannot be applied retroactively to correct a completed wrong.
Morrissette, however, did not involve the closure of a criminal
proceeding, but, rather, a citizen's attempt, through a petition
for writ of mandamus, to challenge the creation of a public
service authority. See id. at 381, 436 S.E.2d at 434.
"[M]andamus rather than appeal is the proper means to
challenge the closure order in a pending criminal trial." In re
Worrell Enters., Inc., 14 Va. App. 671, 675, 419 S.E.2d 271, 274
(1992) (emphasis added); accord Baltimore Sun Co. v. Goetz, 886
F.2d 60, 63 (4th Cir. 1989) ("Mandamus, not appeal, 'is the
preferred method of review for orders restricting press activity
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related to criminal proceedings.'") (quoting In re Washington
Post, 807 F.2d 383, 388 (4th Cir. 1986) (emphasis added)).
Furthermore, the relief Times-World seeks, or a reasonable
substitute therefor, is still available. We directed the trial
court to retain a videotape of the competency hearing in the
event that the writ was granted. Moreover, "both the parties and
the trial judges are entitled to a decision on the merits."
Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592, 281
S.E.2d 915, 925 (1981) (noting that the criminal proceedings had
been terminated by the time of the Court's review). The Supreme
Court "has frequently recognized . . . that its jurisdiction is
not necessarily defeated by the practical termination of a
contest which is short-lived by nature. If the underlying
dispute is 'capable of repetition, yet evading review,' it is not
moot." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563
(1980) (citations omitted); see In re Times-World Corp., 7 Va.
App. 317, 323-24, 373 S.E.2d 474, 477 (1988) (holding that a
petition for writ of mandamus was not moot despite the fact that
1
the trial had concluded by the time of appellate review).
Morrissette is factually distinguishable from this case and
is not controlling. Accordingly, we decline to deny the petition
for writ of mandamus on the basis of Morrissette.
1
Both 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), originated as
petitions for writs of mandate in state court.
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III. RIGHT OF ACCESS TO A CRIMINAL COMPETENCY HEARING
In Richmond Newspapers, the United States Supreme Court
ruled that the press has a First Amendment right to attend
criminal trials. See 448 U.S. at 580. This qualified right of
access was subsequently extended to juror voir dire, see
Press-Enterprise I, 464 U.S. at 501, and preliminary hearings.
See Press-Enterprise II, 478 U.S. at 1. In Richmond Newspapers,
222 Va. at 588, 281 S.E.2d at 922, the Virginia Supreme Court
recognized a qualified right of press access to suppression
hearings and motions in limine under Article I, § 12 of the
Virginia Constitution.
A First Amendment right of access exists where (1) "the
place and process have historically been open to the press and
general public," Press-Enterprise II, 478 U.S. at 8; and
(2) "public access plays a significant positive role in the
functioning of the particular process in question." Id.; see In
re Worrell, 14 Va. App. at 676, 419 S.E.2d at 274 (applying
Press-Enterprise II test to claim of access under Virginia
Constitution); cf. Richmond Newspapers, 222 Va. at 586, 281
S.E.2d at 921-22 (finding no history to review with regard to
suppression hearings and focusing, instead, on the importance of
public access). With regard to historical access, "the
'experience' test of Globe Newspaper [Co. v. Superior Court, 457
U.S. 596 (1982)], does not look to the particular practice of any
one jurisdiction, but instead 'to the experience in that type or
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kind of hearing throughout the United States . . . .'" El Vocero
de P. R. v. Puerto Rico, 508 U.S. 147, 150 (1993) (citation
omitted). "If the particular proceeding in question passes these
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tests of experience and logic, a qualified First Amendment right
of public access attaches." Press-Enterprise II, 478 U.S. at 9.
"In the first inquiry, the court asks whether the type of
proceeding at issue has traditionally been conducted in an open
fashion." In re Washington Post, 807 F.2d at 389. Although we
have no recorded tradition in Virginia regarding public access to
competency hearings, courts in other jurisdictions have favored a
qualified right of access to such proceedings. In Westchester
Rockland Newspapers Corp. v. Leggett, 399 N.E.2d 518 (N.Y. 1979),
applying state law, the Court of Appeals of New York found that
the media had been improperly excluded from a competency hearing.
In Miami Herald Publ'g Co. v. Chappell, 403 So. 2d 1342, 1344
(Fla. Dist. Ct. App. 1981), a Florida court found a First
Amendment right of access to a criminal competency hearing. See
also Society of Prof'l Journalists v. Bullock, 743 P.2d 1166,
1178 (Utah 1987) (finding qualified right of access to competency
hearing).
We have found no appellate decision, and none has been cited
to us, denying the press a qualified right of access to criminal
competency hearings. To the contrary, the recent trend favors
access. Accordingly, we find the "experience" throughout the
United States favors access, thus satisfying the first prong of
the Press-Enterprise II test. See El Vocero de P. R., 508 U.S.
at 150.
We must now determine whether the interest in public access
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justifies granting a qualified right to attend criminal
competency hearings.
"[T]he public's interest in the conduct of the judicial
system may be even more acute when pretrial hearings are
involved." Richmond Newspapers, 222 Va. at 587, 281 S.E.2d at
922. In finding a state constitutional right of access to
suppression hearings and motions in limine, the Virginia Supreme
Court noted the importance of the public's ability to judge for
itself whether the proper balance was being struck between the
rights of the accused and the rights of the community. See id.
The Court concluded that "pretrial suppression hearings are as
important to our criminal justice system as the trial itself, and
to allow the public to view the trial without any knowledge of
what has taken place previously would make the right of access
granted in Richmond Newspapers[, 448 U.S. 555,] a hollow one."
Id. at 588, 281 S.E.2d at 922.
The jurisdictions that have addressed this specific issue
have recognized the importance of press access to competency
hearings. The court in Miami Herald noted that "'if the public
is routinely excluded from all proceedings prior to trial, most
of the work of the criminal courts will be done behind closed
doors.' Competency proceedings [like other pretrial proceedings]
may also postpone or terminate the need for trial." Miami
Herald, 403 So. 2d at 1345 (quoting Westchester Rockland
Newspapers, 399 N.E.2d at 523).
Given [the] strong public policy against
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trying an incompetent person for a criminal
offense, it seems plain that the proceeding
at which competency is determined is a
significant one in the criminal process. The
public should be entitled to scrutinize the
implementation of this policy, unless strong
countervailing considerations warrant
closure.
Society of Prof'l Journalists, 743 P.2d at 1178.
Public access can play a significant positive role in
criminal competency hearings, thus satisfying the second prong of
the Press-Enterprise II test. A competency hearing can postpone,
sometimes indefinitely, the trial of an accused. Citizens of the
Commonwealth have a right to know that the incompetent are not
tried and that the competent do not evade trial. Because
criminal competency hearings pass "these tests of tradition and
logic," Press-Enterprise II, 478 U.S. at 9, we hold that both the
First Amendment to the United States Constitution and Article I,
§ 12 of the Virginia Constitution grant the media a qualified
right to attend these proceedings.
Once a First Amendment right attaches, access to a
proceeding can only be denied by showing "a 'compelling
governmental interest' and the denial must be 'narrowly tailored
to serve that interest.'" In re Times-World, 7 Va. App. at 325,
373 S.E.2d at 478 (quoting Globe Newspaper, 457 U.S. at 606-07).
The court ordering closure must make "specific . . . findings
that (1) there is a substantial probability that the defendant's
right to a fair trial will be prejudiced by publicity; (2) there
is a substantial probability that closure would prevent that
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prejudice; and (3) reasonable alternatives to closure cannot
adequately protect the defendant's fair trial rights." In re
Charlotte Observer, 882 F.2d 850, 853 (4th Cir. 1989) (citing
Press-Enterprise II, 478 U.S. at 14). "[T]he trial judge shall
articulate on the record his findings that the evidence supports
the moving party's contention that an open hearing would
jeopardize the defendant's fair trial rights . . . ." Richmond
Newspapers, 222 Va. at 590, 281 S.E.2d at 924 (emphasis added).
While adverse publicity might impair the defendant's ability
to receive a fair trial, the mere "risk of prejudice does not
automatically justify refusing public access to hearings on every
motion to suppress." Press-Enterprise II, 478 U.S. at 15. "The
First Amendment right of access cannot be overcome by the
conclusory assertion that publicity might deprive the defendant
of [the right to a fair trial]." Id. "[T]he burden [is] on the
moving party to show that an open hearing would jeopardize the
defendant's right to a fair trial." Richmond Newspapers, 222 Va.
at 590, 281 S.E.2d at 924 (citing Gannett Co. v. DePasquale, 443
U.S. 368, 401 (1979)). Furthermore, even if a substantial
probability exists that publicity will impair the defendant's
right to a fair trial, the court must still review alternatives
to closure that will protect the defendant's rights. See In re
Charlotte Observer, 882 F.2d at 853.
The intervenor has "the burden of showing that reasonable
alternatives to closure are available." Richmond Newspapers, 222
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Va. at 590, 281 S.E.2d at 924. The Supreme Court has identified
voir dire as an effective alternative a trial court can employ to
"identify those jurors whose prior knowledge of the case would
disable them from rendering an impartial verdict."
Press-Enterprise II, 478 U.S. at 15. The court in In re
Charlotte Observer remarked that the trial court gave "much too
short shrift to the capability of jury voir dire to guard against
the potential prejudice of pretrial publicity . . . . Voir dire
is of course the preferred safeguard against this particular
threat to fair trial rights." In re Charlotte Observer, 882 F.2d
at 855. The court then noted the efficacy of voir dire in cases
involving the Watergate defendants, the Abscam defendants, and
John DeLorean. See id.; see also Thomas v. Commonwealth, 244 Va.
1, 11, 419 S.E.2d 606, 611 (finding, in denying defendant's
motion for change in venue, that voir dire is the best tool for
uncovering the truth about possible bias resulting from pretrial
publicity), cert. denied, 506 U.S. 958 (1992).
Bramblett argues that allowing Times-World access to the
competency hearing would jeopardize his right to a fair trial.
However,
[e]vidence relevant and admissible to
establish the defendant's capacity to
understand the legal proceedings and to
assist his attorney would ordinarily reveal
little or nothing about his possible guilt of
the crimes charged. Nor is it foreseeable
that public disclosure of the proof would
frustrate the purpose of such a hearing.
Westchester Rockland Newspapers, 399 N.E.2d at 524. "Statements
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concerning the defendant's guilt, innocence or sanity at the time
of the offense are not material because they relate to different
issues. It is therefore unlikely that testimony jeopardizing a
defendant's right to a fair trial would be elicited." Miami
Herald, 403 So. 2d at 1344; see Society of Prof'l Journalists,
743 P.2d at 1178 (noting that "pretrial competency hearings
present fewer inherent dangers of prejudice than preliminary
hearings").
The trial court was concerned with the implications of
access on Bramblett's physician-patient privilege. However,
"[t]here exists . . . no physician-patient privilege in a
criminal prosecution in Virginia. The common law recognized no
such privilege in either civil or criminal proceedings. While
Virginia has enacted a statutory privilege, it is expressly
confined to civil proceedings." Gibson v. Commonwealth, 216 Va.
412, 414, 219 S.E.2d 845, 847 (1975), cert. denied, 425 U.S. 994
(1976) (citation omitted). Even in civil matters, however, the
privilege is waived if the mental condition of the patient is at
issue. See Code § 8.01-399(B). It would follow, by analogy,
that no physician-patient privilege supersedes the media's
constitutional right to attend such a proceeding, because the
defendant's mental condition is at issue in a criminal competency
hearing.
The parties presented no testimony or physical evidence in
support of the motion to close the competency hearing. Thus, the
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trial court had no evidence on which to make findings of fact in
support of its order of closure. Furthermore, while the court
noted its concern about seating an impartial jury, it did not
expressly address voir dire or other reasonable alternatives to
closure. Bramblett failed to establish a substantial probability
that his right to a fair trial would be prejudiced by allowing
Times-World access to the videotape of the competency hearing.
Further, we are satisfied that properly conducted voir dire is a
reasonable available alternative to closure. Accordingly, we
hold that the trial court erred by denying Times-World access to
the competency hearing.
IV. ACCESS TO DOCUMENTS ADMITTED AT COMPETENCY HEARING
The same analysis employed to determine whether the media
has a right of access to a criminal competency hearing is
applicable to determine media access to documents that were
submitted into evidence therein. See In re Worrell, 14 Va. App.
at 676, 419 S.E.2d at 274; see also In re Washington Post, 807
F.2d at 390 ("[T]he First Amendment right of access applies to
documents filed in connection with plea hearings and sentencing
hearings in criminal cases, as well as to the hearings
themselves."); In re New York Times Co., 828 F.2d 110 (2d Cir.
1987) (finding that the right of access extended to motions
papers submitted by a defendant seeking to suppress evidence);
Associated Press, Inc. v. United States Dist. Court, 705 F.2d
1143, 1145 (9th Cir. 1983) (finding First Amendment right of
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access extends to "pretrial documents in general").
We have held that the media does not have a constitutional
right of access to documents produced by parties through
discovery in a criminal matter. See In re Worrell, 14 Va. App.
at 680, 419 S.E.2d at 277. The documents here, however, are not
unfiled discovery documents but were admitted into evidence in a
proceeding that should have been open to the public. Cf. People
v. Adkins, 514 N.W.2d 148, 150 (Mich. 1994) (finding no qualified
right of access to criminal competency report not admitted into
evidence). Accordingly, In re Worrell is not controlling. We
hold that our rationale allowing Times-World access to the
videotape of the competency hearing is equally applicable to the
documents admitted into evidence therein.
V. CONCLUSION
In summary, we hold that the First Amendment of the United
States Constitution and Article I, § 12 of the Virginia
Constitution grant a qualified right of access to criminal
competency hearings and documents admitted into evidence therein.
Bramblett presented no evidence showing a substantial
probability that his right to a fair trial would be prejudiced by
Times-World's access to the videotape of the proceeding or to the
documents admitted therein. Likewise, the trial court made no
findings of fact in support of the closure order, nor did it
sufficiently consider the reasonable alternatives to closure,
including voir dire. Accordingly, the application for a writ of
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mandamus is granted.
Granted.
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