State ex rel. Feeney v. District Court of the Seventh Judicial District

ROSE, Justice.

We are concerned with two petitions for writs of prohibition. In one, Defendant Howell asks this court to enter its order prohibiting enforcement of a district court order1 which directs his preliminary hearing, and that of Stephen E. Little, to be open to the public. The Petition for a Writ of Mandamus was granted by District *1261Judge Spangler on the petition of Harri-scope Broadcasting Corporation, a radio and television company with stations at Casper, Wyoming. The writ of mandamus nullifies an order of Court Commissioner Feeney closing the preliminary hearings of the aforesaid defendants, who are charged with first-degree murder. The second petition for a writ of prohibition is filed by Court Commissioner Feeney, who seeks the same relief as Howell.

In his decision letter, Commissioner Fee-ney said:

“It is clear to me that at the preliminary hearing level there are many dangers that would arise that may seriously affect the defendants’ right to an impartial jury. It is noted that the hearing of November 7, 1979, was conducted by written Motions, oral arguments of counsel and inquiry from the Bench and did not include the introduction of evidence or testimony. Therefore, the record of the hearing and court file as it stands form the basis for the facts and conclusions of this decision.
“The Court file shows an Affidavit of a member of the Casper Police Department. This Affidavit and the information contained is to a very large extent, hearsay. The Affidavit, paragraphs 7 and 8 make reference to inculpatory and possibly exculpatory statements of the defendants and each of them. Inasmuch as the County Court has no jurisdiction to determine constitutionality in suppression hearings, many of these statements or portions of same, may well be inadmissa-ble [sic] at a trial on the main issue. Because the Wyoming Rules of Evidence do not apply at the preliminary hearing level (and because the County Attorney refused the suggestion of the Court sua sponte to apply said Rules), the Court cannot exclude these statements at the preliminary hearing. These statements, if disseminated may well constitute prejudicial pretrial publicity making it difficult or perhaps impossible to empanel an impartial jury in the Natrona County District Court.
“The obvious danger is potentially making this case reversable [sic] on appeal if subsequent suppression motions would exclude the statements after they have in fact been widely disseminated. The defendants at that point have the difficult (and almost impossible) burden of showing the effects and degree of prejudice on the fairness of the trial. I find, therefore, that the dissemination of information from the preliminary hearing and its record would create a clear and present danger to the fairness of the trial.
“I strongly believe that if the hearing were open, the only effective method of preventing dissemination of hearsay of evidence subject to suppression or admis-sability [sic] would be to order its publication ceased. This surely would be a previous restraint on the media’s First Amendment rights. I do not consider that alternative reasonable or desirable. I am well aware of Chief Justice Raper’s dissent in Williams [Williams v. Stafford, 589 P.2d 322 (Wyo.1979)] however, in light of the majority in Gannett, [sic] [Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)]. The County Attorney who resisted defendant’s [sic] Motions, have [sic] not offered any reasonable alternatives available to the Court sua spante [sic] to prevent dissemination of damaging testimony otherwise inadmissable [sic] under the Wyoming Rules of Evidence. I find therefore, the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means. It is hereby ordered that the record and copies of this proceeding and the subsequent preliminary hearing, together with this letter and the Court’s file be sealed by the Clerk of the Court and shall only be opened upon my order or following the completion of the trial or earlier if consistent with trial fairness. “This decision is based solely upon my concern for the pretection [sic] of the defendants’ rights in the County Court.”

The District Court Judge said in his decision letter, upon which he predicated the writ of mandamus:

*1262“In Williams v. Stafford, [Wyo., 589 P.2d 322 (1979)] The Wyoming Supreme Court set standards for the guidance of our Courts. The Supreme Court stated that access to court proceedings should be limited only in exceptional circumstances
“The Standard further provides that the hearing may be closed only if the dissemination of information from the pretrial proceeding would create a clear and present danger to the fairness of the trial and the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means. The record here is lacking in evidence that the dissemination of information from the pretrial proceeding would create a clear and present danger to fairness of the trial. There is nothing in the record to show the ‘exceptional circumstances’ required. . . .”

We will hold that the dissemination of some documentary evidence of record in the case, and probable testimony pertaining thereto, presented a threat to the defendants’ right to a fair trial sufficient to confer upon Commissioner Feeney discretion to consider closing the pretrial hearing.2 As we discuss below, since mandamus is not available to control the exercise of discretion of an inferior tribunal, we will conclude that the district court improperly utilized the mandamus remedy to interfere with Commissioner Feeney’s duties

The two prohibition cases filed here by Feeny and Howell were consolidated by order of this court. An order has also been entered directing that all proceedings be stayed below until the issues raised by the petitions for writs of prohibition have been resolved.

The issues in the consolidated cases are:

(1) Whether the district court has subject-matter jurisdiction to issue the writ or — whether the district court exceeded its jurisdiction when it so acted; and
(2) Whether Harriscope has standing to bring the mandamus action.3

This court ordered the briefing of two other issues:

(1) Whether Commissioner Feeney has standing to initiate in this court an original proceeding in prohibition; and
(2) Whether the decision of the district court should have been brought here by direct appeal rather than a petition for a writ of prohibition.

Subject-Matter Jurisdiction and Closure Requirements

The Nature of Mandamus

Question : Under the circumstances of this case, does the district court have sub*1263ject-matter jurisdiction and/or did it exceed its jurisdiction when it directed Court Commissioner Feeney to open to the public the preliminary hearings in the Howell and Little murder cases? Ancillary to this query is an identification of constitutional rights and interests of those concerned, as well as a response to the issue of whether or not Commissioner Feeney had discretion — under the particular facts of this case — to consider closing the hearing.

In aid of this inquiry, we must explore the offices of the writ of mandamus. Section 1-30-102, W.S.1977, provides:

“The writ [mandamus] can only be issued by the supreme court or the district court. It may require an inferior tribunal to exercise its judgment or to proceed to discharge any of its functions but it cannot control judicial discretion.” (Bracketed matter and emphasis supplied.)

In Williams v. Stafford, Wyo., 589 P.2d 322, 324 (1979), we said:4

“Writs of Mandamus, on the other hand, may direct an inferior tribunal to exercise its judgment but it may not control judicial discretion. Section 1-30-102, W.S.1977. The function of mandamus is to command the performance of a ministerial duty which is plainly defined and required by law. Section 1-30-101, W.S. 1977; and Lebeau v. State ex rel. White, Wyo., 377 P.2d 302, 303 (1963). See, Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425, 429, fn. 11 (1978), U.S. appeal pending 434 U.S. 241, 98 S.Ct. 546, 54 L.Ed.2d 506. ...” (Emphasis supplied.)

In State, ex rel. Marsh v. State Board of Land Commissioners, 7 Wyo. 478, 53 P. 292 (1898), we refused the mandamus vehicle to force the State Board of Land Commissioners to honor the petitioner’s request to have a lease cancelled and reissued to him. In holding that mandamus would not lie, we cited an earlier case for the following proposition:

“. . . ‘A subordinate body can be directed to act, but not how to act in a matter as to which it has the right to exercise its judgment; and where it is *1264vested with power to determine a question of fact the duty is judicial, and, however erroneous its decisions may be, it cannot be compelled by mandamus to alter its determination;’ . . . 53 P. at 295.

This court has, therefore, recognized that a proper function of the writ of mandamus is to compel a lower court or subordinate administrative tribunal to perform such ministerial functions as it is required by law to do, but the writ cannot be employed to review a decision where the exercise of judicial or administrative discretion is involved.

The Nature of a Closure Decision

The next question is: What kind of a decision was Commissioner Feeney obliged to make when he ruled on the closure motion? Was it the kind of decision in which statutory and/or case law dictated the outcome and with respect to which he had no options? — or—did he have some judicial discretion to exercise? If the Commissioner’s obligation falls within the latter category — a higher court cannot utilize mandamus to furnish the answer to the question which the Commissioner contemplated and must — by employing his judicial discretion — decide. If it falls within the former category, then mandamus is proper. § 1-30-102, supra; Williams, supra; and Marsh, supra.

We spoke of the nature of closure decision-making in Williams, supra. There we said:

“. . . When . . . there is a challenge to the court’s order by a representative of the public, then, subject to appellate review, the district court, if the proceeding had been held in a minor court, or this court, if the proceeding had been originally heard in the district court, must determine whether the originating court had abused its discretion .
“The resolving of this issue, when the defendant has yet to proceed to trial, involves the delicate balancing of the public’s right of access to information, on the one hand, and the defendant’s right to a fair trial on the other.” (Emphasis supplied) 589 P.2d at 327.

We could not have given a more definitive answer to the question of whether or not closure involves the utilization of judicial discretion. It does!!!

In Williams, supra, we adopted standards to which the justice of the peace (court commissioner in this case) is required to conform in a closure case. We said, in adopting the American Bar Association Standards:

“ ‘Except as provided below, pretrial proceedings and their record shall be open to the public, including representatives of the news media. If at the pretrial proceeding testimony or evidence is adduced that is likely to threaten the fairness of a trial, the presiding officer shall advise those present of the danger and shall seek the voluntary cooperation of the news media in delaying dissemination of potentially prejudicial information by means of public communication until the impaneling of the jury or until an earlier time consistent with the fair administration of justice. The presiding officer may close a preliminary hearing, bail hearing, or any other pretrial proceeding, including a motion to suppress, and may seal the record only if
“ ‘(i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and
“ ‘(H) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.
“ ‘The defendant may move that all or part of the proceeding be closed to the public (including representatives of the news media), or, with the consent of the defendant, the presiding officer may take such action sua sponte or at the suggestion of the prosecution. Whenever under this rule all or part of any pretrial proceeding is held in chambers or otherwise closed to the public, a complete record shall be kept and made available to the public following the *1265completion of trial or earlier if consistent with trial fairness.’ ”
“To this standard we would add several further requirements.
“The portion of the pretrial proceeding involved in the determination of closure shall, itself, be closed to the public. Otherwise, there would be no meaningful way of ascertaining whether or not the failure to close the pretrial proceeding would create a ‘clear and present danger to the fairness of the trial,’ nor would there be an effective way of deciding whether or not there exists a reasonable alternative to closure. A record of this preliminary determination shall be kept, and the factual basis for the determination upon which closure is predicated shall be made apparent therein. . .” 589 P.2d at 326.

Even though decision-making on the issue of clear and present danger to defendants’ fair-trial rights would appear to call for the commissioner to exercise judicial discretion in all cases, it conceivably could be argued that — in a mandamus matter such as that with which we are here concerned — the district court could entertain a petition for a writ of mandamus to examine the record of the in camera proceedings for the purpose of ascertaining whether or not there were sufficient facts of record upon which to exercise discretion. In other words, if, upon district court inquiry, the record revealed that neither the litigants nor the record demonstrated at the in camera pre-preliminary hearing, that there would be offered (at the preliminary hearing) matter which would

“ ‘create a clear and present danger to the fairness of the trial, and . [if] the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.’ ” Williams, supra, at 589 P.2d 326,

then the district court, in a mandamus action, could, indeed, order the preliminary hearing opened to the public. Why? Because — there being no evidence of a fair-trial'threat — the commissioner’s duty to open the hearing according to the directives of Williams is relegated to a ministerial function which mandamus will, indeed, reach. § 1-30-102, supra; Williams, supra; and Marsh, supra.

But that is not the situation here. We have examined the record in this case with great care. We find, as a matter of law, that there was and is documentation in the record, alluded to in Commissioner Feeney’s decision letter, supra, which, while acceptable under the liberal rules that pertain to a preliminary hearing, is such matter as may or may not be admissible at the trial upon the issue of guilt. It is also clear to this court that in the event the aforesaid evidence were to be made public at the preliminary hearing and then excluded at the trial, it would very likely threaten the fairness of defendants’ trial.5

“. . . ‘[T]he dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, . . .’ ” Williams, supra, at 589 P.2d 326.

Harriscope’s Constitutional Rights and the Writ of Mandamus

Harriseope argues that this court is on infirm constitutional grounds when we say that a judicial officer has discretion to close a pretrial hearing if necessary to avoid a clear and present danger to the defendant’s ability to obtain a fair trial. We do not agree and it is our opinion that we satisfactorily disposed of that contention in Williams, supra. However, since Williams was decided, the United States Supreme Court issued an opinion which has sparked considerable controversy. Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Since Harriseope asserts both federal and state constitutional rights, we will address Harriscope’s constitutional arguments in light of Gannett, supra, and Williams, supra.

*1266Harriscope based its application for a writ of mandamus on the following claims:

“(1) The order of Respondent closing the preliminary hearing constitutes unwarranted censorship of the press in violation of the First Amendment to the Constitution.
“(2) The order impairs the Petitioner’s constitutionally guranteed [sic] rights to gather news and report the news.
“(3) The order abridges the public’s right to know.
“(4) The order violates Section 8, Article 1 of the Wyoming Constitution which provides that ‘all courts shall be open.’ “(5) The order violates the Sixth Amendment and Fourteenth Amendment rights to a public trial.
“(6) The order exceeds the jurisdiction of Respondent’s Court.”6

The constitutional rights of those concerned are these:

First: Harriscope’s right to be present at the pretrial hearings in question are the same as the public’s, Williams, supra, and citations to this proposition therein contained.

Second: We are not confronted with a First Amendment freedom-of-speech right in this case. The Commissioner’s closure order was not a prior restraint on freedom of speech, which is. presumed unconstitutional. Williams, supra, at 589 P.2d 325. In the cases which we consider here, we are not concerned with information in the possession of the news media. The problem here has to do with information which has been restrained and which the media seeks tó obtain — not information that it possesses. Williams, supra.

Third: Where the public’s access to pretrial proceedings is restrained, as it would be were Commissioner Feeney’s closure order given effect, the public (which we again emphasize includes the media) has no constitutional right under the First or Sixth Amendments to the United States Constitution or any corollary provisions of the Wyoming Constitution to have free access to such preliminary-hearing proceedings or to all information in the possession of the courts. Williams, supra, and citations therein contained. See, also, Gannett, supra. The majority in Gannett recognized— as we did in Williams, that the public has an “interest” in the Sixth Amendment guarantees for public trial, but this does not create a constitutional right on the part of the public.7

Fourth: The Sixth Amendment guarantee of right to a speedy and public trial8 inures to the protection of the defendant.

“. . . [I]ts guarantee, like the others enumerated, is personal to the accused. . . .” Gannett, supra, at 99 S.Ct. 2905, citing Faretta v. California, 422 U.S. 806, 848, 95 S.Ct. 2525, 2547, 45 L.Ed.2d 562 (1975).

Fifth: While the public has an admitted interest in the administration of justice during the pretrial proceedings, that interest is protected by the participants to the litigation in our adversary system of criminal justice. Gannett, supra.

Sixth: We recognize, as does the United States Supreme Court, that adverse pretrial *1267publicity can endanger the fair-trial rights of the defendant. Williams, supra. And, see Gannett, supra, citing Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). Cf. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

Gannett holds that in order to “safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. . ” (Citing Sheppard, supra)

The Gannett Court goes on to say:

“. . . And because of the Constitution’s pervasive concern for these due process rights, a trial judge may surely take protective measures even when they are not strictly and inescapably necessary.”

Seventh: The Sixth Amendment protections do not guarantee to the defendant the right to compel a private trial (Gannett, supra), and access to court proceedings should be limited only in exceptional circumstances (Williams, supra). The Sixth Amendment permits and even presumes open trials as a norm. Gannett, supra.

Accordingly, we reject Harriscope’s claims that Commissioner Feeney could not constitutionally possess discretion to close the pretrial hearing in order to insure a fair trial.

The Mandamus Question Summarized

Summarizing the discussion of whether or not mandamus in the district court is the proper way to reach the issue of the propriety of pretrial closure, we summarize as follows:

Mandamus cannot be utilized to overrule an inferior judicial tribunal’s decision where the decision calls for the exercise of judicial discretion. § 1-30-102, W.S.1977, supra; Williams, supra; and Marsh, supra. Under the facts of this case, as revealed by the record, and particularly with respect to the officer’s affidavit to which Commissioner Feeney draws attention in his decision letter, the Commissioner’s discretion must necessarily come into play on the issues of whether or not an open or closed hearing will serve to protect the fair-trial constitutional rights of the defendants and whether the prejudicial effect of this information upon trial fairness can be avoided by any reasonable alternative means. In other words, by reason of this affidavit and the potential for its normal utilization in ordinary preliminary-hearing affairs, the Commissioner must call upon his discretion to decide whether or not its introduction and attendant usage would

“ ‘create a clear and present danger to the fairness of the trial, and [if] the prejudicial effect of such information on the trial fairness cannot be avoided by any reasonable alternative means.’ ” Williams, supra, at 589 P.2d 326.

Since this is so, this discretion cannot be tested by mandamus unless the doctrine (Williams and Marsh, supra) and the statute (§ 1-30-102, W.S.1977) must submit to overriding constitutional rights of strangers to the pretrial proceedings. As we have indicated above — the public at large has no such rights and, therefore, Harriscope, whose rights are no greater than any other member of the public (Williams, supra), may not, in this case, reach the decision of Commissioner Feeney with a district court writ of mandamus directed against his closure order — an order which was formulated through the proper employment of his judicial discretion.

Is Prohibition the Proper Vehicle to Obtain Review by This Court of the District Court’s Action?

We conclude that the extraordinary writ of prohibition is the proper way to obtain review by this court of the district court’s intervention in the pretrial hearing.

We said in Williams, supra:

“. . . The function of a writ of prohibition is to prevent action and not to undo that which has already been done. ...” 589 P.2d at 324.

*1268In the instant matter, Feeney asks us to prohibit the district court from interfering in his decision-making function. We think this a proper area in which prohibition should function. We also said in Williams, supra:

“. . It is also important to note and emphasize that, other than in exceptional or extraordinary circumstances, the writ of prohibition is only available if the lower court does not have subject-matter jurisdiction or, having such jurisdiction, it exceeds the scope thereof. State ex rel. Weber v. Municipal Court of the Town of Jackson, Wyo., 567 P.2d 698, 699 (1977).” 589 P.2d at 324.

The writ of prohibition in this case meets the test since we have held that the issuance by the district court of its writ of mandamus against Commissioner Feeney was in excess of its subject-matter jurisdiction.

Standing of Commissioner Feeney and Defendant Howell

Standing has to do with whether or not the litigant has a legally recognizable interest which the law permits him to assert in the litigation in question. Under Williams, supra, and Gannett, supra, Howell, the defendant in the underlying criminal case, has standing to assert his interest in a closed preliminary hearing.

Commissioner Feeney alleges that a district court is unlawfully interfering with the performance of his lawful discretionary duties. He alleges that he is implicitly being threatened with contempt proceedings if he does not yield to the unlawful assertion of authority by the district court. Feeney has a recognizable interest in being able to properly conduct his office, Klose v. Superior Court, 96 Cal.App.2d 913, 217 P.2d 97 (1950); and, therefore, he has standing to bring his petition for a writ of prohibition in this court.

The petitions for writs of prohibition are granted, and Commissioner Feeney’s closure order is reinstated.

CASE NO. 5245

By reason of our holding in Cases No. 5232 and No. 5241, the appeal in Case No. 5245 is moot and will be dismissed by separate order.

. The Judge first entered a “Writ of Mandamus,” which, by its terms, was an “alternative” writ of mandamus and was in effect a show-cause order.

Subsequently, the court made and entered its “Findings, Conclusions, Order Ruling on Motions to Dismiss and Judgment.” However, a writ of mandamus was never issued as provided for in § 1-30-107, W.S.1977. We will, however, treat these cases as though the court’s order called for the clerk of the court to issue a writ of mandamus and that such writ of mandamus was in fact issued.

. The word “pretrial,” as used in this opinion, means any hearing prior to the actual trial.

. It is to be noted here that while the court accepts for decision in this opinion the issue raised by Harriscope’s attack upon the decision of Commissioner Feeney by a petition for a writ of mandamus, the majority Justices have grave concern with reference to the question of whether or not Harriscope or any other member of the public has standing to pursue a writ of mandamus to attack the decision-making function of the commissioner.

While we reserve the standing question for future consideration, we take time here to observe that the law may well be that the only' parties with standing to lawfully attack the judgment of a magistrate in pretrial matters are either the State or one of the defendants. This leads to the conclusion that no member of the public (including the news media) has standing to interject himself into the criminal proceeding for this or any other purpose. It is worthwhile noting that the United States Supreme Court has said in Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979):

“. . . In an adversary system of criminal justice, the public interest in the administration of justice is protected by the participants in the litigation. . . . ” 99 S.Ct. at 2907.

This would mean that the interest of strangers to the proceeding would have to be pursued in some other way.

The standing query will be reserved for another day, with the admonition that the majority considers this issue to be presently unresolved, either by reason of this decision or the holding in Wiliiams v. Stafford, Wyo., 589 P.2d 322 (1979). In this opinion, therefore, the office of the writ of mandamus in lower-tribunal affairs will be considered as the determinative question, with standing of a public member to pursue mandamus to be later considered in depth should a future occasion present itself.

. It is true that in Williams we treated a petition for a writ of prohibition as a petition for a writ of mandamus in order to consider an issue very similar to the substantive issue in dispute here. However, until Williams, it had not been judicially determined if a judicial officer conducting a pretrial hearing had discretion to exclude the news media, and if he did, against what standards his discretion would be examined. Mandamus was the proper remedy in that case to test the claim that the justice of the peace lacked discretion to exclude the media and had, therefore, violated a ministerial duty in failing to conduct an open hearing. The Williams decision conferred upon judicial officers — if the common law had not already done so — authority to exclude the news media from pretrial hearings if, in the exercise of discretion, the judicial officer determined that an open hearing would create a clear and present danger to the defendant’s ability to obtain a fair trial and the prejudicial effect of such information on trial fairness could not be avoided by any reasonable alternative means. Since Williams has settled the law in this regard, mandamus is no longer proper to challenge the action of a judicial officer in excluding the news media from a pretrial hearing — assuming that the decision to exclude the media was the result of the exercise of the judicial officer’s discretion under Williams.

This does not mean that the public is without some other remedy to enforce its interest in open pretrial hearings or test the issue of abuse of discretion when a judicial officer closes the hearing by an erroneous exercise of his Williams discretion. We merely hold in this opinion that the extraordinary writ of mandamus may not be utilized to challenge the judicial officer’s exercise of discretion, if, in fact, he had discretion. This leads to the conclusion, then, that where there is no evidence which will support the thesis that a closed pretrial hearing is necessary to protect fair-trial right, then mandamus would be appropriate to test closure since the judicial officer would then be without discretion to close the hearing, and, lacking evidence to confer discretion, would have a ministerial duty to conduct an open hearing. But, if there is some evidence which could reasonably be construed as creating a clear and present danger to a fair trial if the pretrial hearing is not closed, and in the judgment of the judicial officer there is no other practical way to avoid the threat to trial fairness, then the exercise of the judicial officer’s discretion in closing the hearing must be tested by ordinary remedies instead of the extraordinary writs.

. The very rationale for closing the hearing originally prevents us from discussing in any more detail the material which we feel must be temporarily kept from the public in order to avoid a clear and present danger to a fair trial.

. This material is taken verbatim from Commissioner Feeney’s brief in response to the Writ of Mandamus issued by the District Court upon Harriscope’s petition therefor. It provides an adequate summary of Harriscope’s constitutional claims.

. The Sixth Amendment provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

.In Gannett, supra, Mr. Justice Stewart, writing for the majority, said:

. . The history upon which the petitioner and amici rely totally fails to demonstrate that the Framers of the Sixth Amendment intended to create a constitutional right in strangers to attend a pretrial proceeding, when all that they actually did was to confer upon the accused an explicit right to demand a public trial. . . . ” 99 S.Ct. at 2908.