dissenting. The majority opinion is overbroad in its attempt to protect a defendant’s right to fair trial, and will serve as dangerous precedent to subvert first amendment and FOIA rights which were never intended to be limited under the Supreme Court cases relied upon by the majority. The majority cites Gannett v. DePasquale, 443 U.S. 368 (1979), for the proposition that a trial judge has an affirmative duty to minimize the effects of prejudicial, pretrial publicity, and may take protective measures even when they are not strictly and inescapably necessary. While the proposition is true, the Gannett case dealt with the issue of excluding the press and public from a pretrial hearing and did not involve the press’s or public’s right to access public records from sources outside a court proceeding. Here, the trial court not only barred the appellants’ right to view investigative police files compiled in connection with Mr. Clark’s case, it also effectively restrained them from receiving state legislative audit documents that are unquestionably public information, except for the trial court’s order providing otherwise.
The danger in the majority’s decision lies in the fact that public documents available to any citizen or member of the press can be made private and secret, thus cutting off the people’s right to further scrutinize and evaluate their public officials’ performance. Ironically, such public documents (expense vouchers) and their publication are what led to the criminal charge having been filed against Mr. Clark in the first place. If the public and press can be prevented from accessing public records from governmental agencies merely because a police department or law enforcement agency makes those records a part of its investigation, the peoples’ ability to know what is going on in their government is seriously curtailed.
The Supreme Court has said that pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 565 (1976). The decided cases “cannot be made to stand for the proposition that juror exposure to information about news accounts of the crime alone with which a defendant is charged presumptively deprives the defendant of due process.” Id. Appellate evaluations as to the impact of publicity take into account what other measures were used to mitigate the adverse effects of publicity. Id.
In the present case, the trial court appropriately considered Mr. Clark’s rights to a fair trial, but, in reviewing the record, I find no evidence or findings to justify the court’s broad protective order closing the files of the State Legislative Auditor. The trial court not only prevented appellants from obtaining the Legislative Auditor’s report of Mr. Clark’s office expenditures, it also closed them until he had a trial.
The Supreme Court has noted there are measures that may insure a defendant of a fair trial and has approved certain alternatives to the prior restraints of publication that include such measures as a change of trial venue, postponement of the trial, searching questioning of prospective jurors, sequestration of jurors —- to name a few. See Stuart, 427 U.S. at 563, 564. A heavy burden exists in demonstrating, in advance of trial, that without prior restraint a fair trial will be denied. Stuart, 427 U.S. at 569.
The majority court fails to mention or quote from the record where the trial court ever considered evidence and made findings that could justify sealing public documents, such as those generated by the Legislative Auditor in this matter. Nor can I find where the trial court made findings that other alternatives were considered short of removing access to, and thereby preventing the publication of, such documents by the appellants. At the very least, the Legislative Audit report and its underlying documents should have been available when the Clark trial commenced, since, at that point, the trial court by various measures could limit the jurors’ exposure to publicity and limit, as well, what the contending lawyers, police and witnesses may say to anyone. See Stuart, 427 U.S. at 563, 564.
In conclusion, while I am aware this matter appears moot since the Clark trial has been completed, I believe this court should hold the trial court’s order was overbroad and was not supported by a proper analysis or findings. Admittedly, the press’s right of access to certain information is not absolute and must be balanced against a defendant’s sixth amendment right to fair trial. However, I am convinced that when public records or documents are sought to be closed, a defendant, especially a public official, faces a greater burden when trying to show his or her right to a fair trial might be impaired by the release of those documents. Regardless, certain tests must be satisfied to justify abrogating the right of access by examining evidence before the trial judge when the protective order was entered, viz., (1) whether intense and pervasive pretrial publicity would or might impair the defendant’s right to a fair trial; (2) whether other alternatives or measures to closure would insure the defendant a fair trial; and (3) whether closure will be effective in protecting the defendant’s right to fair trial. See Stuart, 427 U.S. at 562-567; Seattle Times Co. v. U.S. District Court, 845 F.2d 1513 (9th Cir. 1988). In the present case, the trial court failed to fully consider each of these tests and enter its findings. Accordingly, because the record fails in these significant respects, I believe the trial court erred in issuing its protective order. See Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983).