Commonwealth v. Berrigan

LARSEN, Justice,

dissenting.

I dissent. The Pennsylvania Constitution explicitly provides: “All courts shall be open.” Pa.Const. Article I, section 11. Furthermore, in “all criminal prosecutions the accused hath a right to ... a speedy public trial____” *138Pa.Const. Article I, section 9. Thus, the Pennsylvania Constitution specifically mandates that “the public shall not be excluded from trials, the courts shall not be closed.” Commonwealth v. Contakos, 499 Pa. 340, 345, 453 A.2d 578, 581 (1982) (per Flaherty, J., joined by Larsen, J.). The First and Fourteenth Amendments to the Constitution of the United States, though not as explicit, also guarantee that criminal proceedings, including the jury selection process, should presumptively be public and open. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).

While these constitutional mandates of open and public trials are not absolute,1 the strong presumption of openness may only be overcome “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.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. at 510, 104 S.Ct. at 824, 78 L.Ed.2d at 638. (emphasis added). Not only must the court articulate specific findings as to the interests to be furthered by restricting public access to the courtroom, it must also indicate on the record that it considered alternatives to closure and its reasons for rejecting the alternatives. Id. 464 U.S. at 512, 513, 104 S.Ct. at 825-26, 78 L.Ed.2d at 639-40.

In the instant case, the record is wholly inadequate to support the court’s exclusion of members of the general public, including appellees’ family members, from the voir dire proceedings. The recitation of the facts as set forth in the majority opinion makes that inadequacy apparent. There is certainly record evidence of contumacious and obstreperous defendants, as well as evidence of boisterous and demonstrative spectators outside of the courthouse —there is, however, precious little on the record to indicate *139that the members of the general public in the courtroom during voir dire had caused any significant disruption sufficient to warrant the drastic measure taken here of closing the courtroom to all members of the general public. The dangers perceived by the lower court were simply too speculative to permit such restrictions.2

Moreover, the constitutional guarantees of public and open trials are not met merely by allowing access to the courtroom to one or more special interest groups such as the press. As was recently stated in Commonwealth v. Contakos, supra:

[T]he openness mandated by our constitution is not satisfied if only representatives of the media are present in the courtroom. Exclusion of the public would strike at the essence and meaning of our mandate for an open court, for the public counterbalances what might otherwise become a tyranny of the media, and the public and the media together counterbalance the possible emergence of a corrupt or biased judiciary.

499 Pa. at 345, 453 A.2d at 581.3

Because, on the record before us, closure of the voir dire proceedings to the general public was unwarranted and violated the defendants’ (and the public) rights to an open and public trial, I would affirm the Superior Court and remand for a new trial.

. See Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980) and Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902, 904 (1976).

. See analysis of lower court record in concurring and dissenting opinion of Judge Wieand, 325 Pa.Super. 242, 472 A.2d at 1119-20.

. I am unpersuaded by the majority’s attempt to distinguish Contakos by the simple expedient of declaring "that the trial court therein prejudiced the right of the defendant to a fair trial by the manner in which the public exclusion occurred and the decision is, thus, sui juris." Majority slip op. at 21, n. 10.