In Re Times-World Corp.

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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