Confusion in the Courts

Gannett vs. DePasquale keeps everyone guessing

When the U.S. Supreme Court ruled last July in Gannett vs. DePasquale that criminal proceedings could be closed to the public, at least under some circumstances, court watchers and the press had difficulty understanding just what the decision meant.

So have the judges who must apply the decision in lower courts. As of late August, they had agreed to half of some 50 requests to close courtrooms. A few judges have barred the press but not the public; others have closed off not only pretrial hearings but actual trials and sentencings.

In New Hampshire last month, Superior Court Judge John W. King came up with a peculiar ruling: after initially closing off a pretrial hearing in a murder case, the judge relented and allowed David Lord, a reporter from the Keene Evening Sentinel, to sit in. King insisted, however, that the newspaper's lawyer, Ernest L. Bell III, sit next to the reporter, telling him what he could and could not write. If anything prejudicial to the defendant appeared in the newspaper, the judge warned, Bell would be subject to discipline. When the hearing resumed, Bell rose and told the judge he had "more important things to do" than censor his client's reporter, but the judge replied, "Not this afternoon you don't, counselor." Bell sat down, but Lord got up and walked out. The Evening Sentinel is appealing the odd ruling to the state supreme court, but meanwhile not a word about the pretrial hearing has been printed.

Chief Justice Warren Burger has publicly blamed the press accounts of the Gannett case for the confusion in the lower courts. But his colleagues on the high court disagree over the meaning of the decision, which some court watchers say was carelessly written in the court's rush to dispose of its case load before the summer recess. Though it is unusual for Supreme Court Justices to explain their judicial opinions publicly, so far four have. Burger told reporters last month that the Gannett decision is limited to pretrial hearings. Justice Harry Blackmun, who dissented in the case, told a group of federal judges that "despite what my colleague, the Chief Justice, has said," the opinion allows the closing of full trials as well. Justice Lewis Powell told a panel at the American Bar Association convention that it "would be a bit premature" to read broader meanings into the opinion. Powell explained that the Gannett decision was based solely on the Sixth Amendment. Though the Sixth guarantees the right to a public trial, it also guarantees a fair trial. If the defendant insists that an open pretrial hearing might prejudice his case, and the judge and the prosecutor agree, then the hearing can be closed. But, Powell said, the court did not consider whether the press has a right to attend trials under the First Amendment guarantee of free expression.

Powell indicated that he would be sympathetic to such a First Amendment claim. Late last week, however, Justice John Paul Stevens entered the Gannett fray by pointing out that the high court has never ruled that the First Amendment guaranteed a right of access to judicial proceedings. Stevens told an audience at the University of Arizona College of Law that while the court has protected the right to disseminate information, it has never upheld any right to acquire information. Whether that reasoning will continue to close courtroom doors to the press remains to be seen. In the meantime, legal experts say that the Gannett decision should be narrowly interpreted.

The reason is complex, but essential to understanding Gannett. In a separate opinion handed down with the decision, Burger emphasized that the Gannett case involved only a pretrial hearing, not a trial. Since Burger's vote to allow judges to close off pretrial hearings was decisive in making up the court's five-man majority, his opinion should limit the scope of the decision. The confusion arises from some broad language in the majority opinion, written by Justice Potter Stewart and signed by four other Justices, including Burger. It flatly states that members of the public have no constitutional right to attend criminal trials. Technically that language is dicta--comments that are not binding precedent. But after a time, the precise limits on a high court decision have a way of getting obscured, especially if lower court judges or indeed high court Justices seize on sweeping statements in the majority opinion.

Only a new ruling by the Supreme Court can clear up the muddle left by Gannett. This fall the court will have just such an opportunity when it decides whether to review a decision by the Virginia Supreme Court that allowed judges to bar the press from trials. Whatever the outcome in that case or in others that are sure to come up to the high court, the Justices have created the uncertainty themselves. Something is clearly amiss when, as Michigan Law School Professor Yale Kamisar puts it, "Justices have to explain their decisions at the next annual A.B.A. meeting."

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