Baltimore Sun v. Thanos

MOTZ, Judge. The question presented by this case is whether a newspaper is entitled to access to a presentence investigation report which was admitted into evidence, under seal, in the penalty phase of a capital murder trial. There is, we hold, a First Amendment right of access to this report that prevents a trial court from denying access to it, absent a determination that the compelling interests served by maintaining the confidentiality of the report outweigh this right ²³⁰ of access. Since no such determination was made here, we must remand this case to the Circuit Court for Garrett County so that it may evaluate the newspaper’s entitlement to access in light of the considerations enunciated herein.

(i) A presentence investigation report (“presentence report”) is one tool used by a judge or jury to assist in determining the appropriate sentence of a person convicted of a crime. Article 41, § 4-609 of the Maryland Annotated Code (1957, 1990 Repl.Vol., 1992 Supp.) 1 sets forth the conditions and procedures by which presentence reports are used in Maryland. In most cases a presentence report is simply filed with, and considered by, a trial court in its discretion. In capital cases, however, a presentence investigation is required to be made, the report must be considered by the sentencing body and can be entered into evidence. § 4-609(d); Nelson v. State, 315 Md. 62, 67 , 553 A.2d 667 (1989).

A presentence report often involves “a broad-ranging inquiry into a defendant’s private life, not limited by traditional rules of evidence.” United States v. Corbitt, 879 F.2d 224, 230 (7th Cir.1989). These reports generally include information concerning the convicted person’s reputation, past offenses, financial condition, mental and physical health, habits, social background and family history, among other things. Id.; see also Haynes v. State, 19 Md.App. 428, 436 , 311 A.2d 822 (1973). Where the defendant, in committing a felony, caused physical, psychological, or economic injury to the victim, a presentence report may also include a Victim Impact Statement. § 4-609(c)(2) 2 .

Section ²³¹ 4-609(b) mandates that “presentence reports are confidential and not available for public inspection except upon court order.” On January 24, 1992, John Thanos was convicted of the first degree murder of two teenagers from Middle River, Maryland. Thanos’s trial then moved into its penalty phase, in which the State sought the death penalty for both convictions. During this phase, the judge admitted into evidence, under seal, for the sentencing jury’s consideration, a redacted version of Thanos’s presentence report. On January 30, 1992, however, the circuit court declared a mistrial in the penalty phase of the trial because statements made by Thanos were used by a state psychiatrist in violation of Thanos’s rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

The day after the court declared the mistrial, the Baltimore Sun Company, one of its reporters, Glenn Small (collectively “The Sun”), and four television stations intervened in the underlying criminal case to seek access to (a) a videotape in which Thanos confessed to the crimes at issue and (b) the redacted version of Thanos’s presentence report. With respect to their request for the presentence report, the news organizations argued that “anything that is introduced into evidence in a case is clothed with the First Amendment right of access” and that, without access to the presentence report, the media would be unable to accomplish their mission of informing the public accurately as to Thanos’s case. Thanos objected to the disclosure of the report. While the circuit court granted the news organizations’ request for access to the videotape, it denied them access to the presentence report, explaining: Article 41, Section 4-609 makes that information confidential.

It’s just that simple. It is not confidential as to ²³² the sentencer, be it a judge or a jury. In this case, it was the jury. The jury got to read it as the sentencer.

The confidentiality aspect is as to the public. It’s not a decision I’ve made. It’s a decision the legislature has made and the statute does not contain an exception as suggested by [The Sun] that it should have in it. Perhaps it should.

The legislature either didn’t consider that, or it wasn’t presented to them. In any event, that motion will be denied. On February 11, 1992, The Sun noted an appeal of the circuit court’s decision. Shortly thereafter, we granted The Sun’s request to expedite consideration and advance the time for briefing and oral argument in this case.

The Sun argues that the First Amendment and the common law provide a right of access to the redacted version of the presentence report (The Sun does not seek the “raw” report) and require reversal of the circuit court’s decision to the contrary. The State, to which we granted the right to intervene before us, asserts that the public has only a qualified right to inspect and copy a presentence report, and that this case should be remanded so that the circuit court can exercise its discretion to determine which parts, if any, of the presentence report may be disclosed. Thanos maintains that there is no right of access to the presentence report. 3 (ii) We initially consider Thanos’s position that there is no right of access to the report. The Supreme Court has ²³³ expressly recognized a “common law right of access” to judicial records.

See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 , 98 S.Ct. 1306, 1311 , 55 L.Ed.2d 570 (1978). See also Baltimore Sun v. Colbert, 323 Md. 290, 305 , 593 A.2d 224 (1991) (“there is a common law right to inspect and copy judicial records and documents”). In Maryland, however, that right of access has been eliminated by the General Assembly’s specific mandate, in Art. 41, § 4-609(b), that “presentence reports are confidential and not available for public inspection, absent a court order.” Compare United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989) (finding a common law right of access to presentence reports prepared pursuant to the very different provisions of Fed.R.Crim.Proc. 32(c)(3), see infra n. 6). See also United States v. Schlette, 842 F.2d 1574, 1582 , amended, 854 F.2d 359 (9th Cir.1988).

Thus, Thanos is partially correct; there is no common law right of access to the report. A number of courts have, however, also expressly recognized a First Amendment right of access to certain judicial records in criminal cases. See, e.g., In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.1986); United States v. Smith, 776 F.2d 1104, 1111-12 (3rd Cir.1985); United States v. Peters, 754 F.2d 753, 763 (7th Cir.1985); In re Globe Newspaper Co., 729 F.2d 47, 51, 59 (1st Cir.1984). In those relatively few situations in which a presentence report is introduced into evidence, it would seem that there is a First Amendment right of access to the report.

See, e.g., United States v. Posner, 594 F.Supp. 930 (S.D.Fla. 1984), aff'd on other grounds, 764 F.2d 1535 (11th Cir.1985) (First Amendment right to statutory confidential tax returns which have been entered into evidence); United States v. Carpentier, 526 F.Supp. 292, 294-95 (E.D.N.Y. 1981) (First Amendment right to tapes admitted into evidence without seal during a public sentencing). See also United States v. McKnight, 771 F.2d 388, 391 (8th Cir.1985) (confidential presentence reports are not considered “public ²³⁴ records, except to the extent that they or portions of them are placed on the court record”). In deciding whether the public has a First Amendment right of access, the Supreme Court has made two inquiries: (1) “whether the place and process have historically been open to the press and general public”; and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8-9 , 106 S.Ct. 2735, 2740-2741 , 92 L.Ed.2d 1 (1986). 4 Here, those determinations are not difficult. Documents entered into evidence in criminal proceedings have historically been open to the general public and that public access plays a “positive,” indeed critical, role in ensuring the fairness of our judicial system.

See generally Nixon v. Warner Communications, Inc., 435 U.S. at 609 , 98 S.Ct. at 1317 ; Cox ²³⁵ Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 , 95 S.Ct. 1029, 1046 , 43 L.Ed.2d 328 (1975); United States v. Hubbard, 650 F.2d 293, 323 (D.C.Cir.1981); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 427 (5th Cir.1981). Thus, we must reject Thanos’s claim that there is no right of access to this report. The public’s right of access, even when grounded in the First Amendment, while well-recognized, is not absolute. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-05 , 102 S.Ct. 2613, 2618-20 , 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 , 100 S.Ct. 2814, 2829 , 65 L.Ed.2d 973 (1980).

Rather, it may be limited when “an important countervailing interest is shown.” State v. Cottman Transmission Systems, Inc., 75 Md.App. 647, 659 , 542 A.2d 859 (1988) (quoting Publicker Indus. Inc. v. Cohen, 733 F.2d 1059, 1071 (3rd Cir.1984)). The denial of access must “be necessitated by a compelling government interest and narrowly tailored to serve that interest.” Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988). See also Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 , 104 S.Ct. 819, 824 , 78 L.Ed.2d 629 (1984); Globe Newspaper, 457 U.S. at 607 , 102 S.Ct. at 2620 .

Accordingly, we turn to consideration of the proper application of the First Amendment right of access in this case. (iii) Article 41, § 4-609(b) provides in pertinent part: The presentence reports are confidential and not available for public inspection except on court order. All parties, including Thanos, seem to agree that if a presentence report is entered into evidence at trial, without seal or reservation, it is a matter of public record to which the public is entitled complete access. 5 Conversely, all agree, absent the introduction into evidence of a presen ²³⁶ tence report (or an order that it be “available for public inspection”), there is no right of access to it. The question on which The Sun and the State part company is whether a presentence report, like that at issue here, which has been entered into evidence in a sentencing proceeding, can be sealed and so kept from public access.

The State maintains that § 4-609 “identifies” compelling governmental interests that in the proper case bar the public from some or all access to such a report. The Sun claims that Maryland law requires that such a report be regarded as a matter of public record to which the public is entitled complete access. Although the State concedes that “the important government interest[s] in confidentiality is not specifically stated in the statutory language” of the Maryland statutes governing presentence reports, or their “legislative history,” it asserts that those statutes serve “numerous and varied governmental interests that support confidentiality” here. Among the important governmental interests suggested by the State, and discussed and approved in relevant federal case law, are the following: 1.

The need to encourage individuals, including the defendant, with relevant information to provide it to the Probation Office for ultimate transmittal to the sentencer with assurance of confidentiality. See Williams v. New York, 337 U.S. 241, 249 [ 69 S.Ct. 1079, 1084 , 93 L.Ed. 1337 ] (1949); United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985), cert. denied, 475 U.S. 1014 [ 106 S.Ct. 1194 , 89 L.Ed.2d 309 ] (1986); United States v. Anderson, 724 F.2d 596, 598 (7th Cir.1984); United States v. Charmer, 711 F.2d 1164, 1171 (2d Cir.1983); United States v. Greathouse, 484 F.2d 805, 807 (7th Cir.1973). 2. Considerations of the victim’s privacy and that of their families. See United States v. Charmer, supra, 711 F.2d at 1175 . ²³⁷ 3.

Protection of the defendant's privacy, including references to his medical history. Id.; United States v. Corbitt, supra, 879 F.2d at 235 . 4. Protection of confidential source information, cooperation by the defendant with ongoing criminal investigations, and grand jury material. United States v. Corbitt, supra, 879 F.2d at 235 . 5.

Concern that the report includes irrelevant, unsupported statements which the defendant chose not to challenge. Id. 6. Protection of third persons from release of embarrassing personal information. Id. 7.

Avoidance of prejudice to the defendant prior to the imposition of sentence. United States v. Alexander, 860 F.2d 508, 515 (2d Cir.1988). There are, we believe, strong, indeed compelling, interests served by preserving the confidentiality of presentence reports. One of the most important is ensuring that the sentencer, whether it be judge or jury, receives sufficient information to enable it to determine the proper sentence.

Clearly, “publication of the contents of a presentence report [to third persons] would tend to discourage full disclosure” to the sentencer from its best sources, i.e., defendants themselves or informants, who are afraid of the defendant or his associates or who do not wish to be associated with a convicted criminal. United States v. Corbitt, supra, 879 F.2d at 232 ; id. at 233-34 . See also United States Dept. of Justice v. Julian, 486 U.S. 1, 12 , 108 S.Ct. 1606, 1613 , 100 L.Ed.2d 1 (1988). Another significant interest served by preserving the confidentiality of these reports is preventing the disclosure of grand jury materials and other information that may compromise ongoing criminal investigations.

Id.; United States v. Boesky, 674 F.Supp. 1128, 1129-30 (S.D.N.Y.1987). Preserving the right of privacy of victims and the defendant is another very important interest which we believe is served by maintaining this confidentiality. Presentence reports typically contain such usually private material as a ²³⁸ defendant’s juvenile adjudications, results of a defendant’s physical and mental health and intelligence tests, history of a defendant’s abuse, hostilities, sexual deviations, family problems, and disorders, as well as victim impact statements detailing the emotional trauma of the victim’s family. See Probation Div. of the Admin.

Office of the U.S. Courts, The Presentence Investigation Report 1, 10-16 (2d ed. 1984). See also, Baker v. State, 3 Md.App. 251, 257 , 238 A.2d 561 (1968). As Judge Rosalyn Bell explained in Doe v. Shady Grove Hosp., 89 Md.App. 351, 361 , 598 A.2d 507 (1991), although not expressly articulated in the Constitution, the right to privacy is “on equal footing with” and “indispensable to the enjoyment of the explicitly defined rights.” Thus, the right to privacy is one of our most cherished rights; it should not, and cannot, be lightly infringed upon. The Sun properly acknowledges the legitimacy of these interests, some of which “might,” it concedes, “support a denial of access to all or portions of a presentence report in another case.” It makes three arguments as to why these interests should not be considered here.

First, The Sun argues that we should not consider them because they were not raised below. True, these interests were not raised below; however, the speed with which this matter was determined by the circuit court, probably at the request and behest of the media, undoubtedly contributed to this unfortunate result. Thus, The Sun’s argument seems somewhat graceless. In any event, when the interests of justice require it, an appellate court can, and will, reach an argument not raised below.

See, e.g., Baltimore Sun v. Colbert, supra, 323 Md. at 301 , 593 A.2d 224 (although The Sun did “not specifically challenge the adequacy of the notice given by the [trial] court of the closure motion” the Court of Appeals exercised its “jurisdiction under Md.Rule 8-131(a)” and ruled on the issue). See also Atlantic Mutual v. Kenney, 323 Md. 116, 122-123 , 591 A.2d 507 (1991). This is clearly such an occasion. It will benefit no one for us to rule here without supplying as much direction as possible as ²³⁹ to the difficult matters to be weighed by the trial court on remand.

The Sun’s remaining closely-related arguments as to why the interests articulated by the State, and explicated in the federal case law, should not be considered in determining the right of access to the presentence reports at issue here are based on the claim that the Maryland statute itself, unlike the federal scheme, expressly provides that presentence reports are not confidential when introduced into evidence in a capital case. Understanding this argument requires.an examination of several Maryland statutes. Article 41, § 4-609 provides in pertinent part: ²⁴⁰ (emphasis added.) Art. 27, § 413(c)(l)(iv) provides, in turn, that among the type of evidence “which is admissible” in a sentencing proceeding is “any pre-sentence investigation report.” ²³⁹ (b) The parole and probation agents of the Division shall provide the judge of the court with presentence reports or other investigations in all cases when requested by any judge. The presentence reports are confidential and not available for public inspection except upon court order.

However, presentence reports shall be made available, upon request, to the defendant’s attorney, the State’s Attorney, a correctional institution, a parole or probation, or pretrial release official of this State, any other state, the United States, or the District of Columbia, and a public or private mental health facility in any of those jurisdictions, if the individual who is the subject of the report has been committed or is being evaluated for commitment to the facility for treatment as a condition of probation. * * * * * * (d) In any case in which the death penalty or imprisonment for life without the possibility for parole is requested under Art. 27, § 412, a presentence investigation, including a victim impact statement, shall be completed by the Division of Parole and Probation, and shall be considered by the court or jury before whom the separate sentencing proceeding is conducted under Art. 27, § 412 or 413. ²⁴⁰ In a nutshell, The Sun’s claim is that: (1) since § 4-609(d) requires that in a capital case (or one involving a request for life imprisonment without possibility of parole) the presentence report “shall be considered” by the sentencing authority; and (2) since Art. 27, § 413(c)(l)(iv) provides that presentence reports are “admissible into evidence” at these sentencing proceedings, then a court’s admission of the presentence report into evidence at the sentencing hearing constitutes the “court order” making those reports “available for public inspection” under § 4-609(b). Alternatively, The Sun asserts that, at the very least, the admission into evidence of the presentence report at the sentencing hearing constitutes a waiver of the confidentiality provision in § 4-609(b). The Maryland statutory scheme governing the use and disclosure of presentence reports is markedly different from the federal scheme. 6 The plain language of the Mary ²⁴¹ land statutes does not, however, support The Sun’s argument. Rather, that language suggests that presentence reports “are confidential and not available for public inspection except upon court order,” a court order which specifically makes them available for public inspection.

This is particularly so in light of the fact that it is well-established that statutory confidentiality need not be lost simply because confidential items are introduced into evidence or otherwise filed and considered by a court. See, e.g., Nixon v.