Buzbee v. Journal Newspapers, Inc.

Rodowsky, J., delivered the opinion of the Court. ⁷⁰ PER CURIAM ORDER For reasons to be stated in an opinion to be filed later, it is this 17th day of March, 1983 ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the judgment of the Court of Special Appeals be, and it is hereby, affirmed with costs; and it is further ORDERED that the mandate shall issue forthwith. In these criminal cases the trial court, at the accused’s request, ordered, inter alia, that its hearing on motions to suppress evidence would be closed to the public. The Court of Special Appeals vacated that order. Journal Newspapers v. State, 54 Md. App. 98, 456 A.2d 963 (1983).

We affirmed by per curiam order with opinion to follow. In presenting below the reasons for affirmance we shall hold that the public’s qualified right of access to criminal trials extends to pretrial judicial proceedings in criminal cases and that, on the record in the instant matter, that right is not outweighed by probable impairment of the accused’s right to a fair trial. Respondents respectively publish three newspapers, the Montgomery Journal, the Sentinel, and the Washington Post. They intervened in seven criminal cases pending in the Circuit Court for Montgomery County against the Petitioner, Timothy Joseph Buzbee (Buzbee).

These interventions unsuccessfully opposed restrictions on access sought by Buzbee. By orders entered on February 16,1983, the circuit court (1) excluded the public, including the press, from a hearing then scheduled for February 28, 1983, and later postponed to March 22, 1983, on Buzbee’s motions to suppress certain evidence (the closure order), (2) enjoined certain classes of individuals from making extrajudicial statements concerning aspects of the criminal causes pending against Buzbee (the "gag” order), and (3) directed that certain court records be sealed, including affidavits filed in the District Court to support the issuance of warrants for Buzbee’s arrest. Respondents’ appeal to the Court of Special Appeals was accelerated. That court, by ⁷¹ orders of February 25 and March 1,1983, and for reasons set forth in an opinion filed March 4, 1983, vacated the circuit court orders entered February 16, 1983.

There was no stay of the Court of Special Appeals’ orders so that the probable cause affidavits became available to Respondents. Buzbee applied to this Court for a writ of certiorari. His petition sought only reinstatement of the gag and closure orders. We granted the writ on March 9, 1983, and heard argument on March 17, 1983.

By per curiam order issued that day, we affirmed the intermediate appellate court. Between March 1981 and November 1982 sixteen separate rapes had been committed in the Aspen Hill area of Montgomery County. In each case the assailant was careful to conceal his identity. Similarity between the victims’ general descriptions of their assailant and the similar modus operandi indicated that one individual might be responsible.

The community became increasingly concerned because the "Aspen Hill rapist” remained at large, despite intensive police investigation, increased patrolling, and heightened citizen watchfulness. Indeed, 600 persons attended a community meeting on the subject in October 1982 where they were addressed by Bernard Crooke, the chief of the Montgomery County police. Each rape occurrence and the community and police response to the increasing number of such offenses were reported in the media. On November 5, 1982, Buzbee was arrested.

That evening Chief Crooke held a press conference at the end of which, in response to a question, he referred to Buzbee as the Aspen Hill rapist.* 1 ⁷² Buzbee had been the subject of police surveillance for some time preceding his arrest under warrants in four cases, on charges including robbery, two rapes, and a "peeping Tom” trespass observed by the police on November 4, 1982. Media accounts of the arrest included Chief Crooke’s reference to Buzbee as the Aspen Hill rapist. The accounts also gave Buzbee’s background, that is, that he was 25 years of age, a surveyor, married, the father of two children, and a homeowner in a residential community in adjoining Frederick County. It was also reported that Buzbee had no criminal record and that two victims of the Aspen Hill rapist had been unable to identify Buzbee in a line-up following his arrest.

The Montgomery Journal of November 8 did a background piece on the front page concerning Buzbee in which the lead sentence quoted friends and neighbors in describing Buzbee "as a friendly and polite family man who was 'straight as an arrow.’ ” At a hearing in open court on November 8, 1982, Buzbee was denied bail. Based on matters disclosed in argument by the State’s Attorney in opposition to any bail, the press reported that evidence against Buzbee included police observation of the "peeping Tom” trespass and that a credit .card which had been taken from a rape victim had been found in Buzbee’s desk at his place of employment when a search warrant was . executed. The Montgomery Journal of November 9 also reported, based on an undisclosed source, that Buzbee had been seen by a coworker to have a collection of women’s panties in a bag. Information received by the police to that effect does appear in a warrant affidavit which is now public.

Whatever evidence the State had that implicated Buzbee was presented to the Grand Jury which returned indict ⁷³ ments on November 19, 1982 in seven cases. The "peeping Tom” trespass case, which was tried in the District Court of Maryland on January 17, 1983, resulted in a conviction. Buzbee filed two motions to suppress, one directed to the fruits of searches and the other to post-arrest, oral statements which the motions say are not a "confession as such.” The record does not contain the supporting material for the issuance of the search warrants or an inventory of the items seized. Although it appears that the oral statements sought to be suppressed were recorded in notes taken by a police officer, a copy of which had subsequently been furnished to Buzbee’s counsel in discovery, those notes are not in the record.

The hearing on Buzbee’s applications for restrictive orders took place in two stages, first on January 20,1983, before the Respondents intervened, and later on February 9, 1983, when the Respondents were heard in opposition. Some findings of fact were made from the bench during the earlier hearing. The trial court had no doubt "that there has been substantial publicity in this case,” resulting from "a very obvious interest in a very serious neighborhood situation,” and that "in a particular part of our Montgomery County community there was an overriding public interest in a series of events which allegedly occurred.” It was found that while "there has been substantial publicity, I do not find that it has been so overriding as to in effect have crept into the minds of everyone in Montgomery County as to their having made a decision on this particular case or having been biased by it.” The hearing then turned to a consideration of the features to be included in the court orders so as to limit their scope and duration. On this appeal the fundamental question is whether the Respondents have any right to attend, and thereby to report on, a pretrial suppression hearing which the hearing court has ordered to be closed at the request of the accused.

The Court of Special Appeals, citing its decision in Patuxent Publishing Corp. v. State, 48 Md. App. 689 , 429 A.2d 554 (1981), started from the premise that a right of public access, based upon the First and Fourteenth Amendments to the ⁷⁴ United States Constitution and on Article 40 of the Maryland Declaration of Rights, is applicable to pretrial proceedings in criminal cases. 2 The Supreme Court has discussed public access to judicial proceedings in three recent cases, which we reviewed in News American v. State, 294 Md. 30 , 447 A.2d 1264 (1982). After Gannett Co. v. DePasquale, 443 U.S. 368 , 99 S. Ct. 2898 , 61 L. Ed. 2d 608 (1979) had held that a newspaper does not have a right, under the Sixth Amendment, to attend a pretrial suppression hearing which had been ordered closed at the defendant’s request, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 , 100 S. Ct. 2814 , 65 L. Ed. 2d 973 (1980) (plurality opinion) determined that a qualified right of access to trials of criminal cases is guaranteed to the public, including the press, by the First and Fourteenth Amendments to the United States Constitution. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596 , 102 S. Ct. 2613 , 73 L. Ed. 2d 248 (1982), the Supreme Court held that a Massachusetts statute mandating closure of the trial during the testimony of a minor victim in cases involving certain sex offenses was violative of this qualified right of access. News American v. State, supra, presented a newspaper’s assertions that there is a constitutional right of public access to statements that trial participants might desire to make, that court orders in two criminal cases restricting such comment were erroneously entered, and that the newspaper could intervene in the criminal causes for the limited purpose of asserting the claimed right of access.

The merits of that controversy became moot during the pendency of the appeal; however, we held, because of the recurring nature of fair trial-free press controversies, that media intervention in a criminal case was permissible when it was limited to opposition to orders alleged to be impermissibly restrictive of the claimed public right. ⁷⁵ Although the Supreme Court has not spoken directly on the subject, many courts now hold that the right of access which was derived from the First Amendment and applied to criminal trials in Richmond Newspapers applies as well to pretrial judicial proceedings in criminal cases. See United States v. Chagra, 701 F.2d 354 (5th Cir. 1983) (bail reduction hearing); United States v. Brooklier, 685 F.2d 1162 (9th Cir. 1982) (as to pretrial suppression hearings); United States v. Criden, 675 F.2d 550 (3rd Cir. 1982) (pretrial suppression and dismissal for entrapment hearings); United States v. Pageau, 526 F. Supp. 1221 (N.D.N.Y. 1981) (pretrial hearing on admissibility under evidence law); United States v. Civella, 493 F. Supp. 786 (W.D. Mo. 1980) (all pretrial hearings to be held in the case); Star Journal Publishing Corp. v. County Court, 197 Colo. 234 , 591 P.2d 1028 (1979) (en banc) (preliminary hearing); State v. Couture, 37 Conn. Supp. 705 , 435 A.2d 369 (1981) (pretrial suppression hearings); State v. Burak, 37 Conn. Supp. 627 , 431 A.2d 1246 (1981) (pretrial hearing on motion in limine); United States v. Edwards, 430 A.2d 1321 (D.C. App. 1981), cert. denied, 455 U.S. 1022 , 102 S. Ct. 1721 , 72 L. Ed. 2d 141 (1982) (pretrial detention hearing); State v. Williams, 93 N.J. 39 , 459 A.2d 641 (1983) (bail and probable cause hearings).

At least one court has expressly adopted the standard proposed in August 1978 by the American Bar Association’s Standing Committee on Association Standards for Criminal Justice which " 'rests on sixth amendment grounds.’ ” Kansas City Star Co. v. Fossey, 230 Kan. 240, 248 , 630 P.2d 1176, 1182 (1981). Courts of other states have held that provisions in their state constitutions dealing with public trials or open proceedings confer a right of access on the public to pretrial suppression hearings in criminal cases. See R.W. Page Corp. v. Lumpkin, 249 Ga. 576 , 292 S.E.2d 815 (1982); Iowa Freedom of Information Council v. Van Wifvat, 328 N.W.2d 920 (Iowa 1983); Ashland Publishing Co. v. Asbury, 612 S.W.2d 749 (Ky. Ct. App. 1980); State ex rel.

Smith v. District Court, Mont. , 654 P.2d 982 (1982); Federated Publications, Inc. v. Kurtz, 94 Wash. 2d 51 , 615 P.2d 440 (1980); State ex rel. Herald Mail Co. v. ⁷⁶ Hamilton, 267 S.E.2d 544 (W. Va. 1980). A public right of access has been predicated on the free speech provisions of the Constitutions of Texas and Virginia. See Houston Chronicle Publishing Co. v. Shaver, 630 S.W.2d 927 (Tex.

Crim. App. 1982) (en banc) (mid-trial suppression hearing); Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981) (pretrial suppression and motion in limine hearings). New York’s highest court has overturned orders closing pretrial competency hearings based on public policy as reflected in statutory and case law, without reaching the constitutional level. See Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430 , 423 N.Y.S.2d 630 , 399 N.E.2d 518 (1979).

On the other hand, the Supreme Court of California has held that there is no public right of access under either the United States or California Constitutions, at least insofar as preliminary hearings are concerned. See San Jose Mercury-News v. Municipal Court, 30 Cal. 3d 498 , 179 Cal. Rptr. 772 , 638 P.2d 655 (1982). We agree with the results in the majority of decisions cited above and the Court of Special Appeals’ conclusions that there is a right of public access to pretrial hearings in criminal cases and that the right is predicated on the First and Fourteenth Amendments and on Article 40 of the Maryland Declaration of Rights.

The most recent decision of the United States Supreme Court dealing with the right of public access to criminal trials, in which six justices joined in the opinion of the Court, is Globe Newspaper Co. v. Superior Court, supra, 457 U.S. 596 , 102 S. Ct. 2613 , 73 L. Ed. 2d 248 (1982). The Court there explained that the right of access to criminal trials is afforded protection by the First Amendment because of historical and institutional features of the criminal justice system which had been emphasized in Richmond Newspapers. A similar analysis yields First Amendment protection for pretrial judicial proceedings in criminal cases. As to the first feature the Court in Globe stated that the criminal trial historically has been open to the press and general public.

"[A]t the time when our ⁷⁷ organic laws were adopted, criminal trials both here and in England had long been presumptively open” [cit. om.]. And since that time, the presumption of openness has remained secure.... This uniform rule of openness has been viewed as significant in constitutional terms not only "because the Constitution carries the gloss of history,” but also because "a tradition of accessibility implies the favorable judgment of experience.” [cit. om.]. [ 457 U.S. at 605 , 102 S. Ct. at 2619 , 73 L. Ed. 2d at 256 . (footnote omitted).] The presumptive openness of pretrial proceedings in criminal cases does not carry centuries of tradition.

Nevertheless, the judgment of experience in this country with respect to pretrial judicial proceedings in criminal cases is that they are presumptively open. The Supreme Court of New Jersey, in concluding that there is a First Amendment right of public access to pretrial criminal proceedings, stated that "[t]he near uniform practice in the federal and state court systems has been to conduct pretrial criminal proceedings in open court.” State v. Williams, supra, 93 N.J. at 55 , 459 A.2d at 649 . (Footnote omitted). The statement is supported by references to statutory provisions in eight states, 3 rules of court in two states, 4 and court decisions in the federal system, in 19 states, 5 and in the District of Columbia.

Id. at 55 n.5, 459 A.2d at 649 -50 n.5. The ABA Standards for Criminal Justice (2d ed. 1980) in Standard 8-3.2 recommend that "pretrial proceedings and their record shall be open to the public, including representatives of the news media,” unless certain criteria for closure are met. Presumptive openness of all preliminary ⁷⁸ criminal proceedings is also the position taken by the Judicial Conference of the United States by its September 25, 1980 approval of the Revised Report of the Judicial Conference Committee on the Operation of the Jury System on the "Free Press-Fair Trial” Issue. See 87 F.R.D. 519 , 534-35 (1980).

In Maryland, the practice has been that hearings on pretrial motions in criminal cases are presumptively open. The burden is upon the party seeking closure or some other restraint on public access to obtain an order of court so as to reverse the usual procedure and have the public excluded. Patuxent Publishing Corp., supra, embraced the view that, in light of Richmond Newspapers, the rule of openness for pretrial proceedings is rooted in the First Amendment and is not simply a matter of practice. The second feature of the criminal justice system emphasized in Richmond Newspapers and identified in Globe Newspaper Co. as explaining why the First Amendment protects public access to criminal trials is that "the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the