Journal Newspapers, Inc. v. State

Wilner, J., delivered the opinion of the Court. By order dated February 25,1983, and supplemental order dated March 1, 1983, this Court vacated a series of orders issued by the Circuit Court for Montgomery County on February 16, 1983, nunc pro tunc February 9, 1983. Those orders of the Circuit Court pertained to seven pending criminal prosecutions. They had the effect of enjoining certain classes of individuals from making public comment about various aspects of those prosecutions and restricting public access to certain documents and proceedings that were, or would become, part of the prosecutions.

We vacated the orders because we believed that they unduly intruded upon rights accorded to the appellant intervenors by the First and Fourteenth Amendments to the United States Constitution and by art. 40 of the Maryland Declaration of Rights. We now explain our action. ¹⁰⁰ Factual And Procedural Background Commencing in or about March, 1981, and continuing for the next eighteen months, the Aspen Hill area of Montgomery County was beset by a series of rapes and assaults that appeared to be the handiwork of one person. Altogether, at least sixteen women ranging in age from eleven to thirty-eight reported being raped, robbed, or assaulted. The culprit was generally described as a young white male in his twenties.

Most of the attacks occurred in the evening, and it seemed apparent that the assailant was familiar with the Aspen Hill neighborhood. As might be expected, the situation engendered considerable alarm in the community, culminating in a town meeting on October 26,1982, that was attended by some 600 people. Rewards were offered for information leading to the arrest of the assailant; the police sent mass mailings to area residents advising them how to secure their homes and asking them to report suspicious characters. Understandably, the local news media took more than a passing interest in the matter.

A number of articles appeared in the press reporting some of the individual assaults, describing the fear in the community, and recounting the efforts being made to identify and capture "the Aspen Hill rapist.” In or about October, 1982, suspicion began to focus on the defendant herein, Timothy J. Buzbee. On November 4,1982, the police presented to a District Court commissioner applications seeking a Statement of Charges against Mr. Buzbee in two of the open cases, one involving a robbery and one a rape. The applications were supported by the affidavits of investigating officers, in which they recounted not only their own actions and observations but also what they had learned from the victims and other persons. At some point, the Statements of Charges sought by the police were filed.

The next evening, November 5, Buzbee was arrested in connection with yet another incident. He was observed following a young girl home and then peering in the window of her house; and he was arrested for trespass. ¹⁰¹ The police chief, presumably in an attempt to allay community apprehension, used the occasion of Buzbee’s arrest to call a press conference and announce that the county police had apprehended "the Aspen Hill rapist.” That too produced a flurry of articles and reports in both the print and electronic media, as to the initial arrest, the chiefs comment, and the subsequent filing, on November 6, of another rape charge against Buzbee. Families of the victims, as well as neighbors, acquaintances, and family of Buzbee were interviewed and quoted. On November 8, Buzbee was taken before the District Court for a bail review hearing.

At that point, he had apparently been formally charged with robbery, rape, and trespassing. The hearing, attended by an overflow crowd, was also extensively reported. 1 Newspaper articles recounted the charges already filed, suggested that additional charges might subsequently be filed, and reported that bail had been denied by the court. Upon motion of defense counsel, and without apparent objection from anyone, the District Court ordered its files (which included the documents submitted by the police on November 4) sealed. On November 18, 1982, Buzbee was indicted in one of the cases for robbery (No. 29681).

The next day, six more multi-count indictments were filed, each charging him with rape (or in one case attempted rape) and other associated offenses (Nos. 29682-87). Upon the filing of these indictments, and on defense motion, the court extended the District Court order sealing the court files pending some further action in the Circuit Court. 2 ¹⁰² On November 26, 1982, Buzbee filed a motion in the Circuit Court, in each of the seven cases, to confirm the District Court order and to restrict both access to and comment regarding the proceedings. In the three cases originating with a Statement of Charges in the District Court (Nos. 29681, 29683, and 29685), Buzbee asked that the affidavits, police reports, and other material filed in support of the Statement of Charges remain sealed. He argued that those documents contained statements that would be inadmissible in evidence; that in the normal course of events those documents, as part of the District Court files, would become incorporated in the Circuit Court files; that, unless restricted, they would be open to public inspection; and that publication of such information would improperly prejudice him and deny him the opportunity to select a fair and impartial jury in the county.

In a more general vein, Buzbee complained that he proposed to file "numerous pre-trial motions, at least some of which would necessarily require statements of fact and discussions of legal theories, all of which could be reported in great detail by the press if unrestricted access to court files is permitted,” and that the State "might file replies” to certain of those motions "discussing the nature of the evidence against the Defendant, or discussing his legal theories, or, perhaps, suggesting that the Defendant might be a danger to society if released on bond.” Noting that the State intended to try the seven cases sequentially and that it refused to join his request to limit access to the court files, Buzbee asked the court: (1) To conduct a hearing on his motion, to limit public access to that hearing, and, following the hearing, to "place reasonable and necessary restrictions on access to the court files herein, to the end that the files may be reviewed only by court personnel, counsel or employees of the [State’s Attorney or Defense Counsel]”; (2) To order "reasonable restrictions on public comment” by court employees and by counsel; and ¹⁰³ (3) To grant such further relief as may be necessary to assure a fair trial. It does not appear from the record before us that the State ever answered Buzbee’s motion, which remained pending until a hearing on January 20, 1983. In the meanwhile, a number of pleadings were filed in the seven cases, including a motion for discovery, a demand for particulars, and pleas of not guilty. On January 10, 1983, Buzbee filed two suppression motions and a motion to dismiss certain counts of the indictments on grounds of vagueness.

One of the suppression motions sought to suppress all physical evidence seized from Buzbee upon his arrest or obtained through the execution of subsequent search warrants, in support of which he claimed that the police had no probable cause to make the arrest or the searches, that the affidavits filed in support of the warrants were false, that the warrants were "over-broad,” and that the police had exceeded the scope of their authority. The second suppression motion sought to exclude statements made by Buzbee following his arrest. Acknowledging in the first motion that he "made no confession as such,” Buzbee nevertheless claimed that, as a result of continued "conversations and interrogations” by the police after he had invoked his right to counsel, he had "responded to ambiguous inquiries concerning his possible involvement in alleged crimes.” 3 It was those responses he asked be suppressed. The next event was Buzbee’s trial, in the District Court, on the trespassing charge.

That trial occurred on January ¹⁰⁴ 17, 1983, and it was open to the public. 4 He was convicted. On January 20, 1983, the court conducted a hearing on Buzbee’s motion for restricted access. Although the hearing itself was "open,” it does not appear that anyone other than counsel, Buzbee, Buzbee’s father, and the usual court personnel was present. In support of the motion, Buzbee offered (1) a series of newspaper articles that had appeared over a three-month period concerning his arrest, the bail review hearing, and his trial (and conviction) on the trespassing charge; (2) video tapes of excerpts from local television broadcasts on November 6, 1982, reporting his arrest, and January 17, 1983, reporting his conviction on the trespassing charge; and (3) the fact that the State’s Attorney’s Office and the chief of police had given interviews to the press regarding the case.

The prosecutor’s statements were limited to (a) recounting what had occurred at the bail review hearing (which, as noted, was open to the public), (b) upon the filing of the indictments, describing the nature of the charges, the dates of the alleged offenses, and the general location of the crimes, and (c) releasing the date of the suppression hearing and the expected trial dates. Evidence was also offered of interviews granted by Buzbee’s family, including his father’s allowing a reporter to go through the father’s home, where one or more of the rapes allegedly took place. Notwithstanding the more limited breadth of the motion itself, counsel made clear at the hearing that what he wanted was (1) to "totally seal all seven court trials in this case,” (2) to restrict access by the public in general and the news media in particular "from all pre-trial evidentiary hearings,” (3) a "reasonable gag order,” and (4) the sealing of all court files in the cases. After hearing argument, the court made two basic ¹⁰⁵ findings — (1) that "there has been very substantial publicity in connection with this particular case.. .” and (2) that this publicity has not "been so overriding as to in effect have crept into the minds of everyone in Montgomery County as to having made a decision on this particular case or having been biased by it.” Consistent with that second conclusion, the court did not find, or even suggest, that the publicity to date had been unfair, unbalanced, or factually erroneous; nor did it make any findings with respect to the type of publicity that would likely ensue if Buzbee’s motion were denied, in whole or in part.

Nor, finally, did the court examine in any detail the extent to which alternative measures of a type we shall shortly discuss could be used to avert or mitigate the effect of any prejudicial publicity that might result from keeping the proceedings open. Rather, based apparently upon the mere fact of previous extensive publicity, the court decided (1) to keep sealed the applications for Statement of Charges in the three District Court files, (2) to close the hearing on Buzbee’s motions to suppress, but to permit the hearing judge to release all or part of the tape recording of the hearing afterward, (3) to seal temporarily all pleadings and documents subsequently filed in the case, subject to agreement of the parties or further court order, (4) to keep the court files sealed until February 28, and (5) to impose a "gag” order of some type. Counsel was directed to prepare appropriate orders for submission on February 28. At some point, the local press found out about what had occurred.

On January 27, 1983, Journal Newspapers, Inc., publisher of the Montgomery Journal, petitioned to intervene in the case in order to oppose the restrictions about to be ordered by the court. See News American v. State, 294 Md. 30 (1982). This was followed, on February 8 and 9,1983, by similar motions on the part of the Washington Post Company and Morkap Publishing Company, Inc., t/a The Sentinel Newspapers. Faced with these petitions, the court scheduled another hearing on the matter for February 9, 1983. ¹⁰⁶ At that hearing, the court permitted the requested interventions and listened to argument from all sides.

Except for the admission of six additional newspaper articles and testimony from a lawyer as to problems he had encountered with undue publicity in another case that had been tried a year earlier, nothing was added to the evidentiary record made at the January 20 hearing. At the court’s direction, counsel had prepared a series of orders implementing the decisions announced by the court at the earlier hearing; and, without any further findings of significance, the court, on February 16, 1983, signed those orders. Throughout the February 9 hearing, the court expressed concern over the uncertainty of what might emerge from the suppression hearing or from future pleadings and documents. Its attention was not focused upon any specific statement or piece of evidence that might be so unduly publicized as to endanger any reasonable prospect of a fair