High court agrees to close death-penalty case pretrial hearings

03/07/95

GEORGIA — The Supreme Court of Georgia in Atlanta upheld in late-February a state trial court’s decision to close pretrial evidentiary hearings in a death-penalty case, saying it was the only way to avoid a “clear and present danger” to the fair-trial rights of the defendants.

In its two-paragraph rationale, the four- judge majority acknowledged that under Georgia law a court may not close a criminal trial unless the moving party demonstrates by “clear and convincing proof” that closing the proceeding is the only way to avoid a “clear and present danger.”

The three dissenting justices argued that the proof below was not sufficiently clear or convincing to overcome the presumption of openness in criminal proceedings.

Georgia courts face a similar test when deciding whether to close pretrial proceedings. The courts ease the burden on the moving party, however, because some of the alternatives to closure, such as juror sequestration, are unavailable at the pretrial stage.

The Supreme Court held that the Liberty County Superior Court in Pembroke, a state trial court, could find a clear and present danger, and concluded that the closure order was narrowly drawn to protect the defendants’ fair-trial rights.

Two of the defendants and the State filed a motion in April 1994 asking the trial court to close the pretrial hearings after the Coastal Courier ran a story accurately recounting the prior day’s pretrial hearings. The proceedings involved three men who had been indicted for armed robbery and capital murder.

The Savannah Morning News, owned by Southeastern Newspapers Corp., ran a similar story the same day but had inaccurately described the trial judge and district attorney as characterizing statements by the defendants as confessions. Neither story divulged the statements.

Southeastern Newspapers opposed the motion to close the hearings.

But the trial court agreed to close proceedings concerning pretrial motions on evidence, reasoning that alternatives to closure would not adequately safeguard from prejudicial publicity the defendants’ rights to an impartial jury. The court added, however, that transcripts must be made available once a jury was sequestered.

Southeastern appealed in mid-May 1994 to the Supreme Court of Georgia, which rendered its decision in late February.

(Southeastern Newspapers Corp. v. Georgia; Media Counsel: James Ellington, Augusta, Ga.)

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.