Va. court avoids ruling on access to sealed records in child murder case

A Virginia appellate court avoided deciding if a newspaper had a right of access to trial exhibits in a child murder case, despite a dissenting judge’s opinion that a procedural issue should not have barred a ruling that sealing the records violated the media’s First Amendment rights.

The Court of Appeals of Virginia ruled that it did not have jurisdiction to hear the appeal from the Newport News, Va., Daily Press and one of its reporters because of a procedural issue over how such actions are handled, and transferred the case to the Virginia Supreme Court.

At issue in The Daily Press, Inc. v. Commonwealth is a request for photographs, an autopsy report and other evidence admitted in the criminal trial of Lillian Callender. In January 2011, she was convicted of second-degree murder in the death of her 17-month-old daughter and felony child neglect of that child, as well as a 27-month-old daughter.

Citing a concern about the possibility of prejudice to the constitutional rights of Callender's boyfriend, the judge ordered that “the exhibits, the pictures, and the medical reports” admitted into evidence during Callender’s trial be sealed or otherwise unavailable for public inspection, while the remainder of the file be open. At that time, Callender's boyfriend, Michael Stoffa, who was charged with the same offenses, had not yet gone to trial.

The U.S. Supreme Court recognized in its 1978 landmark case Nixon v. Warner Communications, Inc. a common-law right “to inspect and copy public records and documents, including judicial records and documents,” according to The Reporters Committee for Freedom of the Press' Digital Journalist's Legal Guide.

In Nixon, which involved the news media's request for access to audio tapes broadcast to the media and public during an open trial, the Supreme Court found that the right to inspect and copy judicial records is not absolute, and the decision about whether to grant access to the documents is best left to the discretion of the trial court. Before restricting public access to a case, however, the court must, at least in criminal cases, articulate specific, on-the-record findings demonstrating that sealing is necessary to serve a compelling government interest and that the sealing order is narrowly tailored to serve that interest.

And the Virginia trial court’s failure to undertake this procedure violated this right of public access, according to Judge Larry G. Elder, a member of the three-judge appellate panel that heard the case.

“The trial court’s [general statements about prejudice to parties' interests at trial] failed to meet the stringent requirements for sealing the exhibits,” Elder said in a separate opinion dissenting from the majority panel’s decision to transfer the case to the Virginia Supreme Court.

Specifically, that panel held that it did not have jurisdiction to hear the appeal. The Daily Press unsuccessfully argued that it filed its appeal with the proper court — the intermediate appellate court authorized to hear appeals from final criminal convictions in trial courts — while the state countered that this court is not the proper venue for appeals that arise by virtue of trial court orders that are wholly ancillary to and have no bearing whatsoever on the actual adjudication of guilt, the conviction or sentence.

Because there are no explicit rules or policies addressing the issue, Virginia Supreme Court officials are expected to provide in the near future guidance on how the case will proceed from this point.

Related Reporters Committee resources:

· Dig.J.Leg.Gd.: Sealing the trial record

· The First Amendment Handbook: Civil courts — Cameras and recording equipment