No. IN THE SUPREME COURT OF THE UNITED STATES. STATE OF FLORIDA, Petitioner, THE SARASOTA HERALD-TRIBUNE, et al., Respondents.

Transcription

1 No. IN THE SUPREME COURT OF THE UNITED STATES STATE OF FLORIDA, Petitioner, v. THE SARASOTA HERALD-TRIBUNE, et al., Respondents. On Petition for Writ of Certiorari To the Second District Court of Appeal, State of Florida PETITION FOR WRIT OF CERTIORARI CHARLES J. CRIST, JR. ATTORNEY GENERAL CAROLYN M. SNURKOWSKI Assistant Deputy Attorney General *CAROL M. DITTMAR Senior Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL The Capitol Tallahassee, Florida Telephone: (850) Facsimile: (850) *Counsel of Record

2 QUESTION PRESENTED I. WHETHER THE FIRST AMENDMENT MANDATES ABSOLUTE MEDIA ACCESS TO PHOTOGRAPHS WHICH HAVE BEEN ADMITTED INTO EVIDENCE AND SUBMITTED FOR A JURY S CONSIDERATION AT A CAPITAL TRIAL, NOTWITHSTANDING A PRIOR FINDING THAT THE PHOTOGRAPHS ARE CONFIDENTIAL UNDER STATE LAW? i

3 TABLE OF CONTENTS QUESTION PRESENTED...i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES...iv OPINION BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 2 STATEMENT OF THE CASE... 5 REASONS FOR GRANTING THE WRIT I THE SECOND DISTRICT COURT OF APPEAL DECIDED AN IMPORTANT FEDERAL QUESTION WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT II THE SECOND DISTRICT COURT OF APPEAL DECIDED AN IMPORTANT FEDERAL QUESTION IN A MANNER WHICH CONFLICTS WITH RELEVANT DECISIONS OF THIS COURT AND A NUMBER OF OTHER STATE AND FEDERAL APPELLATE COURTS ii

4 CONCLUSION APPENDIX...A-1 - A-28 iii

5 TABLE OF AUTHORITIES CASES Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989) Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988) Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001) Crowe v. County of San Diego, 210 F. Supp. 2d 1189 (S.D. Cal. 2002) Douglas v. Wainwright, 714 F.2d 1532 (11th Cir. 1983) Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 603 (1982) In Re Boston Herald Inc., 321 F.3d 174 (1st Cir. 2003) ,10 In Re Providence Journal Company, Inc., 293 F.3d 1 (1st Cir. 2002)... 9 In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986) iv

6 Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982) Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)... 8 Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984)... 7,16 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)... 9,10 Seattle Times v. Rhinehart, 467 U.S. 20 (1984) State v. Rolling, 22 Media L. Rep. (BNA) 2264, 1994 WL (Fla. 8th Cir. Ct. 1994) State v. The Sarasota Herald-Tribune,et al., 2005 Fla. App. LEXIS (Fla. 2d DCA Nov. 22, 2005)... 1 United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997) United States v. Ellis, 154 F.R.D. 692 (M.D. Fla. 1993) United States v. Haller, 837 F.2d 84 (2d Cir. 1988) United States v. Kooistra, 796 F.2d 1390 (11th Cir. 1986) ,18 v

7 United States v. Smith, 776 F.2d 1104 (3d Cir. 1985) ,11 United States v. Suarez, 880 F.2d 626 (2d Cir. 1989) United States v. Valenti, 987 F.2d 708 (11th Cir. 1993) Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) Whalen v. Roe, 429 U.S. 589 (1977) OTHER AUTHORITIES S. 24(a), Art. I, Fla.Const U.S.C. 1257(a)... 1 Fla. R. Jud. Admin Report on Privacy of Trial Court Records, (1), Fla. Stat (2)(h), Fla. Stat , Fla. Stat.... 3,17 U.S. States clamp down on the release of autopsy photos, coroner records, Orlando Sentinel, November 30, vi

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9 No. IN THE SUPREME COURT OF THE UNITED STATES STATE OF FLORIDA, Petitioner, v. THE SARASOTA HERALD-TRIBUNE, et al., Respondents. OPINION BELOW The decision from which Petitioner seeks to invoke the discretionary review of this Court is reported as State v. The Sarasota Herald-Tribune, et al., 2005 Fla. App. LEXIS (Fla. 2d DCA Nov. 22, 2005). A copy of this opinion is attached hereto as A-1 - A-17. The underlying order from the trial court is attached at A-18 - A-28. JURISDICTION The decision below was entered on November 22, 2005 (A-1 - A-17. Jurisdiction of the Court is invoked pursuant to 28 U.S.C. 1257(a). 1

10 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the following constitutional and statutory provisions: The First Amendment of the United States Constitution provides: Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. The Fourteenth Amendment of the United States Constitution provides, in pertinent part: Section 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Florida Statues, Section (2)(h) provides: 1. Any criminal intelligence information or criminal investigative information including the photograph, name, address, or other fact or information which reveals the identity of the victim of the crime of sexual battery as defined in chapter 794; the identity of the victim of a lewd or lascivious offense committed upon or in the presence of a person less than 16 years of age, as 2

11 defined in chapter 800; or the identity of the victim of the crime of child abuse as defined by chapter 827 and any criminal intelligence information or criminal investigative information or other criminal record, including those portions of court records and court proceedings, which may reveal the identity of a person who is a victim of any sexual offense, including a sexual offense proscribed in chapter 794, chapter 800, or chapter 827, is exempt from s (1) and s. 24(a), Art. I of the State Constitution. 2. In addition to subparagraph 1., any criminal intelligence information or criminal investigative information that is a photograph, videotape, or image of any part of the body of the victim of a sexual offense prohibited under chapter 794, chapter 800, or chapter 827, regardless of whether the photograph, videotape, or image identifies the victim, is confidential and exempt from s (1) and s. 24(a), Art. I of the State Constitution. This exemption applies to photographs, videotapes, or images held as criminal intelligence information or criminal investigative information before, on, or after the effective date of the exemption. Florida Statutes, Section provides: (1) A photograph or video or audio recording of an autopsy in the custody of a medical examiner is confidential and exempt from the requirements of s (1) and s. 24(a), Art. I of the State Constitution, [with exceptions for surviving spouse or family and governmental entities in furtherance of its official duties]... The custodian 3

12 of the record, [], may not permit any other person...to view or copy such photograph or video recording... without a court order.... (3)(c) a criminal... proceeding is exempt from this section, but unless otherwise exempted, is subject to all other provisions of chapter 119, provided however that this section does not prohibit a court in a criminal... proceeding upon good cause shown from restricting or otherwise controlling the disclosure of an autopsy, crime scene, or similar photograph or video or audio recordings in the manner prescribed herein. 4

13 STATEMENT OF THE CASE In February, 2004, an Indictment was returned against Joseph P. Smith, alleging that he kidnapped, sexually assaulted, 1 and murdered 11-year-old C.B. in Sarasota County, Florida. The case has been subject to intense media coverage since the child s February 1, 2004 abduction, caught on a security videotape, was disseminated internationally. In May, 2004, the victim s father filed a motion in the trial court, requesting that crime scene and autopsy pictures of his daughter be deemed confidential under Florida law. Following a hearing, the trial court issued an Order, granting the motion and finding that statutory exemptions to Florida s public records laws mandated that C.B. s crime scene and autopsy photos be withheld from public access. Respondents, The Sarasota Herald-Tribune, et. al ( the Media ), were served with the Order and did not seek appellate review. Smith s trial began on November 7, On November 10, counsel for the Media approached the judge to discuss access 2 to public records. The Media interpreted the judge s comments to be a retraction of his July 2, 2004, order specifically finding certain crime scene and autopsy photos exempt from Florida s public records laws. Thereafter, the judge reiterated that his prior ruling, exempting select photos and portions of the videotape, remained intact. In response, the Media filed an Emergency 1 The murdered child s identity is protected by Florida law. 2 There is no official transcript of this proceeding currently available. A self-generated transcript, selectively editing the comments, was provided with the petition to review the trial court s ruling, but that transcript does not reflect how or when the issue was brought to the trial judge. 5

14 Petition for Writ of Certiorari in the Second District Court of Appeal on November 15, The Second District directed the trial judge to render a written order memorializing his ruling as to the Media s access to evidence. The Second District called attention to the fact that the petition urged compliance with State v. Rolling, 22 Media L. Rep. (BNA) 2264, 1994 WL (Fla. 8th Cir. Ct. 1994). The order did not request any analysis under Florida Rule of Judicial Administration or the First Amendment to the United States Constitution. The circuit court s order was timely filed with the Second District on November 17, 2005 (App. A-18 - A-28). The trial court addressed the Rolling ruling and determined that statutory changes to Florida s public records laws provided additional confidentiality protection beyond that at issue in Rolling. The trial court analyzed several competing interests, including the harm previously documented from the victim s family; the availability of other descriptive accounts of the pictures themselves; and the least restrictive means to protect the compelling interests involved. Finally, the trial court concluded that closure of this limited evidence was necessary to protect the victim s family s right to privacy. The Second District reviewed the trial court s findings, but determined, [w]ith all due respect to the trial court and the victim s family, that the fact the pictures had already been viewed by law enforcement, court personnel, and jurors, justified the further intrusion of having four professional journalists, review the photos to confirm the accuracy of the descriptions given by the witnesses in court (App. A-14 - A-15). The court, expressly noting the need to protect the constitutional rights provided by the First Amendment, determined that the trial court s failure to abide by the specific requirements of a state procedural rule required the granting of relief. The case was 6

15 remanded for entry of an order permitting one professional journalist from each of the four petitioners to view the sealed exhibits. The State sought further review in the Florida Supreme Court. On November 30, 2005, the Florida Supreme Court issued an Order, dissolving the previously-entered stay and declining to exercise jurisdiction for any further review. An emergency application for a stay was presented to this Court and 3 denied. Florida now seeks certiorari review of the Second District s November 22, 2005, opinion. 3 Although no stay is in effect and presumably, by the time this petition is filed, the petitioners will have viewed the evidence in question, this issue is not moot. Clearly, it is capable of repetition yet evading review. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 6 (1986) (finding release of transcript requested by petitioner did not preclude review). Repetition is in fact insured by the Second District s opinion, inviting other media organizations and members of the public at large to file their own certiorari petitions in order to review the pictures. See App. at A-4 - A-5 (limiting decision to only petitioners and noting, We will review an order excluding the public if and when a member of the public seeks that review ). In addition, the continued concern over the possibility of publication of these photos remains a constant threat to the substantial privacy interests involved. 7

16 REASONS FOR GRANTING THE WRIT I. THE SECOND DISTRICT COURT OF APPEAL DECIDED AN IMPORTANT FEDERAL QUESTION WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT. The opinion of the Second District necessarily concludes that the First Amendment mandates absolute media access to photographs which have been received into evidence and submitted for a jury s consideration at a capital trial. The Second District granted media access to these photos, notwithstanding a prior finding that the photographs are confidential under state law. In doing so, the Second District decided an important question which has not been, but should be, settled by this Court. In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), this Court recognized a common law right of access to judicial records. In that case, this Court reversed a ruling disclosing audiotapes that had been admitted into evidence and published in open court. The Court acknowledged the common law right of access, but determined that it was not an absolute right, and access was subject to a trial court s broad discretion, to be exercised in light of the facts and circumstances of a particular case. 435 U.S. at Nixon also considered the argument that the First Amendment required release of the tapes, but held that First Amendment media access only recognized the right of the press to accurately publish information contained in court records that were open to the public. This Court specifically noted that media rights under the First Amendment offered no right to information about a trial superior to that of the general public. 435 U.S. at

17 In cases following Nixon, this Court has employed an experience and logic test to determine the scope of the First Amendment s qualified right of access for the media in attending public trials and judicial proceedings. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-11 (1986) (Press-Enterprise II). However, this Court has not addressed whether the constitutional right of access in criminal proceedings extends to judicial records. In Re Providence Journal Company, Inc., 293 F.3d 1, 10, n.4 (1st Cir. 2002) (noting issue has not yet been resolved by this Court); In Re Boston Herald Inc., 321 F.3d 174 (1st Cir. 2003) (noting full scope of constitutional right of access is not settled). This is an important question to be addressed, as many courts today are wrestling with privacy issues in the digital age. 4 At the same time, States are taking action in response to societal outrage over the loss of privacy. See U.S. States clamp down on the release of autopsy photos, coroner records, Orlando Sentinel, November 30, Court records are becoming more accessible with the rise in popularity of online docketing, and the extent to which evidence must be reproduced in the public realm is clearly worthy of this Court s certiorari jurisdiction. While some federal circuit courts have applied the experience and logic test to find the existence of a qualified right to access to judicial records, there are no cases addressing the particular issue presented in this case, ascertaining the scope of constitutional access to physical evidence, such as the photographs introduced in Joseph Smith s capital trial. Public release of the photographs in this case is particularly troubling because of the substantial right to privacy implicated. The pictures are deemed confidential under state law, and the victim s 4 See e.g., Report on Privacy of Trial Court Records, posted on Florida Supreme Court website, 9

18 family has demonstrated specific harm from any unnecessary disclosure of the disturbing pictures. In addition, there is uncertainty with regard to the application of the experience and logic test itself. The experience prong requires a court to consider whether historical practice allowed access to the particular proceeding or document at issue; the logic prong considers the extent to which access plays a particularly significant positive role in the actual functioning of the process. Press-Enterprise II, 478 U.S. at See generally In Re Boston Herald, Inc., 321 F.3d 174, (1st Cir. 2003) (analyzing cases, applying experience and logic test to conclude there is no First Amendment right of access to affidavits and documents filed to secure Criminal Justice Act funding filed in federal court); United States v. Smith, 776 F.2d 1104, (3d Cir. 1985) (analyzing cases, applying experience and logic test to conclude there was both First Amendment and common law right to access to bill of particulars filed as court record). This case offers the opportunity to resolve important questions regarding the application of the experience and logic test. For example, to determine constitutional access to the particular photos at issue herein, is a court guided by the historical practice of access to the physical evidence admitted at trial, or access to photographs of young, naked, battered, 5 murdered children? In Smith, the First Circuit commented that the tradition of access referred to the historical access to that particular part of the judicial process rather than access with respect to the particular character of information involved. 5 There is no reasonable argument that historical practice permitted access to the physical evidence admitted at trial, at least as the trial is in progress, raising concerns of chain of custody and evidence tampering; nor is public access to pornography established historically. 10

19 Smith, 776 F.2d at But the appropriate application is not settled and should be addressed by this Court. There is also some disagreement as to whether both prongs of the experience and logic test must be met before constitutional access can be recognized. Circuit courts are divided as to whether both the experience and logic factors must be shown to find a First Amendment right. Compare United States v. El-Sayegh, 131 F.3d 158, (D.C. Cir. 1997) (must find both); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989) (same); and United States v. Suarez, 880 F.2d 626, 631 (2d Cir. 1989) (qualified First Amendment right to access CJA materials found on the strength of the logic factor alone); United States v. Ellis, 154 F.R.D. 692, 696 (M.D. Fla. 1993) ( logic factor alone sufficient to grant qualified First Amendment access). This Court should grant the instant petition and determine whether there is a First Amendment right for media access to evidence admitted in a criminal trial which is confidential pursuant to state law. II. THE SECOND DISTRICT COURT OF APPEAL DECIDED AN IMPORTANT FEDERAL QUESTION IN A MANNER WHICH CONFLICTS WITH RELEVANT DECISIONS OF THIS COURT AND A NUMBER OF OTHER STATE AND FEDERAL APPELLATE COURTS. After assuming that the First Amendment provided for media access to any evidence received in a criminal trial, the Second District thereafter erred in concluding that disclosure of these photographs was constitutionally compelled. 11

20 The trial court identified a compelling reason for confidentiality, balanced competing interests, and determined sealing this evidence was the least restrictive means of protecting the interest involved. Under the appropriate standards, the findings entered below in support of sealing this sensitive evidence were sufficient to permit closure under the First Amendment. The trial court specifically cited a compelling state interest of preventing further emotional trauma and harm to the victim s family, noting the legislative intent in creating exemptions to Florida s public records laws for crime scene or autopsy photographs or video or audio recordings. The court noted that the victim s father had requested the court limit access to these materials, and such restrictions had been granted on July 2, The court further found that there are no less intrusive means of preventing the additional harm that would be caused by making the photos generally available to the media or public, specifically holding that any viewing of this [sic] photographs will be greatly publicized and that [t]he harm will continue to occur and the mere knowledge that the photographs would be accessible for inspection by the media and public has already caused overwhelming emotional distress, to the victim s father in this case (App. A-25). The court also considered the necessity of public evaluation of governmental performance in the conduct of a public trial, finding that the open forum providing live access to all of the witnesses and testimony in this case should generate sufficient assurance for the public that various law enforcement officials are carrying out their duties in a responsible fashion, as their techniques and performances had already been publicly scrutinized. The fact that similar information was available, given the descriptions of the pictures offered in extensive testimony, as well as the autopsy report and other public records, weighed against the release of the photographs. 12

21 However, the Second District deemed the analysis insufficient to constitute significant procedural safeguards to protect the constitutional rights discussed in section 1 of this opinion. Instead, the district court below ruled that only strict compliance with a state procedural rule would assure constitutional protection. To the contrary, there can be any number of factors which affect the reach of media access to judicial records under the First Amendment, including the substantial privacy rights implicated in this case. While following the analysis of Florida s administrative rule governing access to court records does insure constitutional compliance, the Second District erred in concluding that only strict adherence to that rule can satisfy the First Amendment. The court ruled that the good cause analysis conducted by the trial court in this case, despite considering several of the same factors as Rule as well as other circumstances appropriate in balancing competing constitutional interests, did not assure the constitutional protection provided by the First Amendment. The Second District then proceeded to conduct its own analysis. The court ignored the constitutional right to privacy enjoyed by the victim. The court considered the fact that the sensitive evidence had already been disclosed to law enforcement and parties necessary to the judicial prosecution, and concluded that the additional intrusion brought by having four professional journalists, confirm that the pictures had been accurately described by the medical examiner was compelled by the First Amendment. The court emphasized the fact that this was not just any criminal trial, but one in which the State sought the death penalty. Taking death is different philosophy to a new level, the court apparently concluded that because the public s appetite is heightened, the constitution requires not only heightened due process for the accused but also heightened access to confidential photographs for the media. 13

22 The Second District s reversal of the trial court s restriction on access to this evidence raises many troubling issues. For example, the ruling that the journalists can review, but not copy or disseminate the pictures raises concerns of prior restraint. Although the Second District asserts that no one intends the pictures in this case to be publicly displayed, the Second District s good intentions offer little assurance to the victim s family. The First Amendment permits greater rights to publish information which the media legally possesses than to gather news. And even if the court intended to curtail publication, there is clearly little control the court can exercise once the shield of confidentiality has been pierced. The Second District s unusual mandate that the photos be subject to media review, but only at this time by the four petitioners seeking immediate access, also presents concerns. The district court specifically limits its holding to only those parties filing the writ, but case law does not support treating members of the media differently from members of the public at large, or granting special access to some media organizations but not others. The court invites other parties to seek their own extraordinary relief, but with each disclosure, the privacy interest is inherently reduced and the additional intrusion even less significant, making it more difficult to restrict access. In addition, the practical implications of requiring a trial judge, in the middle of a capital trial, to have to stop repeatedly and consider requests for access to sensitive evidence on an individual basis are difficult and unreasonable. Most importantly, in substituting its judgment for that of the trial court, the Second District failed to appreciate the significant privacy interests to which the victim s family are entitled. This Court has recognized a constitutional right to privacy in the First Amendment, based on information of a private nature. Whalen v. Roe, 429 U.S. 589, 599, n.23 & 25 (1977) (noting due process right arising from the individual 14

23 interest in avoiding disclosure of personal matters ). The Tenth Circuit has held that disclosure of such private information can only be granted to further a compelling state interest. See Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986). This significant constitutional right to privacy has been vitiated without any reasoned analysis or justification. The Second District erred both in its approach to this issue and in its reasoning. First of all, there is no authority for the suggestion that the First Amendment requires a strict analysis of the factors set forth in Rule to the exclusion of any other relevant considerations. The Second District characterized the rule as a codification of Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), and Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), two cases founded on the First Amendment. That the rule is grounded in constitutional principles, however, does not establish it as the exclusive constitutional application. Certainly the First Amendment requires a compelling state interest, and there are several such interests offered in Rule 2.051, which permits closure to prevent interference with the administration of justice, as well as the factor noted by the Second District, to avoid substantial injury to innocent third parties. However, to the extent the Second District is holding that the interests specifically identified in Rule 2.051(c)(9)(A) are the only permissible bases for exempting court records from media access, its ruling is inconsistent with a reading of the rule as well as First Amendment case law. By concluding that the procedures outlined in Rule 2.051(c)(9) are the exclusive measure to safeguard the protection of First Amendment rights, the Second District was wrong. All that is required under the First Amendment is an on-the-record finding sufficient to rebut the presumption of openness. A party may overcome that presumption by showing an overriding 15

24 interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984) (Press-Enterprise I); United States v. Valenti, 987 F.2d 708, 713 (11th Cir. 1993). When sealing proceedings or documents, a court must articulate the overriding interest along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Press-Enterprise I, 464 U.S. at 510; United States v. Kooistra, 796 F.2d 1390, 1391 & n.1 (11th Cir. 1986). For example, the Eleventh Circuit has said these findings should include the reason for the closure, the evidence that supports the need for the closure, the number of persons excluded and the number allowed to remain, and the presence or absence of the press. Douglas v. Wainwright, 714 F.2d 1532, 1546 n.16 (11th Cir. 1983) (applying First Amendment standard to defendant s Sixth Amendment right to a public trial). In Seattle Times v. Rhinehart, 467 U.S. 20, 32 (1984), this Court upheld a protective order issued during the course of discovery for a civil lawsuit and challenged as an infringement on the First Amendment. The Court cited the appropriate analysis as whether the practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression and whether the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved. The Court also recognized that the trial judge is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. Seattle Times, 467 U.S. at 36. Much of the established law regarding First Amendment issues at criminal trials involve the right of access to particular proceedings, typically balancing the media s right to gather news with a defendant s right to a trial untainted by prejudicial publicity. While much has been made of the perils of living in an 16

25 oppressive regime and convicting defendants on the basis of secret evidence, the First Amendment right of access to trial proceedings is clearly qualified for the press as well as the public. Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 603 (1982); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001). In Globe, this Court considered the constitutionality of a Massachusetts statute which mandated closure of all trials during the testimony of a minor victim of a sexual offense. Although this Court struck down the statute as contrary to the First Amendment, it noted that public right of access to criminal trials could be restricted: Where, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. 457 U.S. at Notably, this Court recognized that the need to protect a the State s interest in protecting minor victims of sex crimes from further trauma and embarrassment was sufficiently compelling. 457 U.S. at 607. However, the statutory mandated blanket closure of any testimony by a minor victim of a sex crime was not narrowly tailored. The Court determined that the circumstances of a particular case could affect the significance of the interest at stake, and expressly recognized that a trial judge could decide on a case-by-case basis whether closure was necessary to protect the welfare of the child witness. There are no specific standards for passing a First Amendment test, just a balancing of the competing interests involved on the facts of a particular case. The trial judge s order in this case clearly weighed the relevant interests, as part of his consideration of whether good cause existed to seal the evidence as authorized by Section , Florida Statutes. The judge reasoned that there were compelling interests in 17

26 maintaining his prior ruling exempting certain crime scene and autopsy photos from being subject to Florida s public records law, citing particularly to the additional suffering to the victim s family, fully documented in the court file for well over a year. His order was fully compatible with the First Amendment and reasonably served to respect the various competing interests presented. Many cases have recognized a court s right to limit access to court records when necessary to protect sensitive information. See United States v. Kooistra, 796 F.2d 1390, 1391 (11th Cir. 1986); Washington Post v. Robinson, 935 F.2d 282, 289 n.9 (D.C. Cir. 1991) (sealing a plea agreement); United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988); In re Washington Post Co., 807 F.2d 383, 391 (4th Cir. 1986); Crowe v. County of San Diego, 210 F. Supp. 2d 1189 (S.D. Cal. 2002) (media denied access to sealed transcripts of court hearings). The order to seal the evidence entered by the trial court below does not offend the First Amendment any more than the limits on access upheld in these cases, since a compelling state interest is identified, and the least intrusive means of protecting that state interest is accomplished through the trial court s order. The First Amendment clearly permits restriction of media access to criminal trial evidence, as long as there is a compelling state interest, and the restriction is narrowly tailored to serve that interest. The media access conferred by the Second District s opinion below is not required by the First Amendment and has already caused unnecessary emotional pain and suffering for the victim s family. This Court should grant the instant petition and rule that the privacy interest protected by the trial court s order was properly balanced against any First Amendment right of access. 18

27 CONCLUSION For the reasons stated herein, the Petitioner requests the Court grant the instant petition for certiorari and reverse the determination of the Florida Second District Court of Appeal that the photographs and videotape must be viewed by professional journalists. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL CAROLYN M. SNURKOWSKI Assistant Deputy Attorney General *CAROL M. DITTMAR Senior Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL The Capitol Tallahassee, Florida Telephone: (850) Facsimile: (850) *Counsel of Record 19

28 No. IN THE SUPREME COURT OF THE UNITED STATES STATE OF FLORIDA, Petitioner, v. THE SARASOTA HERALD-TRIBUNE, et al., Respondents. APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE SECOND DISTRICT COURT OF APPEAL, STATE OF FLORIDA Opinion of Second District Court of Appeal, November 22, A-1 - A-22 Circuit Court Order, Twelfth Judicial Circuit, November 17, A-23 - A-35

29 THE SARASOTA HERALD-TRIBUNE, TAMPA TRIBUNE, WFLA-TV NEWS CHANNEL 8, and THE HERALD, Petitioners, v. STATE OF FLORIDA and JOSEPH P. SMITH, Respondents. Case No. 2D COURT OF APPEAL OF FLORIDA, SECOND DISTRICT 2005 Fla. App. LEXIS November 22, 2005, Opinion Filed COUNSEL: Gregg D. Thomas, James J. McGuire, and Rachel E. Fugate of Holland & Knight LLP, Tampa, for Petitioners. Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent State of Florida. Elliott C. Metcalfe, Jr., Public Defender, and Adam Tebrugge, Assistant Public Defender, Sarasota; and James Marion Moorman, Public Defender, and Robert A. Young and Paul Valcore, Assistant Public Defenders, Bartow, for Respondent Joseph Smith. JUDGES: ALTENBERND, Judge. VILLANTI, J., Concurs. CASANUEVA, J., Concurs with opinion. OPINION BY: ALTENBERND OPINION: ALTENBERND, Judge. The Sarasota Herald-Tribune, Tampa Tribune, WFLA-TV News Channel 8, and The Herald (the Media) petition this court to review an order entered by the trial court that excludes the press A-1

30 from viewing and inspecting crime scene photographs, crime scene videotapes, and autopsy photographs that were admitted into evidence in open court during the criminal trial of Joseph P. Smith for the murder of [C.B.]. The order actually prevents all members of the public from viewing these exhibits. We conclude that the statutes relied upon by the trial court to bar examination of this evidence by the Media do not apply to these exhibits that have been formally introduced into evidence in a pending criminal trial. Instead, the trial court was required to apply the analysis set forth in Florida Rule of Judicial Administration 2.051(c), which essentially codifies the holdings in Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), and Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982). Under that analysis, we conclude that the four members of the Media who have asked to view the evidence have been improperly excluded from viewing it. We emphasize that we are not holding that the Media is entitled to copies of this evidence or to publish it. The Media has not sought that relief and does not suggest that it has any interest in seeking that relief. We also emphasize that we are not holding that the trial court must make this evidence generally available for easy viewing by large numbers of people. Finally, our holding is limited to exhibits actually introduced into evidence. We have not been asked to determine any issue concerning exhibits that may have been identified but not admitted for use and examination by the jury, or concerning documents that were disclosed earlier in these proceedings and not used for any purpose during the trial. I. PROCEEDING IN TRIAL COURT LEADING UP TO THIS APPELLATE PROCEEDING The State indicted Joseph P. Smith, alleging that he kidnapped, sexually assaulted, and murdered a young girl, [C.B.], on February 1, It is undisputed that many of the crime scene A-2

31 photographs and autopsy photographs related to these crimes are disturbing. Prior to the jury trial, the trial court entered orders restricting access to some of the documents that might otherwise have been accessible as court records. The Media did not challenge those orders. At trial, however, the Media sought access to crime scene photographs, crime scene videotapes, and autopsy photographs that were actually introduced into evidence. The State did not wish to have the exhibits made public. The Media argued that the trial court should enter an order containing restrictions similar to those imposed by Judge Stan Morris in the trial of Danny Rolling, which would have permitted the Media to view and inspect the exhibits. See State v. Rolling, 22 Media L. Rep. (BNA) 2264, 1994 WL (Fla. 8th Cir. Ct. 1994). Ultimately, the trial court was persuaded that the enactment of section , Florida Statutes (2005), and certain provisions in chapter 119, Florida Statutes (2005), required it to enter an order more restrictive than the order entered in the Rolling case. On November 10, the trial court orally ruled that it would bar all press and public access to certain exhibits that had been introduced into evidence. The evidence at issue includes five crime scene photographs that were admitted into evidence as State s exhibits 30, 32, 34, 35a, and 36. It also includes thirteen autopsy photographs that were admitted into evidence as State s exhibits 39-46, 48, 50, 51, 53, and 56. Finally, there is a videotape that was marked for identification as State s exhibit 31, but was redacted prior to admission into evidence. This court is uncertain whether the redacted videotape was introduced into evidence under a different exhibit number. The Media challenged the trial court s oral ruling by filing a petition in this court pursuant to Florida Rule of Appellate Procedure 9.100(d), which permits expedited review of orders excluding the press. We instructed the trial court to render a written order, which was entered on November 17, Thus, A-3

32 the order that we are reviewing in this case pursuant to rule 9.100(d) is the order of November 17, n1 n1 We review this order as an order excluding the press under Florida Rule of Appellate Procedure 9.100(d). At least three procedural matters warrant brief comment, and we have decided to relegate them to a footnote. First, the trial court initially ruled orally on this matter in open court. Rule 9.100(d) permits review of orders excluding the press whether oral or written. This court, however, had no official transcript of proceedings when it received the petition. Moreover, some reported decisions have drawn fine distinctions between issues that can be reviewed under rule 9.100(d), as compared to review by common law certiorari. See Fla. Publ g Co. v. Brooke, 576 So. 2d 842 (Fla. 1st DCA 1991) (providing review by certiorari when review had been sought under rule 9.100(d)). We cannot review an oral ruling by certiorari. Accordingly, we ordered the trial court to render an expedited written order in this case. Second, the Media consists of members of the press. Florida Rule of Appellate Procedure 9.100(d) gives this court authority to review orders excluding the public as well as the press. It is arguable that the trial court could place greater or different restrictions on members of the public who wished to review these exhibits merely out of curiosity and not for reasons related to freedom of the press. Accordingly, we have limited our holding to the Media before this court. We will review an order excluding the public if A-4

33 and when a member of the public seeks that review. Finally, the Media assumes that our standard of review under rule 9.100(d) is comparable to the limited review we provide in a common law certiorari proceeding. Rule 9.100(d) is incorporated into the rule of appellate procedure that governs original proceedings because the drafters of the rule wished to provide the expedited review suggested by Justice England s dissent in English v. McCrary, 348 So. 2d 293, 300 (Fla. 1977). The Media has no right to a direct appeal from a subsequent final order entered by the trial court in this case. As to the Media, this order is arguably a final, appealable order. Because our outcome is not affected by the standard of review in this case, and because we must expedite this opinion, we do not further discuss the appropriate jurisdictional basis and standard of review for an order reviewed under rule 9.100(d). Both the State and Mr. Smith have responded to the Media s petition, supporting the trial court s order. The State argues that the Media cannot bring this challenge because the Media did not challenge the earlier orders restricting access to documents pretrial. We conclude that the orders addressing pretrial issues are not dispositive of the Media s right to view exhibits introduced into evidence during a public, criminal trial. II. THE CONSTITUTIONAL DIMENSIONS OF THIS CASE The broadest issue in this case is whether the State can rely upon secret evidence to obtain a conviction for a capital offense. Although Mr. Smith s trial has been broadcast on television and A-5

34 conducted in an open, public courtroom, these specific items of evidence have been concealed from all members of the public and the press. The disputed photographs are not in this court s record, and we have not chosen to view them. Nevertheless, we can fully understand that they must be extraordinarily distressing to family and friends of the young victim. However, these photographs are evidence in a trial where the State, on behalf of the people, is using its power to pursue the most extreme penalties. Secret evidence is the hallmark of an oppressive regime; it is not a policy generally acceptable in a free society with courts that must be open to the people to assure the legitimacy of those courts and the fairness of the proceedings that occur therein. As a result of these concerns, the Media has challenged the trial court s ruling at a constitutional level. There is strong support for this argument. As the United States Supreme Court stated in Craig v. Harney, 331 U.S. 367, 374, 67 S. Ct. 1249, 91 L. Ed (1947): A trial is a public event. What transpires in the court room is public property.... There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it. Allowing the public access to all aspects of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)). When the media attends a trial and reports on the proceedings, a larger segment of the public is afforded this important access. The open trial thus plays as important a role in the administration of justice today as it did for A-6

35 centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at Press-Enter. Co. v. Superior Court, 464 U.S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984). Although the openness of criminal trial proceedings helps to ensure fairness to the accused and provides the public with an assurance of that fairness, certain limited circumstances can exist in which a court would be justified in closing aspects of a proceeding to public scrutiny. Press-Enter. Co. v. Superior Court, 478 U.S. 1, 9, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access. Id. The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. A-7

36 Press-Enter., 464 U.S. at 510. But the circumstances under which the press and public can be barred from a criminal trial are limited; the State s justification in denying access must be a weighty one. Globe, 457 U.S. at 606. Where... the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. Id. at This case is somewhat unusual because the compelling governmental interest that may justify a restriction on disclosure does not primarily involve the defendant s privacy or his right to a fair trial. See, e.g., United States v. Posner, 594 F. Supp. 930 (S.D. Fla. 1984). Instead, the interest to be protected is the privacy of the victim s family and friends. The supreme court has recognized that article I, section 23 of the Florida Constitution can form a constitutional basis for closure of court records or proceedings. See Barron, 531 So. 2d at 118. Nevertheless, the privacy interests of persons who are family or friends of the victims of well-publicized crimes would seem to be a difficult interest to balance against the interests favoring public trial. Although the facts of the petition and the order on review raise these important constitutional questions, we are required, whenever possible, to resolve a dispute without reaching the constitutional issues and without declaring statutes unconstitutional. See Singletary v. State, 322 So. 2d 551 (Fla. 1975). In its November 17, 2005, order, the trial court concluded that the specific exhibits were exempt and confidential, relying on the content of section and chapter 119, Florida Statutes (2005). Without regard to their constitutionality, these statutes on their face do not render these exhibits confidential. Accordingly, resolution of this petition does not require that we review the constitutional sufficiency of any statute. A-8

37 III. SECTION , FLORIDA STATUTES (2005) Section was enacted in response to efforts by some to obtain copies of autopsy photographs concerning the death of Dale Earnhardt. See Campus Commc ns, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2002). Subsection 1 of that statute unambiguously states: A photograph or video or audio recording of an autopsy in the custody of a medical examiner is confidential and exempt from the requirements of s (1) and s. 24(a), Art. I of the State Constitution. (Emphasis supplied.) The exhibits in evidence in the trial court are not in the custody of a medical examiner as the records of the county medical examiner; they are in the custody of the clerk of court as circuit court records. Moreover, section (3)(c) states that a criminal... proceeding is exempt from this section, but unless otherwise exempted, is subject to all other provisions of chapter 119, provided however that this section does not prohibit a court in a criminal... proceeding upon good cause shown from restricting or otherwise controlling the disclosure of an autopsy, crime scene, or similar photograph or video or audio recordings in the manner prescribed herein. Thus, the statute expressly exempts criminal court proceedings from its application. The legislature directs the reader to chapter 119 to determine whether it may provide some other applicable exemption. Although section may not prohibit a court in a criminal proceeding upon good cause shown from restricting or otherwise controlling the disclosure of an autopsy, crime scene, or similar photograph or video or audio recordings in the manner prescribed in that statute, as we will soon discover the regulation of the trial court in this function is controlled by rule 2.051, which establishes different tests to comply with constitutional requirements. Thus section does not A-9