ANDERSON, JUSTICE, FOR THE COURT:
This matter is before the Court on Mississippi Publishers Corporation's petition for a writ of mandamus or other extraordinary relief. Petitioner seeks an order requiring the Circuit Court of Hinds County, Judge William Coleman presiding, to vacate certain orders having the effect of closing the files and pre-trial proceedings in this cause to the press and public.
Pruett's original capital murder conviction was vacated in the federal courts, Pruett v. Thigpen, 665 F. Supp. 1254 (N.D. Miss. 1986), aff'd. 805 F.2d 1032 (5th Cir. 1986), cert. den. ___ U.S. ___, 107 S. Ct. 1964, 95 L.Ed.2d 535 (1987), Pruett is presently scheduled for retrial on a charge of capital murder in Hinds County on January 9, 1988.
This case has been attended by massive publicity and media coverage from the beginning involving as it does a charge of brutal kidnap/murder. See Pruett v. State, 431 So.2d 1101 (Miss. 1983). On September 2, 1987, the Circuit Court, on its own initiative, entered an order closing the file and docket of the Pruett cases to the public. Mississippi Publishers corporation, representing several newspapers, filed a petition to vacate the order. The petition was denied on September 17. Meanwhile, Defendant Pruett had moved that the press and public be excluded from all pretrial hearings and jury selection. After a hearing the Circuit Court on September 23, 1987, granted this motion and entered the closure order here under attack.
In support of its closure order, the circuit court has found as a matter of ultimate fact:
(a) that there is a substantial probability that the defendant Pruett's right to a fair trial will be prejudiced without enforcement of the closure order;
(b) that there are available no reasonable, less restrictive alternatives to closure that would adequately protect the defendant's right to a fair trial; indeed, the circuit court has in good faith attempted less restrictive alternatives without success." This good faith attempt "was a July 1987 order which in all relevant parts was patterend upon an unpublished order entered in State v. Judy Houston, which order is attached hereto.
(c) that there is a substantial probability that enforcement of the closure order will enhance de facto and de jure enjoyment of the constitutional rights defendant Pruett invokes.
The record reflects that the pre-trial proceedings ordered closed concern defense motions in limine and motions to suppress seeking to keep certain critical evidence from use by the prosecution at trial. Although we import no view of the merits of these motions, common sense makes clear the media coverage of those proceedings would render academic any success the defense might enjoy on those motions. In this setting, the circuit court made findings of evidentiary fact in support of its findings of ultimate fact, as follows:
(1) The press had repeatedly shown that, given the opportunity, it will publish details of the evidence, including evidence that could not be admitted at trial;
(2) If the press were allowed to attend suppression hearings, it would publish the details, thus making it difficult to find jurors who were not aware of any suppressed evidence.
The Circuit Court concluded that the press, if unrestrained, would jeopardize Pruett's right to a fair trial. It further found that expedients short of full closure would not be sufficient to protect Pruett's rights.
The petition asks us to compel vacation of the closure order. It is well settled that representatives of the news media have standing to contest court orders restricting public access to legal proceedings. E.g., Press-Enterprise Co. v. Superior Court, (Press Enterprise II), 478 U.S. ___, 106 S. Ct. 2735, 2740, 92 L.Ed.2d 1, 10 (1986): Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25, 102 S. Ct. 2613, 2621, 73 L.Ed.2d 248, 259 (1982); Gannett Co. v. DePasquale,
443 U.S. 368, 401, 99 S. Ct. 2898, 2916, 61 L.Ed.2d 608, 634 (1979) (Powell, J., concurring).
The right to a fair trial and the right to a free press are found within a few paragraphs of one another in the federal Bill of Rights. U.S. Const. Amdts. I and VI. They likewise are secured by our state constitution. Miss. Const. Art. 3, 13, 14 and 26 (1890). On occasion, however, they have not been entirely harmonious neighbors. The natural and praiseworthy desire of the press to inform the public about important criminal proceedings can result in the publication of matter that can deprive a defendant of his right to a fair trial. See Fisher v. State, 481 So.2d 203, 216-23 (Miss. 1985); Johnson v. State, 476 So.2d 1195 (Miss. 1985).
Frequently these rights may be accommodated by a change of venue. Here Pruett seeks no such move. In fact, he objects to it, and in this presents a claim of a third constitutional right - the right to be tried in Hinds County, the county where the offense was committed.
Questions of venue in criminal cases are not merely matters of formal legal procedure. They raise deep issues of public policy. The venue provisions of the United States Constitution are important safeguards designed to protect an accused from unfairness and hardship in defending against prosecution by the government. See Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 245, 84 S. Ct. 769, 772, 11 L.Ed.2d 674 (1964); Travis v. United States, 364 U.S. 631, 634, 81 S. Ct. 358, 360, 5 L.Ed.2d 340 (1961); United States v. Cores, 356 U.S. 405, 407, 78 S. Ct. 875, 877, 2 L.Ed.2d 873 (1958); United States v. Johnson, 323 U.S. 273, 275-76, 65 S. Ct. 249, 250-51, 89 L.Ed. 236 (1944)." [A] provisions of the Bill of Rights which is `fundamental and essential to a fair trial' is made obligatory upon the states by the Fourteenth Amendment. "Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 795, 9 L.Ed.2d 799 (1963). Two Mississippi cases point to the significance of the defendant's right to trial in county where the offense was committed, based on the guarantee of the right in Miss. Const. Art. 3, 26. State v. Caldwell, 492 So.2d 575 (Miss. 1986); Rice v. State, 192 So.2d 698 (Miss. 1966). Pruett thus has a federal and state constitutional right to be tried in Hinds County. See In Re Brown, 478 So.2d 1033, 1036-37 (Miss. 1985).
The criminal processes should be open to public scrutiny. Exceptions can be made, but only for good cause. E.g., Press Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 505, 104 S. Ct. 819, 822, 78 L.Ed.2d 629, 635 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 567, 100
S. Ct. 2814, 2822, 65 L.Ed.2d 973, 983 (1980). Openness in the criminal process is a value of importance in a pretrial setting as well. Press-Enterprise II, supra, 478 U.S. at ___, 106 S. Ct. at 2741, 92 L.Ed.2d at 11. A caveat: the right to a" public trial "belongs to the accused and no one else. U.S. Const. Amdts. VI and XIV, 1: Miss. Const. Art. 3, 26 (1890).
Press access to the trial and pretrial processes may be qualified. Press-Enterprise II, supra, 478 U.S. at ___, 106 S. Ct. at 27, 92 L.Ed.2d at 10: Globe Newspaper, supra, 457 U.S. at 606, 102 S. Ct. at 2619, 73 L.Ed.2d at 257. The Supreme Court stated that appropriate test in Press-Enterprise
The presumption 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.
464 U.S. at 510, 104 S. Ct. at 824, 78 L.Ed.2d at 638. In a pretrial setting, the corollary is that:
The preliminary hearing shall be closed only if specific findings are made demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's free trial rights.
Press-Enterprise II, 478 U.S. at ___, 106 S. Ct. at 2743, 92 L.Ed.2d at 13-14.
In the present case, the Circuit Court's closure order was obviously framed with the Press-Enterprise standard in mind. We are of the opinion that the record amply supports his finding that an unrestricted trial process would result in a substantial likelihood of Pruett being denied a fair trial. Pruett's case has already become one of the most famous in Mississippi history. It has been covered extensively by all segments of the media, and public interest has been correspondingly high. In the past, the Circuit Court has tried such less drastic expedients as limited gag orders and requests for voluntary press restraints. That Court has now found, and the record shows, that these measures have not sufficed to stem the torrent of publicity about Pruett.
The petitioners object that the order is not" narrowly tailored, "in that it covers certain materials already within the public domain. We are tempted to ask them by whose efforts that condition came about. Be that as it may, the Circuit Court has indicated its willingness to entertain motions to exempt such materials from the scope of the closure order, and to open the court sua sponte as to any proceeding where the exclusion of the press is not necessary.
Petitioner's reliance on Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 102 S. Ct. 3524, 77 L.Ed.2d 1284 (1983), is misplaced. In that case, the Supreme Court struck down a closure order as not" narrowly tailored. "But the order in Capital Cities was quite unlike the one before us. First, it was entered without a hearing. Second, it was a permanent order. The Circuit Court's order applies only to pretrial matters; Pruett's trial is to be open. Third, the order in Capital Cities was not supported by findings of fact.
We emphasize that Petitioner is not being denied access to the pre-trial proceedings in perpetuity. The closure order expires once the jury is sequestered and the trial begins. Once that point is reached, Petitioner is to be granted access to a complete transcript of all closed, pre-trial proceedings. In this context and in the circumstances of this unique case, we regard the closure order as nothing more than a reasonable regulation of the time, place and manner of Petitioner's enjoyment of its First Amendment rights.
In sum, we are of the view
(1) that the Defendant, Marion Albert Pruett, has a right to a fair trial secured by the Sixth and Fourteenth Amendments to the Constitution of the United States and by Article III, 14 and 26 of the Mississippi Constitution of 1890;
(2) that Defendant Pruett has a right to enjoy that fair trial in" the county where the offense was committed, "a right secured by Article III, 26 of the Mississippi Constitution of 1890; see also the Sixth and Fourteenth Amendments to the Constitution of the United States; and
(3) that" No right ranks higher than the right of the accused to a fair trial. "Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S. Ct. 819, 78 L.Ed.2d 629, 637 (1984);
In furtherance and protection of Pruett's aforesaid rights, the Circuit Court of the First Judicial District of
Hinds County has on September 23, 1987, entered a closure order excluding the public (except the victim's family), print and electronic media from all pre-trial ...