York County Common Pleas Court Judge John S. Kennedy said jury selection in the Craver murder case was open to the public, though he said he intentionally withheld information that would have allowed people to know that it was going on and, thus, exercise their right to attend.
You might be asking: So what? Who cares whether jury selection is open?
Here is case law establishing why it matters. As you read, note that Kennedy’s reasoning was that had jury selection been put on the public docket, he said, the York Daily Record/Sunday News would have published a story in advance of jury selection that would have made it difficult to seat a jury. The cases below deal with proceedings that were closed and/or transcripts of proceedings that were sealed — neither being the case in the Craver jury selection — but the courts in each case referred to the need for openness and the responsibility of a court to establish on the public record why the desire for privacy should override the requirement that the proceedings be open.
In each case below, the ruling court overturned a lower court’s decision to close a proceeding and/or seal a transcript.
From a 1994 ruling in U.S. v. Antar, in the U.S. Court of Appeals, Third Circuit, a case cited by the state’s open records office as case law regarding the right of access to jury selection/voir dire:
In Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) [**29] (“Press-Enterprise I”), the Court specifically addressed whether the guarantees of open public proceedings in criminal trials extend to the voir dire examination of potential jurors. The Court held that they do. Following its analysis in Richmond Newspapers, the Court based its finding of a right of access upon two primaryconsiderations: (1) the lessons of historical practice, and (2) the beneficial value of open proceedings to the functioning of the judicial process and the government as a whole. SeeGlobe Newspaper, 457 U.S. at 604-06, 102 S. Ct. at 2619. This has become known as ”the test of experience and logic.” 102 S. Ct. at 2620; Simone, 14 F.3d at 837. In its historical survey, the Court found that jury selection has, since its inception,“presumptively been a public process.” Press-Enterprise I, 464 U.S. at 505, 104 S. Ct. at 821. With regard to institutional values, the Court concluded that “openness . . . enhancesboth the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence [**30] in the system.” Id. at 508, 104 S. Ct. at 823. As such, the courtheld that the right of access clearly encompasses voir dire proceedings, so that closure ”must be rare and only for cause shown that outweighs the value of openness.” Id.; at509.
From a 2010 ruling in Presley v. Georgia by the U.S. Supreme Court (09-5270):
Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. …
Petitioner also argues that, apart from failing to consider alternatives to closure, the trial court erred because it did not even identify any overriding interest likely to be prejudiced absent the closure of voir dire . There is some merit to this complaint. The generic risk of jurors overhearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. If broad concerns of this sort were sufficient to override a defendant’s constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course. As noted in the dissent below, “the majority’s reasoning permits the closure of voir dire in every criminal case conducted in this courtroom whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators.” 285 Ga., at 276, 674 S. E. 2d, at 913 (opinion of Sears, C. J.).
There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must “be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, supra, at 510; see also Press-Enterprise Co. v.Superior Court of Cal., County of Riverside , 478 U. S. 1, 15 (1986) (“The First Amendmentright of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [the right to a fair trial]”).
I’ve asked some legal experts to weigh in on how/whether these cases can be applied to Kennedy’s decision in the Craver case. I’ll post here when I hear from them.
In the meantime, your thoughts?