{ "id": 1675819, "name": "COMMERCIAL PRINTING CO. and Bobbie TOSCA v. W. M. Bill LEE, Judge", "name_abbreviation": "Commercial Printing Co. v. Lee", "decision_date": "1977-07-18", "docket_number": "77-65", "first_page": "87", "last_page": "96", "citations": [ { "type": "official", "cite": "262 Ark. 87" }, { "type": "parallel", "cite": "553 S.W.2d 270" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "68 Cal. Rptr. 83", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1968, "opinion_index": 0 }, { "cite": "18 S.W. 2d 1020", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "179 Ark. 975", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726474 ], "opinion_index": 0, "case_paths": [ "/ark/179/0975-01" ] }, { "cite": "246 Ark. 210", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604079 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/246/0210-01" ] }, { "cite": "410 U.S. 113", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/410/0113-01" ] }, { "cite": "427 U.S. 539", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179887 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/427/0539-01" ] }, { "cite": "490 P. 2d 563", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4212013 ], "opinion_index": 0, "case_paths": [ "/ariz/107/0557-01" ] }, { "cite": "340 So. 2d 904", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9685423 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/so2d/340/0904-01" ] }, { "cite": "240 Ark. 47", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727662 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/240/0047-01" ] } ], "analysis": { "cardinality": 763, "char_count": 14254, "ocr_confidence": 0.835, "pagerank": { "raw": 5.057918514273091e-07, "percentile": 0.9373554211075626 }, "sha256": "389cd411ff38c50450613ae38e10381d505778680e135753f9caba372fe37631", "simhash": "1:264edf96f28e4d97", "word_count": 2417 }, "last_updated": "2023-07-14T19:27:42.068781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "George Rose Smith, J., concurs." ], "parties": [ "COMMERCIAL PRINTING CO. and Bobbie TOSCA v. W. M. Bill LEE, Judge" ], "opinions": [ { "text": "Carleton Harris, Chief Justice.\nThis litigation arises because of the trial court\u2019s action in permitting voir dire during a criminal trial to be conducted in chambers away from the press and public.\nOn March 2, 1977, on a change of venue from Arkansas County, the trial of State v. Antonio Clark commenced in the Circuit Court of Lonoke County. According to the abstract, which is rather meager, upon request of the attorneys representing Clark, the voir dire of the prospective jurors was held in chambers with only the court, the prosecuting attorney, the defendant, defendant\u2019s counsel, the court reporter, and the prospective juror who was being voir dired present. After interrogation had commenced, the circuit clerk, at request of the petitioner, advised the court that petitioner desired to be present in chambers during the voir dire, but the court advised the clerk that defense counsel wished to exclude the press \u201cto avoid adverse publicity for our client;\u201d this request was granted by the court, and the clerk was instructed to so advise members of the press who were desiring admission. According to the affidavit by the judge of the court, no personal request to sit in on the voir dire was made to him by members of the press. While it is not entirely clear from the record, it does not appear that petitioner knew that voir dire would be conducted in chambers, rather than the courtroom, until it had commenced. At any rate, this is not material to the decision herein, and the court was certainly advised that a member or members of the press desired admittance to the voir dire examination. Following the conclusion of the voir dire, the trial was resumed in open court. Thereafter, affidavits were executed by the judge of the court, the prosecuting attorney, and the two defense counsel, which set out the facts just enumerated, and petitioner filed this action seeking mandamus.\nPreliminary matters that relate to our decision should first be disposed of, though some are not argued in the briefs. Of course, voir dire of the jury is a part of the trial itself. Sirratt v. State, 240 Ark. 47, 398 S.W. 2d 63. The news media, even though not a party to litigation in the trial court, has standing to question the validity of such an exclusion. The Florida Supreme Court in State of Florida ex rel Miami Herald Publishing Co., etc., et al, Relators v. McIntosh, Circuit Court Judge, Respondent, 340 So. 2d 904, stated:\n\u201cIt has been recognized in Florida and elsewhere that the news media, even though not a party to litigation below, has standing to question the validity of an order because its ability to gather news is directly impaired or curtailed. This is so, because the public and press have a right to know what goes on in a courtroom *$* \u201d\nSee also Phoenix Newspapers, Inc. v. Jennings (Ariz.) 490 P. 2d 563, where the court said:\n\u201cOne further point should be briefly considered. Respondent urges that petitioner has no standing or right to interfere with a criminal action in which it is not a party. However, we think the constitutional right here sought to be enforced is of such significance that any member of the public has a standing to question his exclusion from a judicial hearing.\u201d\nIs the issue presented now moot? It is quite true that the voir dire was completed, and that the court\u2019s order only excluded the press and public during the voir dire, the trial thereafter resuming in the courtroom and subsequently concluding. However, we cannot agree that the issue is moot. In Nebraska Press Association, et al v. Stuart, Judge, et al, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), Chief Justice Burger, writing for the court, stated:\n\u201cThe Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one \u2018capable of repetition, yet evading review.\u2019 \u201d\nLikewise, in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, the United States Supreme Court held that Ms. Roe could still challenge the Texas abortion statute, although she was no longer pregnant, stating:\n\u201cIf that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial state, and appellate review will be effectively denied.\u201d\nCertainly the matter of excluding the public and press from the voir dire examination may well occur again, and yet, entirely \u201cevade review.\u201d In the case before us, there was no opportunity to petition the Supreme Court; there was no opportunity at the time the voir dire was being conducted to make a record. The Attorney General\u2019s office, representing the respondent, states:\n\u201cBy not asserting their claim to be present at a time when steps could have been taken to determine the validity of their request, the Petitioners must be deemed to have waived their right to subsequently complain of their exclusion.\u201d\nAs far as the lack of a personal request to the trial court, we have already commented on that circumstance, and certainly no reporter could have, with propriety, hammered on the door of the judge\u2019s chambers as a matter of demanding admittance, or of expressing objections to the court\u2019s ruling. it would appear that the petition for writ of mandamus was filed here as expeditiously as possible, same being tendered to the clerk of the court four days after the conclusion of the trial. There was no waiver.\nIt is argued that mandamus is not a proper remedy; in effect, this argument is simply that the matter of granting the request of counsel for the defendant was a matter of discretion with the trial court. We do not agree, for the reasons hereafter stated.\nFirst, however, let it be said that Article 7, \u00a7 4, of the Arkansas Constitution, in defining the jurisdiction and powers of the Arkansas Supreme Court, provides that this court shall have a superintending control over all inferior courts of law and equity, and in aid of its appellate and supervisory jurisdiction, shall have power to issue, inter alia, writs of mandamus, and to hear and determine the same. We pointed out in State v. Nelson, et al, 246 Ark. 210, 438 S.W. 2d 33, that acts of trial courts can be subject to review by this court under its supervisory jurisdiction, stating, \u201cWrits of mandamus, prohibition and certiorari are designed for the appropriate exercise of this jurisdiction, where appellate remedy is unavailable or inadequate.\u201d In an earlier case, Edmondson v. Bourland, 179 Ark. 975, 18 S.W. 2d 1020, a guardian ad litem had been appointed for Edmondson in her suit to construe a will. Mrs. Edmondson, through attorneys of her own selection, filed a motion to set aside the appointment of the guardian ad litem for her as an insane person; the court refused to permit the motion to be filed and also struck an answer and cross-complaint which had been filed a few days before by these attorneys, the court proceeding on the ground that her defense to the action could only be made by the guardian ad litem appointed by the court. Pointing out that mandamus may be employed to prevent irreparable injury, as where the remedy by appeal is inadequate, this court held mandamus to be an appropriate remedy and commanded the trial court to proceed in accordance with the views stated in the opinion.\nAs stated, the matter at issue was not one which addressed itself to the discretion of the trial court, for the court lacked the authority to prohibit the public and press from the voir dire examination \u2014 which is the sole question presently before this court. Indeed, as far as the record reflects, there was not even any attempt to show how the defendant Clark would be prejudiced unless the voir dire was conducted in chambers with only court officials present. Rather, the record only reveals that a request was made by defense counsel that this be done for the reason of avoiding \u201cadverse publicity for our client.\u201d Actually, we have a statute, Ark. Stat. Ann. \u00a7 22-109 (Repl. 1962), enacted in 1838, which permits the public to observe the administration of justice in our courts. Where there are statutory and case law exceptions, none are applicable here.\nReally, from a practical standpoint, of all the phases of a criminal trial, we can think of less reason to exclude the public, including the press, during the voir dire than at most any step taken during the course of litigation. Normally, lawyers ask prospective jurors if they know anything about the facts of the case \u2014 if they have talked with any person concerning the facts who purports to be a witness \u2014 if they are represented by one of the attorneys involved \u2014 their feelings about the possible punishment that might be imposed \u2014 or if there is any reason why they could not give both the state and the defendant a fair and impartial trial. Facts of the case are not generally discussed in voir dire; of course, publicity about the circumstances of the crime itself \u2014 any statements that had purportedly been made by witnesses, defendant, etc., were published when the crime happened or when the arrest was made.\nCertainly members of the public, probably including members of a victim\u2019s family, have the right to hear the voir dire examination of individual jurors. This may well have a salutary effect. Cases have been reversed in this court because of answers given by prospective jurors on voir dire which subsequent investigation established were false, or at least incorrect, and which might have well disqualified the prospective juror. Particular spectators in a courtroom may know of such facts and call them to the attention of interested parties.\nOne thing is particularly unusual about this case, viz, that the request for the closed voir dire hearing was made by the defendant.\nArticle 2, \u00a7 10, of the Arkansas Constitution provides that an accused in a criminal prosecution shall \u201cenjoy the right to a speedy and public trial.\u201d\nBut, says the respondent:\n\u201cThe act of the Respondent was done at the request of the defendant and pursuant to the furtherance of a fair and proper administration of justice. The Petitioners have failed to show that they have suffered any prejudice due to the Respondent\u2019s act; ...\u201d\nThis is immaterial, for though a defendant is guaranteed a public trial, there is nothing in our constitution or the federal constitution which guarantees a private trial. After all, members of the public have an interest in the trial of one charged with a felony, for a crime is a wrong against the public, and affects every citizen.\nThis is no new premise. Probably the best known legal writer of all time, Sir William Blackstone, a member of His Majesty\u2019s Court of Common Pleas during the 18th Century, in his Commentaries on the Laws of England, Volume 4, Page 1428, Paragraph 5 (Lewis\u2019 Edition), stated:\n\u201cPublic wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity.\u201d\nLay citizens, in criticizing courts in reversing or dismissing criminal cases because of the state\u2019s failure to comply with some legal requirement (though perhaps thought to be technical), frequently comment that the courts scrupulously observe every right of a defendant, but sometimes seem to overlook that the public also is directly affected by criminal acts and has a direct interest in the outcome of the proceedings.\nAdditionally, the courthouses are paid for with public funds; the judges, jurors, state\u2019s attorney (and defense attorneys who have been appointed by the court because of the indigency of their clients) are paid with public funds. The public has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice, and it would require unusual circumstances for this right to be held subordinate to the contention of a defendant that he is prejudiced by a public trial (or any part thereof).\nAs stated previously, we have only one question before us, viz, was the court\u2019s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic \u201cNo!\u201d\nIn conclusion, whether the petition be treated as a petition for writ of mandamus, or as a petition for declaratory judgment, is really of no consequence. Of course, the case being fully disposed of in the trial court, the granting of the writ would be an empty gesture. Suffice it to say that if the circumstances had permitted the presentation of this petition to this court before the voir dire was conducted \u2014 it would have been granted.\nThe court erred in excluding the press and public from the voir dire.\nGeorge Rose Smith, J., concurs.\nNo written order was issued, but of course the court\u2019s pronouncement was still an order which was fully effective and prevented the attendance of members of the press.\nOf course, in the litigation before us, there could have been no appeal because petitioner was not a party to the litigation.\nArk. Stat. 22-404.1 (Repl. 1962).\nMany cases make clear that in cases of this nature the right of the press is the same as that of members of the public, no greater, no less. For example, see State of Florida Ex Rel Miami Herald Publishing Co., etc., et al, Relators v. McIntosh, Circuit Court Judge, Respondent, supra; Oxnard v. Superior Ct. of Ventura County, 261 ACA 505, 68 Cal. Rptr. 83 (1968).\nClark was convicted, but of course the decision here rendered can have no effect upon the case since the exclusion of the public and press was at the request of his attorneys.", "type": "majority", "author": "Carleton Harris, Chief Justice." }, { "text": "George Rose Smith, Justice,\nconcurring. Today\u2019s opinion really should have been delivered on the Fourth of July, as it probably would have been in, say, 1949 or 1955, when the court customarily sat every Monday during the term, even on Independence Day. Today\u2019s opinion would, I think, have added brilliance to the celebration.", "type": "concurrence", "author": "George Rose Smith, Justice," } ], "attorneys": [ "Coleman, Gantt, Ramsay & Cox, by: William C. Bridgfortk and Spencer F. Robinson, for petitioners.", "Bill Cinlon, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for respondent." ], "corrections": "", "head_matter": "COMMERCIAL PRINTING CO. and Bobbie TOSCA v. W. M. Bill LEE, Judge\n77-65\n553 S.W. 2d 270\nOpinion delivered July 18, 1977\n(In Banc)\nColeman, Gantt, Ramsay & Cox, by: William C. Bridgfortk and Spencer F. Robinson, for petitioners.\nBill Cinlon, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for respondent." }, "file_name": "0087-01", "first_page_order": 119, "last_page_order": 128 }