Opinion
No. 80-1352
Decided December 23, 1980.
Criminal law — Broadcast coverage — Hearings — Broadcaster's right to notice thereof, to adduce proof, and to cross-examination.
IN MANDAMUS and PROHIBITION.
Relators are the owners and operators of Montgomery County television stations. Judge Carl D. Kessler, respondent herein, is a judge of the Court of Common Pleas of Montgomery County. Respondent is the presiding judge in the case of State v. Hutchison, case No. 80-CR-948, now pending in that court.
The relators are Grinnell Communications Corporation (WDTN-TV), Miami Valley Broadcasting Corporation (WHIO-TV), and Springfield Televison Corporation (WKEF-TV).
Relator WHIO-TV, as broadcast pool coordinator, in accordance with this court's Sup. R. 11 and the local rules of practice, gave notice to respondent of relators' intention to give coverage to the trial of State v. Hutchison. The notice was given prior to the September 30, 1980, scheduled commencement date of the trial. Subsequently, the parties to the criminal trial made motions that coverage of the trial be excluded.
"Coverage," as used herein, includes the televising, filming, broadcasting, videotaping, or recording by electronic means of the trial proceedings.
Hearings were held on September 9 and 12 in open court on the question of trial coverage. Respondent overruled relators' motion to participate in those hearings. At the hearings, Barbra Ann Bergman, a licensed psychologist, testified. Relators were allowed to cross-examine Ms. Bergman at the hearings, although they were not given prior notice to that effect. Relators were allowed to file briefs in support of permitting coverage of the trial. On September 22, respondent issued an order in effect sustaining the motions to exclude coverage of the trial.
Based on the testimony of Ms. Bergman, respondent disallowed coverage due to "the psychological makeup of the defendant [Hutchison] and the impact television coverage would have on him." Respondent determined that Hutchison might lose control at trial if coverage were allowed. Assuming respondent's decision excluding coverage was correct, we note that it was not the only alternative available to him under these circumstances. A trial judge has absolute control of the proceedings in his courtroom. If coverage were allowed and a defendant were to become disruptive, Crim. R. 43(B) provides a judge with the means of controlling such a defendant. That rule provides:
"Where a defendant's conduct in the courtroom is so disruptive that the hearing or trial cannot reasonably be conducted with his continued presence, the hearing or trial may proceed in his absence, and judgment or sentence may be pronounced as if he were present. Where the court determines that it may be essential to the preservation of the constitutional rights of the defendant, it may take such steps as are required for the communication of the courtroom proceedings to the defendant."
On September 25, relators filed this action in this court seeking an order prohibiting respondent from enforcing his decision excluding coverage or, in the alternative, an order compelling respondent to permit coverage of the trial. On September 30, this court granted relators' motion for an alternative writ of prohibition. Motions to dismiss filed by respondent and Joseph Hutchison, as intervenor, were denied by this court on October 29.
Messrs. Bieser, Greer Landis, Mr. Charles D. Shook and Mr. Edward H. Siddens, for relator Miami Valley Broadcasting Corporation.
Messrs. Pickrel, Schaeffer Ebeling and Mr. Paul E. Zimmer, for relator Grinnell Communications Corporation.
Coolidge, Wall, Matusoff, Womsley Lombard Co. L.P.A., and Mr. Roger Makley, for relator Springfield Television Corporation.
Messrs. Jeffrey, Snell, Rogers Greenberg and Mr. Harry P. Jeffrey, for respondent.
Mr. Sanford J. Edelman and Mr. Thomas A. Schaffer, for intervenor.
The issue presented is whether relators have the right to notice of the hearings on the trial coverage together with the right to play a meaningful role at those hearings. Due to the recent advent of the allowance of broadcast cast coverage of trials in Ohio and the experimental nature of our rules on such coverage, this is an issue of first impression for this court. This action has brought to our attention a possible deficiency in our rules.
Recently, in State, ex rel. Grinnell Communications Corp., v. Love (1980), 62 Ohio St.2d 399, this court discussed Sup. R. 11 and Canon 3 A(7) of the Code of Judicial Conduct, which govern the procedure for determining whether coverage will be permitted in a particular case. We held, at page 401, that "the Canons are mandatory in nature, not directory. Under Canon 3 A(7)(c) the trial judge shall permit broadcasting in the courtroom, pursuant to permission obtained in advance in writing and under conditions prescribed by the court and Rules of Superintendence, 3 A(7)(c)(i), only if the court determines that such broadcasting would not distract participants, impair the dignity of the proceedings, or otherwise materially interfere with the achievement of a fair trial or hearing, 3 A(7)(c)(ii). In other words, unless one of these disqualifying factors is found to be present, broadcasting is to be permitted."
Further, at pages 401-402, we stated that "this court has posited that it is presumed that news coverage of a court proceeding is not per se inconsistent with a fair and impartial trial.***[I]t is its [the trial court's] responsibility to scrutinize the case before it to see if any of the factors which rebut this presumption is present." (Emphasis added.)
"Scrutiny" of the case is not accomplished by allowing the adduction of evidence solely by the participants who are against coverage. The reasoned exercise of respondent's discretion can be made in the instant cause only after relators are allowed to present evidence at the hearings. Without an active and meaningful role played by relators in those hearings the hearings themselves would become meaningless and the resultant decision would merely represent the personal predilections of the presiding judge.
In Palm Beach Newspapers v. State (Fla.App. 1979), 378 So.2d 862, a case similar to the instant cause, the media were permitted to take part in the coverage hearings. The court, in Palm Beach, stated at page 864:
"We think it was appropriate for the court to require notice to the media of the hearing on the state's motion to curtail electronic and still photography. Ostensibly, the purpose of such a proceeding is for the presiding judge to hear evidence so that he can make findings as a predicate for the exercise of his discretion in granting or denying the motion. In the nature of things, we would expect the press to contest any proposed limitation upon full coverage as envisioned by Canon 3 A(7), supra. Therefore, the party moving for a limitation on coverage would seem to have the burden of adducing some credible evidence necessitating the limitation, while the press should have the right to cross-examination and the adduction of contrary proof."
We hold that under our rules relators have the right to notice, to adduce proof, and to cross-examination of witnesses.
For the foregoing reasons, a writ of prohibition will issue prohibiting respondent from enforcing his decision excluding coverage. Further, respondent is ordered to hold a new hearing on the issue of coverage. Respondent shall give notice to relators of the hearing, and provide relators with the right to adduce evidence and to cross-examine any witness testifying on behalf of those objecting to coverage.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.