Summary
holding right of access does apply to delinquency proceedings
Summary of this case from U.S. v. Three JuvenilesOpinion
No. 9204582.
Decided June 9, 1992.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Joseph Russo, Assistant Prosecuting Attorney, for plaintiff state of Ohio.
Timothy Haffey, Assistant Public Defender, for N.H.
I. INTRODUCTION
The issue presented to this court is novel because, in seeking the closure of the hearings and a "gag order," the child, N.H., challenges the truth of the publicity, rather than the inordinate amount of the publicity. A motion to limit access to court proceedings, or a motion for an order to restrain participants in a proceeding from discussing a case, is ordinarily used to prevent an inordinate amount of publicity about a case from tainting the potential jurors of a particular venue. A change of venue is requested if the jurors of a venue have already been tainted by an inordinate amount of publicity. The amount of publicity concerning a case is usually at issue, rather than the truth and veracity of the publicity.
The child in this case, N.H., asks this court to limit public access to these proceedings, and to issue a gag order restraining certain individuals from discussing the child's "alleged conduct or background, and any evidence pertaining to" him in this matter. At the heart of this issue are his prior juvenile record, which may not be used against him by virtue of R.C. 2151.358(H) and Evid.R. 609(D), and his right under our law to be presumed innocent until he is proven guilty. See Morei v. United States (C.A.6, 1942), 127 F.2d 827; United States v. Vealey (N.D.Ohio 1970), 308 F. Supp. 653.
This court adjudged N.H. delinquent on one count of sexual battery in his only prior case. In the present case, the state has moved this court to transfer the child to the General Division for criminal prosecution as an adult. It should be noted that such a request to transfer for adult criminal prosecution is rarely made for a juvenile with a prior record comparable to the prior record of N.H., other than in homicide cases.
The child asserts that a two-segment television news broadcast on April 8 and 9, 1992 harmed him by endangering the fairness of these proceedings, in violation of his Sixth Amendment right to fair trial. See Lingafelter v. Moore (1917), 95 Ohio St. 384, 117 N.E. 16. He also asserts that his statutory right to be tried as a juvenile has been endangered by the news broadcast. See R.C. 2151.23(A)(1). N.H. argues that:
(1) The broadcast in question is a fictional scenario falsely portraying him in the prior case as a "rapist" and a "kidnapper," who received probation because his case fell through the cracks of an overburdened juvenile court;
(2) The trier of fact in this matter, whether it is a jury pursuant to a transfer to the General Division or a judge in juvenile court, is likely to harbor the erroneous belief that he has prior record for "rape" and "kidnapping" and, consequently, be predisposed to return a guilty verdict against him;
(3) The state's decision to seek his transfer may have been influenced by the fictional scenario of the broadcast; and
(4) The fictional scenario may influence the trial judge to transfer his case to the General Division for criminal prosecution.
It is this judge's view that N.H. might well be considered insignificant cannon fodder in the clash between the right to a fair trial and the freedom of the press, save and except for the state's motion to transfer him for criminal prosecution. The specter of a jury trial in the General Division, and the attendant penalty upon conviction, raises the legal stakes for N.H.
II. THE FACTS
N.H. does have a prior juvenile record. In 1991 the court adjudged him delinquent on one count of sexual battery. Sexual battery is a felony of the third degree if committed by an adult. N.H. being a first-time offender on a third degree felony, this court suspended a commitment to a state juvenile correctional facility, and conditioned probation on his good behavior. Probation is a typical disposition for a first offender of a third degree felony, whether the offender is a juvenile or an adult.
In the present case, N.H. is charged with aggravated robbery and kidnapping. The charges arise out of an incident in which N.H. and an adult allegedly abducted the victim, took his wallet and locked him in the trunk of his own car. N.H. then allegedly drove the victim's car about until the early morning, while the victim remained locked inside of the trunk, and left the victim in the trunk when he went home to sleep the next morning. Probably because of the bizarre fact pattern of this case, most of the local media published or broadcast stories about the alleged kidnapping and robbery in the days immediately following the incident.
The two-segment broadcast in question aired subsequent to the immediate publicity surrounding the alleged kidnapping and robbery, but prior to the state's filing of a motion to transfer N.H. to the General Division. The reporter of the broadcast in question attempted to elaborate upon the original reports of the incident, and also to relate the already bizarre facts from a new, and provocative, angle.
III. THE PROBLEM
It has been said that the perception of a case is of greater consequence than its reality. This may explain the inexplicable verdict in the first Rodney King trial. See Girdner, Four L.A. Officers Acquitted in Beating; Violence Erupts (Apr. 30, 1992) 3, Boston Globe. The case involving the videotaped beating of Rodney King is a most dramatic illustration of publicity impinging on a fair trial. Because much of the pretrial publicity was considered to be in favor of the defendants, this case also aptly illustrates that the public's interest in a fair trial is no less vital than that of the accused.
As a result of the inordinate amount of publicity, both the criminal record of the victim, Rodney King, and the notion that he was acting under the influence of PCP, became well known to the public prior to the trial. Ordinarily, the members of a jury would have no advance knowledge of the criminal record of a party, a victim or a witness. The members of a jury would not learn of the criminal record, unless such a person testified during the trial, and was impeached because of his record on cross-examination.
The public perception was based, in part, on the truth that Rodney King had a criminal record, even though that truth could not be presented to the jury in the absence of his testimony. The perception was also based on the erroneous belief that he was under the influence of PCP. See Worthington, Nurse Testifies King Showed No Signs of PCP (Mar. 9, 1993) 8, Chicago Tribune. This perception certainly assisted the defense attorney in placing the victim, Rodney King, on trial. The prosecutor's quandary was obvious to most in the legal community. Should he call Rodney King to tell the jury in graphic detail of the beating, of his injuries and of his pain and suffering, but thereby subjecting him to a cross-examination that would officially expose his criminal record? Or should he endeavor to prove the case without the victim's testimony, hoping that the jury would not remember the victim's criminal record in spite of the inordinate amount of pretrial publicity? King did not testify. The rest is history. The immediate and violent reaction to the verdict is one of the more tragic chapters in our history as a nation. See Cannon, 24 Dead, 900 Injured in L.A. Rioting (May 1, 1992) 1, Washington Post.
In the first Rodney King case, the public perception was based in part on truth and in part on erroneous belief. The child, N.H., argues that the perception of his case is based entirely on erroneous belief. The child asserts that the two-segment broadcast in question would lead prospective jurors to harbor the erroneous belief that he has a prior juvenile record for "rape" and "kidnapping," even though his actual juvenile record for sexual battery could not be used against him; that only one juror need harbor such an erroneous belief of a fictional record in order to taint the jury during its deliberations; and that because of the unique and bizarre fact pattern of this matter, at least one juror is likely to recall the two-segment broadcast and harbor such an erroneous belief.
IV. THE EVIDENCE
This court conducted an evidentiary hearing on the child's motions, as required by In re T.R. (1990), 52 Ohio St.3d 6, 556 N.E.2d 439. At the hearing, the court listened to the arguments of counsel and either received or arranged to receive certain stipulated exhibits. The exhibits included:
(1) Exhibit A, which is a videotape of the two-segment broadcast in question, but does not include the introduction or conclusion to the first segment and the promotional spots heralding the broadcast;
(2) Exhibits B, C, D, and E, which are newspaper accounts of the bizarre fact pattern of this case;
(3) Exhibits F and G, which are affidavits of viewers of the first segment; and
(4) Exhibit H, which is the affidavit of William Brooks, Manager of News Operations at the television station in question.
Exhibit A is a partial videotape of the two-segment broadcast at issue. The reporter's introduction to the first segment is missing from the videotape. The introduction contains the startling revelation that the child had been charged with "rape" and "kidnapping" in the prior case. Also missing from the videotape is the conclusion of the first segment featuring three reporters commenting on the case, one of them stating categorically that "it wasn't sexual activity, it was rape." Promotional spots heralding the story in question as the lead story of the 11 p.m. news were broadcast throughout the evening of April 8. The videotape of the promotional spots is not available, however. This court has good reason to believe that the words "rape" and "kidnapping" were used in the promotional spots. Certainly, the prior "rape" and "kidnapping" was the provocative news angle revealed by the reporter.
It is clear that the child was not charged with rape in the prior case. Before the broadcast of the first segment, this court advised the reporter of this fact. The police investigators filed an original complaint charging him with sexual battery in the prior case. This original charge is contained in the complaint in the very same court file that the reporter displayed to the television audience as an authenticating prop during the first segment of the broadcast. However, despite this court's precautions, the word "rape" was used on at least five occasions during the first segment to either describe one of the charges against him, or to characterize his conduct in the prior case. The word "rape" was used once in the second segment. The number of times the word "rape" was used in the promotional spots is unknown. From the perspective of the viewer, the filming of the court file authenticated the reporter's claim that the sex offense was indeed "rape." If there was any doubt left for the viewers, then the final comment of the segment — "but it wasn't sexual activity, it was rape" — put that doubt to rest.
The term "kidnapping" was used in both segments. The number of times the word "kidnapping" was used in the promotional spots is unknown. The reporter used the term "kidnapping" either to describe the previous charge against the child, or to characterize his conduct in the prior case, in spite of the fact that the state dismissed this charge for lack of evidence. R.C. 2151.358(F), one of the statutes governing juvenile court records, provides for the expungement of the records pertaining to the dismissed kidnapping charge. This provision is consistent with our fundamental notion that, even after being charged, a person is presumed innocent until proven guilty. In essence, the reporter refiled the dismissed charge in the court of public opinion, prosecuted the child in absentia during the two-segment broadcast, and convicted him. So much for the presumption of innocence.
Just as there is something terribly wrong with ignoring this fundamental concept on which our justice is based, there is also something terribly wrong with the reporter using an official court file as a prop to lend authenticity to the scenario, without being bound by the simple truth reflected in that file that the child was never charged with "rape." Also, during the second segment, the reporter staged a scene of listening to an audiotape recording of the beginning of the trial of the child's prior case. By staging the scene, the reporter gave greater credibility to the scenario presented by the broadcast. The reporter selectively used material from the audiotape recording, excerpting a rather graphic description of the "sexual activity." However, other information from the same audiotape recording which was inconsistent with the reporter's scenario was not likewise attributed to the tape. Instead, the reporter attributed this inconsistent, but true, information to the "claims" of others, thereby diminishing the authenticity of such information.
V. APPLICABLE LAW
R.C. 2151.35(A) and Juv.R. 27 provide that the general public may be excluded in the hearing of any case in juvenile court, and only those persons admitted who have a direct interest in the case. These provisions, as applicable to the confidentiality of juvenile court proceedings, have been the subject of two recent Supreme Court of Ohio cases.
In State ex rel. Fyffe v. Pierce (1988), 40 Ohio St.3d 8, 531 N.E.2d 673, the Supreme Court of Ohio determined that the word "may," as used in the statute and the rule, is not mandatory and permits the juvenile court to exercise its discretion in opening or closing a delinquency hearing. Two years later, in In re T.R. (1990), 52 Ohio St.3d 6, 556 N.E.2d 439, the Supreme Court of Ohio determined that the "open courts" provision of the Ohio Constitution does not apply to juvenile court proceedings. Additionally, the Supreme Court of Ohio held that there is no presumption in favor of public access to juvenile court proceedings regarding child neglect, abuse and dependency matters. Id. at 17, 556 N.E.2d at 450. According to In re T.R., the trial court may close such a proceeding if it finds that "there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the proceedings, and the potential for harm outweighs the benefits of public access." Id. at 18, 19, 556 N.E.2d at 451.
A. Juvenile Court Proceedings Do Not Operate Under a Presumption of Openness
Prior to In re T.R., the issue of public access to juvenile court proceedings had not been addressed by either the United States Supreme Court or the Supreme Court of Ohio. Id., 52 Ohio St.3d at 11, 556 N.E.2d at 446. The decision in In re T.R. was based in part on the rationale applied in United States Supreme Court decisions in which public access to criminal prosecutions had been at issue, and which delineate the public interest and private rights impacted by the public's right of access to criminal proceedings. The decision was also based on an analysis of the history, purpose and unique concerns of juvenile court. The In re T.R. court weighed the conflicting interests of the child and the public attendant to juvenile court proceedings, and created a standard to be applied when determining the degree of public access appropriate in child neglect, abuse and dependency proceedings. The Supreme Court of Ohio concluded that as juvenile court proceedings have historically been closed to the public, and as the public's right to access might be outweighed by potential psychological harm to the child, juvenile courts do not operate under a presumption of openness. Id., 52 Ohio St.3d at 16, 556 N.E.2d at 450.
In In re T.R., the trial judge tried to protect a child from pervasive and potentially psychologically damaging publicity during a titillating custody dispute between her surrogate mother, her adoptive mother and her biological father. The Supreme Court of Ohio upheld the trial judge's decision to close the proceedings. In doing so the court weighed the public's interest in access to the trial against the potential psychological harm to the child. The Supreme Court of Ohio recognized some benefits may exist in conducting the trial in public, such as adding to the public awareness of the pitfalls of surrogacy contracts or educating the public in the decision making process of the juvenile court. However, it held that the trial judge had not abused his discretion in closing the proceedings.
B. The Supreme Court of Ohio's Holding in In re T.R. Can Be Applied to This Case
The Supreme Court of Ohio noted that public access to juvenile court proceedings can promote informed public involvement in government and enhance public confidence in the juvenile courts, and that these interests should be considered before any juvenile court judge decides to restrict public access to the courtroom. Id. But the Supreme Court also noted that juvenile court proceedings would not necessarily benefit from the public's access. The court stated that mere curiosity "does not necessarily translate into a significant positive role." Id., 52 Ohio St.3d at 16, 556 N.E.2d at 450. Because in many cases the effectiveness of the juvenile courts depends on its confidentiality, the Supreme Court held that the public's interest in access to juvenile court proceedings is not sufficient to create a presumption of openness. Id.
The In re T.R. standard can be adapted to guide this court's decision in this case. Although the Supreme Court did not explicitly include delinquency proceedings in its holding, the court reached its conclusion that there is no presumption that juvenile court proceedings regarding child neglect, abuse and dependency matters are either open or closed through an analysis of juvenile court proceedings as a whole. Id., 52 Ohio St.3d at 18, 556 N.E.2d at 451. Therefore, this court now determines that the conclusion of the Supreme Court in In re T.R. also applies to delinquency cases. The court stated: "Because there is no presumption, the juvenile court, must in each case, weigh the competing interests for and against public access." Id. The obvious differences between delinquency cases and child abuse, neglect and dependency cases can be accounted for by this court through varying the weight given to the conflicting interests, as they were identified by the In re T.R. court.
1. The Public Has a Right of Access to Criminal Proceedings
The public's right of access to criminal proceedings is based primarily on the premise that the public is a party to all criminal proceedings. "Criminal cases are prosecuted in the name of the people because crimes are public wrongs affecting members of society." State ex rel. The Repository v. Unger (1986), 28 Ohio St.3d 418, 420, 28 OBR 472, 474, 504 N.E.2d 37, 39. In Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973, the United States Supreme Court recognized that because of an "unbroken, uncontradicted history, supported by reasons today as valid as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice." Id. at 573, 100 S.Ct. at 2825, 65 L.Ed.2d at 987. Public access plays a structural role in our criminal justice system, because it secures and fosters an accountability to the public that would be absent if the courts operated behind closed doors. "[T]he First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government." (Emphasis sic.) Id. at 587, 100 S.Ct. at 2833, 65 L.Ed.2d at 996 (Brennan, J., concurring).
2. The Public Has an Analogous Right of Access to Delinquency Proceedings
In In re T.R., the Supreme Court of Ohio stated that the public may have an interest in delinquency proceedings which is analogous to its interest in criminal proceedings. Id., 52 Ohio St.3d at 16, 556 N.E.2d at 449. This court now holds that the public does have an interest in access to delinquency proceedings which corresponds to the public's interest in criminal matters. The closer the alleged delinquent is to the age of eighteen, the greater is the public's interest in access to the proceedings. Moreover, the public's interest is accentuated when the alleged delinquent is the subject of a pending motion to transfer to General Division for prosecution as an adult, because, at such time, the gap between the juvenile court and the General Division is at its narrowest. The public's interest, however, must be weighed against the unique confidentiality concerns of the child, which exist in all juvenile court proceedings, as demonstrated by the Supreme Court of Ohio in In re T.R.
Specifically addressing delinquency proceedings, the Supreme Court of Ohio stated:
"[I]t is the law's policy `to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.' A delinquent child is not considered a criminal, and the civil disabilities ordinarily following a criminal conviction do not attach. A delinquent child who has been successfully rehabilitated may apply to have the record of his case sealed, R.C. 2151.358(D), and the court may order that `the proceedings in which the person was adjudicated a delinquent child be deemed never to have occurred.' R.C. 2151.358(E)." Id., 52 Ohio St.3d at 15, 556 N.E.2d at 449.
3. The Public's Right of Access Must Be Weighed Against the Unique Confidentiality Concerns of Juvenile Court
In order to differentiate those court proceedings which the public is entitled to attend, and those which it is not, the Supreme Court of Ohio expressly adopted the United States Supreme Court's language in holding that "the public's qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role." In re T.R., 52 Ohio St.3d at 12, 556 N.E.2d at 446.
In In re T.R. the Supreme Court of Ohio specifically addressed the harmful psychological effects of intense public scrutiny of the events which have brought a child into juvenile court for child abuse, neglect and dependency proceedings. Acknowledging that such effects are difficult to measure and predict, the court decided that a juvenile court may restrict public access in such cases if there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the proceedings. Id., 52 Ohio St.3d at 18, 556 N.E.2d at 451. In delinquency matters, "the child is at least partially responsible for the case being in court * * *." Therefore, the state may have less of an interest in protecting the psychological well-being of the child concerned. Id. at 16, 556 N.E.2d at 450. When the matter concerns delinquency, greater weight can be given to the public's interest in observing the proceedings, because the matter involved is much closer to the nature of adult criminal proceedings than to the nature of child neglect, abuse and dependency cases. Also, the interest of a fifteen-, sixteen-, or seventeen-year-old child in a closed proceeding in a delinquency matter is primarily the protection of the fairness of the proceedings, as is the interest of an adult defendant's in a closed proceeding.
C. An Infringement on the Public's Right of Access Must Be Both Efficient and Effective in Protecting the Fairness of the Proceedings
The United States Supreme Court has mandated that, when addressing fairness concerns, the trial judge must limit the infringement on the public's right of access to those methods which are both efficient and effective in accomplishing the goal of protecting the fairness of the proceedings. "Closure requires a specific finding that 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 fair trial rights." Press-Enterprise Co. v. Superior Court (1986), 478 U.S. 1, 14, 106 S.Ct. 2735, 2743, 92 L.Ed.2d 1, 13. The press and public cannot be excluded from a criminal trial or hearing when the constitutional rights of a criminal defendant to a fair trial can be protected by traditional methods of voir dire, continuances, changes of venue, jury instructions or sequestration of the jury. State ex rel. Beacon Journal Publishing Co. v. Kainrad (1976), 46 Ohio St.2d 349, 75 O.O.2d 435, 348 N.E.2d 695.
D. The Public's Right of Access is not Dependent on the Competency of an Individual Reporter
It is clear that the access of the public to the courts is in no way dependent on the competency, motivation or integrity of any one individual reporter. Nor should any one reporter's inaccuracies in reporting a court proceeding, however blatant or harmful, determine the access of the public to future court proceedings regarding a subsequent event. This truth has been recognized by the United States Supreme Court since the early days of First Amendment jurisprudence. "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any less necessary the immunity of the press * * *." Near v. Minnesota (1931), 283 U.S. 697, 720, 51 S.Ct. 625, 632, 75 L.Ed. 1357, 1369.
VI. THE DECISION
A. The Broadcast in Question Had No Influence on the State's Decision to Seek the Transfer of N.H. to General Division for Prosecution as an Adult, Nor Will the Broadcast Have Any Influence on This Court's Decision in This Matter
With respect to the child's arguments that the state's decision to seek his transfer to General Division for prosecution as an adult may have been influenced by the alleged fictional scenario presented in the broadcast, there is no evidence whatsoever that the broadcast influenced the state. The agents of the state who participated in this case know well the difference between the facts of the child's prior case and the scenario presented in the broadcast. Similarly, this court also knows the difference, and will be able to reach a decision on the motion to transfer without being influenced by the broadcast in question.
B. The Broadcast in Question May Negatively Affect the Child's Right to a Fair Trial Should He be Tried as an Adult by a Jury
With respect to the child's right to a fair trial, however, this court believes that the child has been harmed because the fairness of the proceedings are likely to have been endangered by the two-segment broadcast. Upon careful review of the exhibits, this court finds that there is a reasonable and substantial basis for believing that one or more jurors in a Cuyahoga County jury trial of this matter are likely to have formed an erroneous belief from the broadcast in question that the child has a prior record for "rape" and "kidnapping," and therefore be predisposed to find him guilty. The likelihood of jury taint is significant in this matter because of the state's motion to transfer.
Ordinarily, voir dire would be an effective means of eliminating jurors who may have been exposed to an inordinate amount of pretrial publicity. Unfortunately for N.H., voir dire may not be an effective tool to test whether a prospective juror can render a fair and impartial verdict, because this is not a case involving an inordinate amount of pretrial publicity. This court is concerned that a juror may not remember the two-segment broadcast until after the bizarre fact pattern of the incident completely unfolds at or near the end of the state's presentation of evidence. It would then be too late to seek a change of venue.
In spite of the likelihood that the fairness of future proceedings concerning this incident has been endangered, under the circumstances of this case and as will be discussed in subsequent paragraphs, a gag order and a complete closing of the proceedings in order to protect the child's right to a fair trial would be much too broad a remedy.
C. The Closing of Both the Probable Cause Hearing and the Amenability Hearing Would not Meet the Requirement That It be an Efficient and Effective Means of Protecting the Fairness of the Proceedings
An order which was ineffective in preventing the harm at issue would not meet the United States Supreme Court's mandate that it be narrowly drawn. See Press-Enterprise, 478 U.S. at 14, 106 S.Ct. at 2743, 92 L.Ed.2d at 13. Even though this court acknowledges the potential harm to the child's right to a fair trial that the broadcast in question is likely to have caused, the United States Supreme Court has been very clear that the trial court must narrowly draw any orders which limit public access to court proceedings or which limit trial participants' First Amendment rights. At the evidentiary hearing, this court suggested to the defense counsel that by asking to close the proceedings, he was asking the farmer to close the barn door after the barn animals had already been stolen. In spite of the reasonable and substantial basis for believing that the child has been harmed and the fairness of the proceedings has been endangered by the scenario presented in the broadcast, there is no reason to believe that any more harm would result from permitting public access to the further proceedings of this case. Moreover, the two-segment broadcast in question was created without any reporter present in the courtroom for any of the proceedings of the prior case. Limiting public access, therefore, would not have prevented the creation of the two-segment broadcast. It would be futile to close the court proceedings at this point in the hope of avoiding a continuation of the reporter's scenario.
D. Pursuant to the Rationale Applied in In re T.R., the Probable Cause Hearing Will be Open to the Public, But the Amenability Hearing Will be Closed in Part
As discussed earlier, delinquency matters concerning older juveniles are in substance analogous to adult criminal proceedings, especially when the older juvenile is subject to bindover proceedings. By contrast, while public access to a delinquency adjudicatory hearing may increase the integrity of the proceedings, public access to a child's social and family history at a dispositional hearing rarely does more than feed the public's appetite for tabloid journalism.
Public access ought to remain open to those portions of the bindover proceedings which directly relate to the nature of the crime alleged to have been committed. Therefore, the public will have access to the probable cause hearing. In reaching this decision, this court is acting consistently with the rationale of the Supreme Court of Ohio's decision in In re T.R., and with the United States Supreme Court's determination that the public has a constitutionally protected, although not absolute, interest in observing criminal proceedings.
Additionally, the child in In re T.R. was only five years old when her case reached the Supreme Court of Ohio, while N.H. is fifteen years old. Consequently, in determining whether to open or close the probable cause hearing, it does not seem necessary for this court to give the same weight given to the potential psychological damage to N.H. that is evident in the Supreme Court of Ohio's decision in In re T.R.
Certain portions of any amenability hearing ought to be closed, because some portions of such hearings often involve information about a child's psychological, social and family histories similar to information presented in child neglect, abuse and dependency cases. Closing such portions of any amenability hearing protects N.H. from the potential psychological harm that could result from the intensive public scrutiny of his social history, and is consistent with the historical purpose and nature of our juvenile court system.
The public ought to have access to those parts of any amenability hearing involving the child's prior juvenile record and previous efforts at treatment or rehabilitation. The rationale for public knowledge of this information is similar to the rationale for public knowledge of nature of the crime alleged, in that it facilitates the public's meaningful involvement in our justice system.
If N.H. is in fact transferred to the General Division by this court, there will then be time enough for the press to serve the public tantalizing tidbits of the child's social, psychological and family history. This court will not permit N.H.'s right to confidentiality as a juvenile to be further violated, except as can be justified by the public's right of access to those proceedings that are analogous to criminal cases.
VII. OBSERVATION
The reporter responsible for this broadcast blatantly disregarded the facts of N.H.'s prior adjudication in her zeal to provide the public with appetizing "news." This court hopes that this one reporter, at least, has come to understand the cost of her irresponsible journalism.
The child is not without remedy for the harm already done by the two-segment broadcast. In addition to any civil remedies, N.H. would have a reasonable basis to seek a change of venue to a forum beyond the reach of the broadcast in question, in the event this case is transferred to the General Division for criminal prosecution.
The public may be without remedy, however. If N.H. is transferred for criminal prosecution, what was once a case of straightforward facts may be unnecessarily complicated by the question of whether he can be fairly tried in Cuyahoga County. Resolution of this question may very well require a change of venue to a distant county, at great expense to the public. The public would have no means to recoup the expense attendant to a change of venue. However, perhaps it will find some consolation in the words of former United States Supreme Court Justice Robert Jackson: "The price of freedom * * * of the press is that we must put up with, and even pay for, a good deal of rubbish." United States v. Ballard (1944), 322 U.S. 78, 95, 64 S.Ct. 882, 890, 88 L.Ed. 1148, 1158 (Jackson, J., dissenting).
VIII. ORDER
Based on the foregoing, this court:
(1) permits public access to the Juv.R. 30(A) probable cause hearing and to those portions of any Juv.R. 30(B) amenability hearing that are related to the child's prior juvenile record and efforts previously made to treat or rehabilitate the child;
(2) limits access to the remaining portion of any Juv.R. 30(B) amenability hearing to the parties, their attorneys, and witnesses, due to the confidential nature of the social history information that would be the subject of portions of such a hearing;
(3) permits public access to any decisional hearing that may be conducted; and
(4) denies the motion for a gag order.