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24835 - In Re: Greenville News - The State v. Joseph Sheppard

Davis Adv. Sh. No. 31
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





In Re Greenville News, Appellant

The State, Respondent

v.

Joseph Sheppard, Respondent,







Appeal From Greenville County

Costa M. Pleicones, Circuit Court Judge





Opinion No. 24835

Submitted April 22, 1998 - Filed September 14, 1998





VACATED





Amy M. Snyder, of Haynsworth, Marion, McKay &

Guerard, of Greenville, for appellant.





Solicitor Robert M. Ariail, of Greenville, for

respondent, State of South Carolina..





PER CURIAM: "The Greenville News" (Newspaper) appeals an order

closing a pre-trial hearing in the death penalty trial of Joseph Sheppard. We

vacate the trial court's order.





FACTS

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GREENVILLE NEWS - STATE v. SHEPPARD





The trial court closed Sheppard's Jackson v. Denno1 hearing, finding "a

substantial probability exists of prejudice" due to oral statements purportedly made

by Sheppard. At the conclusion of the hearing, the court reiterated there was a

manifest necessity to close the hearing, and no alternative to closure.





Newspaper appeals, contending the court's closure of the hearing violated this

Court's opinions in Ex Parte First Charleston Corp., 329 S.C. 31, 495 S.E.2d 423

(1998), and Ex Parte Island Packet, 308 S.C. 198, 417 S.E.2d 575 (1992). We

agree.





DISCUSSION

In First Charleston, we recognized the presumption of openness applied to

preliminary pre-trial hearings. See also Waller v. Georgia, 467 U.S. 39, 104 S.Ct.

2210, 81 L.Ed.2d 31 (1984) (in which Supreme Court articulated a sixth

amendment right of public access to pretrial suppression hearings). Relying on

Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92

L.Ed.2d 1 (1986) (Press-Enterprise II), we stated:





... [T]o justify closure, the court must make specific findings that

closure is "essential to preserve higher values and is narrowly tailored

to serve that interest." Where the accused asserts his right to a fair

trial to justify closure, the court must make specific findings (1) that

there is a substantial probability of prejudice from publicity that

closure would prevent and (2) there are no reasonable alternatives to

closure that would adequately protect the defendant's fair trial rights.

Whether a trial judge erred in closing a hearing depends on the

particular facts of each case. Further, through voir dire, a trial judge

could identify those jurors whose prior knowledge would disable them

from rendering an impartial verdict.

First Charleston, 329 S.C. at 34-35, 49D S.E.2d at 424-425 (Emphasis supplied;

internal citations omitted).





Here, although the trial court ruled there was a manifest necessity of closure

and no alternative, there are simply no facts supporting this ruling. See Press-

Enterprise v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d

629, 638 (1984)(Press-Enterprise I) (presumption of openness may be overcome only

by an overriding interest ... that interest must be articulated alone, with findings

specific enough that a reviewing court can determine whether the closure order was

properly entered). Merely ruling there is a "substantial probability of prejudice and

no reasonable alternative to closure," without substantiating facts, is simply

insufficient to comply with First Charleston. Accord Ex Parte Island Packet, supra




1 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

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GREENVILLE NEWS - STATE v. SHEPPARD





(family court's findings that publicity would affect defendant's right to fair trial,

and revelation of confidential information regarding defendant's psychiatric status,

insufficient basis upon which to justify closure of juvenile transfer hearing).





Accordingly, the circuit court's order is

VACATED.





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