THE STATE OF SOUTH CAROLINA
In The Supreme Court
In Re Greenville News, Appellant
The State, Respondent
Joseph Sheppard, Respondent,
Appeal From Greenville County
Costa M. Pleicones, Circuit Court Judge
Opinion No. 24835
Submitted April 22, 1998 - Filed September 14, 1998
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.
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
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
(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