United States v. Edwards

¶1with whom Associate Judge HARRIS joins, concurring in part and dissenting in part:

¶2While I join the Chief Judge’s thorough analysis upholding the constitutionality of pretrial detention, I must dissent from the unoccasioned announcement by the court that the press has a First Amendment right to attend pretrial detention hearings. No court in the land, to my knowledge, has ever so ruled. This singularity, however, troubles me less than the knowledge that this proposal will find its way into history and the law books at the apparent behest of an amicus curiae, perhaps even to its surprise. In addition, we have not adequately considered the major premise of the majority. The opinion of the court relies significantly on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), a case which was reported by the Supreme Court almost five weeks after argument in this case and our post-argument conference.

¶3*1347i

¶4Although this portion of the court’s decision will undoubtedly receive much attention, the chronicles of jurisprudence proclaim that this decision is an advisory one on a moot question rendered without jurisdiction for the hypothetical benefit of a corporation which is not even a party to the case.

¶5The true issue has nothing to do with the First Amendment or The Washington Post. Before the court is the question of whether the government may veto the defendant’s request to close his pretrial detention hearing to the public.1 For reasons that appear below, I believe that even this question is incapable of review.

¶6The elementary requirement of an actual case or controversy for the exercise of federal judicial power is imposed by Article III of the Constitution. This requirement is no less applicable to the District of Columbia court system. District of Columbia v. Walters, D.C.App., 319 A.2d 332, 338 n.13, appeal dismissed, 419 U.S. 1065, 95 S.Ct. 650, 42 L.Ed.2d 661 (1974); United States v. Cummings, D.C.App., 301 A.2d 229, 231 (1973). Furthermore, the party must have suffered some actual injury from the purportedly illegal action. Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). This injury must be attributable to a party against whom relief may be afforded. Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550-551, 7 L.Ed.2d 512 (1962). Without these criteria being met, no one can be relied upon to pursue the question in the adversary system. These criteria “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

¶7These criteria, which have prevailed since the time of President Washington,2 are wholly absent here in regard to the right of the press to attend pretrial detention hearings. The government has appealed the trial court’s closure ruling in a cross appeal to defendant’s constitutional challenge to the pretrial detention statute. While the government may arguably assert its quarrel with the conduct of the trial judge, it has no standing which entitles it to appellate review of a First Amendment issue. Cf. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 242, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). The government may not represent the First Amendment rights which are personal to others. See Massachusetts v. Laird, 400 U.S. 886, 91 S.Ct. 128, 27 L.Ed.2d 130 (1970); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586reh. denied, 346 U.S. 841, 74 S.Ct. 19, 98 L.Ed. 361 (1953); Florida v. Mellon, 273 U.S. 12, 47 S.Ct. 265, 71 L.Ed. 511 (1927); Tyler v. Judges of the Court of Registration, 179 U.S. 405, 407, 21 S.Ct. 206, 207, 45 L.Ed. 252 (1900); cf. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (federal statute grants standing to litigate Fifteenth Amendment rights). On the other side of the “case,” the controversy collapses entirely when we consider the interest of the accused in the appeal. See Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). He has no motive to oppose the government’s appeal of the closure ruling. In support of this observation, I note that neither the government’s counsel nor Edwards’ counsel addressed himself to the closure issue at oral argument. Consequently, the court has issued an advisory *1348opinion, remote from the interests of the parties before it. The necessary adverseness has been fabricated by the majority which seems to have an opinion and looks to this case as a vehicle to express it. We know little more about this First Amendment issue than we would if there were no case at all. See Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972).

¶8Neither can the requisite adversity be supplied by the presence on appeal of The Washington Post as amicus curiae. An amicus curiae is not a party to the action, does not in contemplation of law appear on behalf of anyone, may not control the litigation, Givens v. Goldstein, D.C.Mun.App., 52 A.2d 725 (1947); Klein v. Liss, D.C.Mun.App., 43 A.2d 757 (1945), and is not entitled to oral argument.3 D.C.App.R. 29(b). Consequently, an amicus curiae is not entitled to any relief or ruling from the court in its favor and may not raise issues which are not properly asserted by the principal parties. Givens, supra 52 A.2d at 726. The First Amendment being personal to the amicus and irrelevant to the true issue raised by the government, the court’s attempted ruling is inappropriate and bootless.

¶9The proper manner for The Washington Post to have asserted a First Amendment claim is established in numerous cases, some now notorious. The party seeking access to judicial proceedings must seek to intervene at the critical moment, see Richmond Newspapers, supra; Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978); or seek an extraordinary writ against the trial judge. See Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978); Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis.2d 66, 221 N.W.2d 894 (1974); Gore Newspapers Co. v. Tyson, 313 So.2d 777 (Fla.App.1975), overruled by English v. McCrary, 348 So.2d 293 (Fla.1977); United Press Associations v. Valente, 308 N.Y. 71, 140 N.Y.S.2d 71, 123 N.E.2d 777 (1954); E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955).4

¶10*1349The Supreme Court of the United States has articulated the duty of the trial judge when confronted with a request to close a trial or a pretrial suppression hearing. The question of whether the court’s duty is triggered when a defendant requests closure of pretrial detention proceedings and, if so, whether the trial judge has complied with that duty can only be argued in the context of mandamus or intervention by parties with opposing interests: the individual asserting his First Amendment right, the trial judge defending his exercise of judicial authority, or the defendant exercising his waiver of a public trial.

¶11II

¶12A further problem, unaddressed by the parties or the majority opinion, is our jurisdiction to hear the government appeal. It is clear to me that we are without such jurisdiction. Although both the government and the defendant are authorized to appeal from a detention ruling, D.C. Code 1973, §§ 23-1324(b), -1324(d)(2), no statute authorizes the government to appeal from the trial court’s closure ruling. Without such statutory authority we are unable to treat the issue raised by the government. United States v. DiFrancesco, - U.S. -, -, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980); United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1352, 51 L.Ed.2d 642 (1977); Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); United States v. Jones, D.C.App., 423 A.2d 193 (1980). Cf. United States v. Burka, D.C.App., 289 A.2d 376 (1972) (government brought writ of mandamus to compel trial judge to turn over transcript in a criminal case). Mere consent of the parties to consideration by the court of an issue cannot, by itself, confer jurisdiction on the court. Brown Shoe Co. v. United States, 370 U.S. 294, 305, 82 S.Ct. 1502, 1512, 8 L.Ed.2d 510 (1962).

¶13In addition, the trial court’s action does not fall within the collateral order exception to the final judgment rule.5See DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962). The primary reason that the exception does not apply in this case is that the government is not asserting a right that it enjoys. The Supreme Court has made it clear that defendants have a Sixth Amendment right to a public trial, Gannett, supra,and the public has a First Amendment right to attend a trial. Richmond Newspapers, supra. However, the suggested boundaries of the prosecutor’s role in a closure request do not embrace similar rights. The plurality opinion in Gannett suggests that the public’s interest in an open trial is protected by the litigants, the prosecutor acting as society’s servant to defend both the interest of the public and the due process rights of the accused. Gannett, supra443 U.S. at 383 and 384 n.12, 99 S.Ct. at 2907 and 2908 n.12. Justice Powell suggests that if the prosecutor joins in the closure request, he should “be given the opportunity to show that public access would interfere with (the State's) interests in fair proceedings or pre-*1350serving the confidentiality of sensitive information.” Id.443 U.S. at 401, 99 S.Ct. at 2916 (Powell, J., concurring). The dissenting Justices, however, strenuously object to this characterization of the prosecutor’s role. They “reject any notion that the decision whether to permit closure should be in the hands of the prosecutor on the theory that he is the representative of the public interest.” Id. at 445, 99 S.Ct. at 2939 (Blackmun, J., concurring and dissenting in part).

¶14Furthermore, the defendant’s waiver of his right to a public trial does not harm the government per se. Therefore, let he whose interest in a public trial is seriously jeopardized by closure, appear, intervene, and litigate his rights. This is not the government’s role and, consequently, no such appeal should lie in this case.6

¶15In this case there are serious matters that have passed unexamined prior to the court’s decision. For example, some jurists question the majority’s blithe assumption that “[t]he principles that support a right to access to trials apply with equal force to pretrial proceedings,” Chief Justice Burger among them. In his concurring opinion in Gannett, supra at 396, 99 S.Ct. at 2914, the Chief Justice wrote “no one ever suggested that there was any ‘right’ of the public to be present at such pretrial proceedings as were available” at the founding of our country.

¶16The majority also assumes that a whole litany of functions served by a public proceeding applies to detention hearings. See ante at 1344-1345. I suggest that several are wholly irrelevant and most are debatable. These matters are better left to careful factfinding and judicial scrutiny which the adversary process is designed to provide.

¶17Taken together, the views of the various Justices in Gannett, which I discuss supra at 1349-1350, do not support a prosecuto-rial right to veto a closure order granted at the request of the defendant, even if the trial judge has failed to consider the public interest in an open proceeding and less restrictive alternatives to closure. At best, the prosecutor may insist that the request for closure be consistent with the actual wishes of the accused. But the government may not appeal on behalf of the public when the defendant has waived his right to public trial. Indeed, permitting a government appeal is inconsistent with the prosecutor’s duty to assure the swift and sure administration of justice. The public interest and the prosecutor’s duty are never assertedly symbiotic. See Gannett, supra.If the government should win such an appeal, pendente lite, a subsequent conviction would be subject to direct attack by the defendant on the grounds that he was prejudiced by a denial of his due process rights. See id. at 438-39, 99 S.Ct. at 2935-36 (Blackmun, J., concurring and dissenting in part).

¶18I submit we have no case involving closure; the court has decided an argument weakly put. Part IV, therefore, should be viewed as a nullity.