Knoxville News Sentinel v. Huskey ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
OCTOBER SESSION, 1997 FILED
February 24, 1998
THE KNOXVILLE NEWS- ) C.C.A. NO. 03C01-9708-CR-00331
SENTINEL, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) KNOX COUNTY
VS. )
) HON. RICHARD R. BAUMGARTNER
THOMAS DEE HUSKEY, ) JUDGE
)
Appe llant. ) (Tenn. R ule App. P. 9 Ap peal -
) Motion to Unseal Record)
In Re: )
)
STATE OF TENNESSEE )
)
Appellee, )
)
v. )
)
THOMAS DEE HUSKEY, )
)
Appellant. )
FOR THE APPELLANT : FOR THE APPELLEE:
HERBERT S. MONCIER RICHARD L. HOLLOW
Suite 775 Nationsbank Center NATHAN D. ROW ELL
550 Main Street Watson, Hollow & Reeves, PLC
Knoxville, TN 37902 1700 First Tennessee Plaza
Knoxville, TN 37901-0131
GREGORY P. ISAACS
Suite 280 O ne Centre Square JOHN KNOX WALKUP
Knoxville, TN 37901 Attorney General and Reporter
JOH N H. B AKE R, III
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
In this interlocutory appeal taken pursuant to Tennessee Rule of Appellate
Procedure 9, the Appellant, Thomas Dee Huskey, asks this Court to reverse the
decision of the Knox County Criminal Court allowing Intervenor-Appellee, the
Knoxville News-Sentinel, (hereinafter KNS), to inspect previously sealed summary
cover sheets of attorney fee and expense claims which set forth the total fees and
expenses paid to defense counsel out of public funds dedicated for use in
representing indigent criminal defendants. The trial court also ordered unsealed
those documents reflecting the total amounts paid out for the services of expert
witnesses in the defense of the case. Detailed attorneys fee and expense claims,
motions and orders dealing with authorization of expert services, and detailed time
sheets of undisclosed defense experts were left sealed and unavailable for public or
press inspection.
The Appellant claims the trial court’s order is illegal, unconstitutional, and
prejudices his right to a fair trial. The Appellee argues that the well-recognized and
constitutionally prescribed public nature of judicial proceedings in this state
mandates that the public and press be allowed to examine the documents which
were unsealed by the trial court.
After a careful review of the record and the extensive briefs filed in this matter
we are of the opinion that the judgment of the trial court must be affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Appellant, Thomas Dee Huskey, was charged in 1992 with the
commission of thirty-two separate offenses involving ten victims. Four of the alleged
offenses are charged as capital murder. The case has generated a great deal of
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publicity in Knox County and the surrounding area. The trial of the capital cases is
currently stayed due to the pendency in the Tennessee Supreme Court of a
separate interlocutory appeal dealing with a court-ordered mental evaluation of Mr.
Huskey.
Mr. Huskey is indigent and two attorneys were appointed to represent him.
Over time these attorneys have submitted to the trial court various requests for
attorneys fees and expenses, including money for the payment of expert witnesses
assisting in Mr. Huskey’s defense. These documents were ordered held under seal.
On June 2, 1997, KNS filed a motion to intervene in the case and asked the trial
court to unseal documents pertaining to any application for, support of, or payment
of fees or expenses in connection with the defense of the case. On June 6, 1997,
the trial court granted KNS permission to intervene, and on July 11, 1997, a hearing
was conducted on the petition of KNS for access to the documents in question.
On July 16, 1997, the trial court entered an order partially granting the
newspaper’s motion. The court ordered:
(1) That detailed time sheets and detailed expense sheets
submitted by defense counsel in this matter, shall remain sealed until
the cases are concluded, but the summary cover sheets setting forth
the total amount paid to defense counsel shall be unsealed.
(2) That motions requesting expert services and the orders
authorizing those services shall remain sealed until the conclusion of
these cases.
(3) That the detailed time sheets of the authorized experts in this
case shall remain sealed, but the total amount paid to experts or for
expert services shall be unsealed. If a particular expert has offered
evidence in the case and is known to the public through on the record
proceedings then the total amount paid to those individual experts will
be disclosed. All other experts or expert services not heretofore of
record shall remain unidentified until the cases are concluded, but the
total amount paid for those services shall be released as a lump sum.
The trial court further ordered that the documents ordered unsealed be forwarded to
this Court, and we now have them before us.
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On August 14, 1997, Mr. Huskey’s attorneys filed an application for an
interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. The
application was granted by the trial court on the same day. On September 3, 1997,
this Court granted the application and the matter is now before this Court.
II. TRIAL COURT JURISDICTION
Appellant’s first complaint regards the jurisdiction of the trial court to grant the
relief requested by KNS. Appellant maintains that this is not an appropriate action
under the Tennessee Public Records Act, Tennessee Code Annotated Section 10-
7-501, et seq., and no other provision of the law allows the criminal court to grant
KNS the right to inspect these documents.
Tennessee Code Annotated Section 10-7-503(a) declares:
All state, county and municipal records and all records
maintained by the Tennessee performing arts center
management corporation, except any public documents
authorized to be destroyed by the county public records
commission in accordance with § 10-7-404, shall at all
times, during business hours, be open for personal
inspection by any citizen of Tennessee, and those in
charge of such records shall not refuse such right of
inspection to any citizen, unless otherwise provided by
state law.
Tennessee Code Annotated Section 10-7-504 contains a number of exceptions to
the generally public nature of governmental records, however, none of those
exceptions are pertinent here. In addition the Tennessee Supreme Court has
recognized other exceptions to the right to inspect public records.
In Appman v. Worthington, 746 S.W.2d 165 (Tenn. 1987); the Tennessee
Supreme Court held that documents in an active criminal case which would not be
subject to discovery and inspection under Tennessee Rule of Criminal Procedure 16
are not subject to inspection under the Public Records Act. The Court reasoned
that Rule 16's protection of certain material from discovery constituted an exception
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to Public Records Act inspection in an active criminal prosecution. In the case sub
judice, Mr. Huskey alleges that Tennessee Rule of Criminal Procedure 16(b)(2)
exempts the documents in question from inspection under the Public Records Act
and thus the trial court should not permit inspection of the documents by the media.
We disagree.
Rule 16(b)(2) provides:
Information not Subject to Disclosure. -- Except as to
scientific or medical reports, this subdivision does not
authorize the discovery or inspection of reports,
memoranda, or other internal defense documents made
by the defendant, or the defendant’s attorneys or agents
in connection with the investigation or defense of the
case, or of statements made by the defendant, or by
state or defense witnesses, or by prospective state or
defense witnesses, to the defendant, the defendant’s
agents or attorneys.
It is obvious that this rule is designed to maintain confidentiality with respect
to materials connected to the substantative defense of a criminal prosecution. While
many of the documents left sealed by the trial court may fit into this category since
they might reveal defense confidences such as the names of potential experts and
the subjects of their research, it is apparent that the cover sheets which merely
reflect totals paid to attorneys and experts do not reveal any defense confidences.
Such materials do not fall within the purview of Rule 16(b)(2).
Secondly, and perhaps more importantly, the only reason the materials in
question were confidential in the first place is because the trial court ordered the
materials sealed.1 Documents sealed by a court of this state are not subject to
inspection under the Tennessee Public Records Act. Ballard v. Herzke, 924 S.W.2d
652, 662 (Tenn. 1996). However, because of the general public right of access to
courts and their records, it is appropriate to allow media entities to intervene in court
1
Cou rts ha ve inh eren t pow er to s eal th eir rec ords whe n priv acy int eres ts ou tweig h the public ’s
right to kno w. In re Knoxville News-Sentinel Co., Inc. 723 F.2d 470 (6th Cir. 1983).
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proceedings wherein the intervenors seek modification of a court order sealing
judicial records from public inspection. Id.2
Ballard is but the last in a line of Tennessee cases recognizing the public’s
right to intervene and examine judicial proceedings when the public’s right to know
can be balanced against the right of litigants to a fair adjudication of the
substantative civil or criminal proceeding. See, e.g., State v. James, 902 S.W.2d
911 (Tenn. 1995); State v. Drake, 701 S.W.2d 604 (Tenn. 1985).
Taken together we believe this line of cases firmly establishes the right of the
public, including the media, to intervene in court proceedings for the purpose of
attending the proceedings, or for the purpose of petitioning the Court to unseal
documents and allow public inspection of them. W e believe the trial court properly
allowed KNS to intervene in this case.
III. RIGHT OF PUBLIC ACCESS TO COURT PROCEEDINGS AND DOCUMENTS
As noted earlier, the Tennessee Supreme Court has recognized a qualified
right of the public, founded in common law and the First Amendment to the United
States Constitution, to attend judicial proceedings and to examine the documents
generated in those proceedings. 3 Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.
2
Ballard involved media intervention in a civil case wherein the intervenors sought modification of
a protective order which had sealed discovery documents in a highly publicized dispute concerning the
financial operation of a retirement community in Memphis, Tennessee. We believe however that the
reasoning of Ballard applies with equal force to the instant case.
3
Article I, Sec . 19 of the C onstitution o f Tenn essee presum ably extend s a sim ilar qualified righ t to
the public. That section provides:
That the printing presses shall be free to every person to examine the proceedings of the
Legislature; or of any branch or officer of the government, and no law shall ever be made
to restrain the right thereof. The free communication of thoughts and opinion, is one of
the invaluable rights of man, and every citizen may freely speak, write, and print on any
subject, being responsible for the abuse of that liberty. But in prosecution for the
pub licatio n of p ape rs inv estig ating the o fficia l cond uct o f offic ers, o r me n in pu blic
capacity, the truth thereof may be given in evidence; and in all indictments for libel, the
jury shall hav e a right to de termin e the law a nd the fa cts, und er the direc tion of the c ourt,
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1996). However, this right of access is not absolute and it must be balanced against
other interests such as a criminal defendant’s right to a fair trial. State v. Drake, 701
S.W.2d 604, 607 (Tenn. 1985). This balance must be carefully struck, and any
restriction on public access must be narrowly tailored to accommodate the
competing interest without unduly impeding the flow of information. Id.In the context of a request by a media entity to examine sealed fee and
expense documents relating to public monies expended in the defense of indigent
criminal defendants, the balancing of competing interests discussed supra., is best
illustrated by a federal case that is remarkably similar to the case at bar. In United
States v. Suarez, 880 F.2d 626 (2nd Cir. 1989); a Connecticut newspaper was
allowed to intervene in a federal armed robbery prosecution involving the theft of
$7.6 million from a Wells Fargo depot in West Hartford, Connecticut. The
newspaper petitioned the district court to allow inspection of, inter alia, sealed
summary cover sheets on fee and expense documents which reflected interim
amounts expended out of public funds for expert services and attorneys fees
connected to the defense of the indigent defendants. The district court granted the
newspaper access to these cover sheets. These cover sheets reflected total
amounts expended out of public monies, but did not contain detailed information
about particular subjects of expert inquiry, nor did the cover sheets disclose
information which might reveal defense strategy beyond that already known to the
prosecution.4 The United States Court of Appeals for the Second Circuit held that
the newspaper was entitled to the limited access granted by the district court, since
as in other criminal cases.
See als o, H&L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444 (Tenn. 1979) (holding both the
First Am end me nt to th e Un ited S tates Con stitutio n and Art. I, § 19 ar e not abso lutes and t hat n arro wly
tailored res trictions on free spe ech m ay be utilized to se rve imp ortant go vernm ental interes ts.)
4
Facsimile of blank cover sheets such as those for which public inspection was granted appear as
Appendices A and B at 880 F.2d 634-635.
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public inspection of the cover sheets would not prejudice the defendant’s rights to a
fair trial. Id. at 629.
In reaching its decision, the court in Suarez rejected the very same
arguments posited by Mr. Huskey in the instant case. The court found that the
“barebones data” contained in the cover sheets would not reveal defense strategies
so as to prejudice the defendant’s rights to a fair trial. Id. at 631. The court
concluded that examination of the documents did not compromise the defendant’s
rights to attorney-client privilege, work product protection, or the effective assistance
of counsel. Id.
Finally, the Suarez court noted that the defendants argued that their right to
the equal protection of the law was being violated by the limited access to
documents afforded the press. The defendants contended, as does Mr. Huskey,
that were they not indigent they would not be required to disclose such fee and
expense information as that contained in the cover sheets. The court found
however, that while the public has no protected interest in knowing how privately
retained attorneys and experts are compensated, it has a strong interest in knowing
how public monies are expended. This difference justifies the disparity in treatment,
however unfortunate, between indigent and non-indigent criminal defendants. Id. at
632.
We are persuaded that the Suarez decision reflects a well-reasoned
approach to the issues presented by the Appellant, Mr. Huskey. The documents
which were unsealed by the trial court contain only total amounts authorized and
expended in the defense of this case. Documents which might reveal defense
strategies or the identities of previously undisclosed experts remain sealed under
the trial court’s order of limited public access. We are unable to discern how
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revelation of the “barebones” information ordered unsealed will prejudice Mr.
Huskey’s right to a fair trial. We also reject for reasons stated in Suarez and
discussed supra., that revelation of these documents will compromise work product
protections, attorney-client privilege, deprive Mr. Huskey of the effective assistance
of counsel, or violate Mr. Huskey’s right to the equal protection of the law.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, JUDGE
___________________________________
DAVID H. WELLES, JUDGE
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