Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty.

Justice Marshall,

concurring in the judgment.

I agree with the result reached by the Court but write separately to stress that the constitutional rights of the public and press to access to all aspects of criminal trials are not diminished in cases in which “deeply personal matters” are likely to be elicited in voir dire proceedings. Ante, at 511. Indeed, the policies underlying those rights, see Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 572-573 (1980) (plurality opinion); id., at 593-597 (Brennan, J., concurring in judgment), are most severely jeopardized when courts conceal from the public sensitive information that bears upon the ability of jurors impartially to weigh the evidence presented to them. Cf. Globe Newspaper Co. v. Superior Court, 457 U. S. 596, 606 (1982) (“Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process . . .”). Therefore, prior to issuing a closure order, a trial court should be obliged to show that the order in question constitutes the least restrictive means available for protecting compelling state interests. In those cases where a closure order is imposed, the constitutionally preferable method for reconciling the First Amendment interests of the public and the press with the legitimate privacy interests of jurors and the interests of defendants in fair trials is to redact transcripts in such a way as to preserve the anonymity of jurors while disclosing the substance of their responses. Ante, at 513. Only in the most extraordinary circumstances can the substance of a juror’s response to questioning at voir dire be permanently excluded from the salutary scrutiny of the public and the press.

Also, I feel compelled to note my strong disagreement with the Court’s gratuitous comments concerning the length of voir dire proceedings in this and other cases. The Court’s opinion states:

“We cannot fail to observe that a voir dire process of such length [six weeks], in and of itself, undermines public confidence in the courts and the legal profession. The process is to ensure a fair impartial jury, not a favorable one. Judges, not advocates, must control that process to make sure privileges are not so abused. Properly conducted it is inconceivable that the process could extend over such a period. We note, however, that in response to questions counsel stated that it is not unknown in California courts for jury selection to extend six months.” Ante, at 510, n. 9.

The question whether the voir dire proceedings in this case extended for too long a period is not before this Court. Not surprisingly, therefore, we know few of the facts that would be required to venture a confident ruling on that question. Some of the circumstances of which we are aware, however, cast considerable doubt on the majority’s judgment. Albert Greenwood Brown, Jr., was accused of an interracial sexual attack and murder.¹ Given the history and continuing legacy of racism in our country, that fact alone should suggest that a greater than usual amount of inquiry may have been needed in order to obtain a fair and impartial jury in this case. I find it not at all “inconceivable” that the voir dire process could have legitimately extended over six weeks.

Similarly, in the absence of facts not presently available to the Court, it is wrong to assume, as does the majority opinion, that a voir dire proceeding as elaborate and time-consuming as that which occurred in this case “in and of itself undermines public confidence in the courts and the legal profession.” Ibid. After all, this was a capital case involving an interracial sexual attack that was bound to arouse a heightened emotional response from the affected community. In a situation of this sort, the public’s response to the use of unusually elaborate procedures to protect the rights of the accused might well be, not lessened confidence in the courts, but rather heightened respect for the judiciary’s unshakeable commitment to the ideal of due process even for persons accused of the most serious of crimes.²

Furthermore, in the absence of a claim that the length of voir dire proceedings violates federal law, this Court strays beyond its proper role when it lectures state courts on how best to structure such proceedings. We simply lack the authority to forbid state courts to devote what we might consider an inordinate amount of time to ensuring that a jury is unbiased.

For the foregoing reasons, I agree with the judgment but cannot join the opinion of the Court.

1 The criminal trial around which this suit revolves was one in which “the most serious and emotional of issues were presented — the rape and strangulation killing of a fifteen year old white schoolgirl on her way to school, by a black man twenty-six years of age, with a prior conviction of forcible rape on an adolescent Caucasian girl.” Brief for Joseph Peter Myers (trial counsel for Albert Greenwood Brown, Jr.) as Amicus Curiae 2.

2 It is unlikely that there exists a public consensus regarding the proper contours of voir dire proceedings. Certainly there is a lack of consensus within the legal community. See, e. g., Ham v. South Carolina, 409 U. S. 524 (1973). See also Babcock, Voir Dire: Preserving “Its Wonderful Power,” 27 Stan. L. Rev. 545 (1975) (limiting voir dire examination undercuts the ability of litigants to utilize fully the right to a jury trial and works to the relative disadvantage of poor litigants who lack the resources to use other means to gather information about potential jurors).