Memphis Publishing Co. v. Burnett

Per Curiam. Petitioner Memphis Publishing Company petitions this court to issue a writ of mandamus to Circuit Judge C. David Burnett to conduct voir dire of prospective jurors and all other proceedings in open court. The allegation is made that voir dire has been closed to the public. Counsel for the parties argued the matter before this court on this date. At oral argument this court was advised that voir dire was now completed. Memphis Publishing stated that it desired a release of the court reporter’s voir dire tapes or, alternatively, a transcription of the tapes. No request for the tapes or transcriptions was made in Memphis Publishing’s petition. We have previously decided that a member of the news media, though not a party to the litigation, has standing to question an exclusion from voir dire. Commercial Printing Co. & Tosca v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977). We have also determined that we have jurisdiction to decide the issue, though voir dire is concluded, because the issue may well occur again and yet entirely evade review. Id. The question of an open voir dire has been resolved by this court. Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984); Commercial Printing Co. & Tosca v. Lee, supra. We have premised our decisions on the guarantee of a public trial in the state and federal constitutions and in our statutory law. U.S. Const, amend. 6; Ark. Const, art. 2, § 10; Ark. Code Ann. § 16-10-105 (1987). In Lee, we discussed what occurs at voir dire and why it should be an open process: Normally, lawyers ask prospective jurors if they know anything about the facts of the case — if they have talked with any person concerning the facts who purports to be a witness — if they are represented by one of the attorneys involved — their feelings about the possible punishment that might be imposed — or if there is any reason why they could not give both the state and the defendant a fair and impartial trial. Certainly members of the public, probably including members of a victim’s family, have the right to hear the voir dire examination of individual jurors. This may well have a salutary effect. Cases have been reversed in this court because of answers given by prospective jurors on voir dire which subsequent investigation established were false, or at least incorrect, and which might have well disqualified the prospective juror. As stated previously, we have only one question before us, viz, was the court’s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic “No!” 262 Ark. at 93-95, 553 S.W.2d at 273-274. The State cites Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983), to bolster its position that this is a matter of discretion in the trial court. We disagree that Tedder applies. That case concerned a pretrial suppression hearing, not jury selection which we have emphasized to be a stage of the proceedings where openness is particularly appropriate for the reasons already stated. Commercial Printing Co. v. Lee, supra. The trial court was in error in excluding the public and Memphis Publishing from voir dire in this trial. We do not hold that it was error to conduct voir dire out of the presence of other members of the venire. Error declared. Holt, C.J., dissents. Corbin, J., not participating.