Fifth Circuit Holds Press Entitled Access to Sentencing Hearings

Image via WikipediaThe United States Court of Appeals for the Fifth Circuit this week in Oziel Cardenas-Guillen v. Hearst Newspapers LLC (Case No. 10-40221) held that the press and public have a First Amendment right to attend criminal sentencing hearings.

Former Mexican drug cartel head Oziel Cardenas-Guillen was arrested by Mexican police in 2003 and U.S. authorities took custody of him in 2007. Security concerns prompted a change of venue from the U.S. District Court for the Southern District of Texas in Brownsville, near the Mexican border, to federal court in Houston. (See "TUOL" post 12/13/10.)

The defendant pleaded guilty to drug, conspiracy and threat charges in February 2010, and was sentenced to 25 years in prison and forfeiture of $50 million. Citing public safety issues, the prosecution successfully moved to close the sentencing hearing to the press and public, with the presiding judge sealing both the government's petition for closure and his order granting the motion.

The Houston Chronicle, by its owner, Hearst Newspapers, LLC, appealed to the U.S. Court of Appeals for the Fifth Circuit, specifically, the trial court's  post-hearing rulings that the news organization's challenge of the closure of the courtroom during the sentencing hearing and its request to be heard on the issue before the closure were moot and its denial of the newspaper's request for public notice of all future hearings and a chance to be heard if the court decided to exclude the press and public from further hearings.

The appellate court reiterated its support of the collateral order doctrine that permits the news media to intervene, though not parties to a litigation, and seek appellate review when confidentiality or closure orders are involved. The court cited the U.S. Supreme Court decision in Press-Enterprise v. Superior Court, 478 U.S. 1, 8-9 (1986) that articulated the two-pronged test for whether the First Amendment mandated access to a particular criminal proceeding: 1)whether such proceedings historically have been open to the press and public; and 2)whether public access to the proceeding in question plays a significant positive role in the functioning of that proceeding. The standard is often referred to as the "experience & logic test" because of the High Court's reference to the institutional value of an open criminal trial being recognized in both experience and logic.

The 5th Circuit decision stated: "We also conclude that the press and the public, including the Chronicle, have a First Amendment right of access to sentencing proceedings,..[and] the district court deprived the Chronicle of its First Amendment right of access, without due process, in refusing to give the press and  public notice and an opportunity to be heard before sealing the sentencing proceeding."

Although the Supreme Court has yet to weigh in on the issue of press access to sentencing hearings, by its ruling in this case, the 5th Circuit joins the 2d, 4th, 7th and 9th Circuits in recognizing such a right.