HIGHLIGHTS:

• In a first of its kind ruling in Florida, a Florida Appellate Court has issued a 27-page opinion unanimously vacating two orders of a trial court in Jacksonville, Fla., which had excluded the media from critical portions of the jury selection process in a high profile criminal trial.
• The Court's opinion is a strong statement regarding the rights of the media to be physically present inside the courtroom during all substantive phases of a criminal proceeding. The opinion will serve as needed guidance for the trial courts in Florida in the proper handling of access issues in criminal cases that garner a significant amount of public attention.

A Florida Appellate Court – in a first of its kind ruling in Florida – has issued a 27-page opinion unanimously vacating two orders of a trial court in Jacksonville, Fla., which had excluded the media from critical portions of the jury selection process in a high profile criminal trial. The trial court had physically excluded the media from the courtroom during voir dire proceedings, and instead had set up an "overflow" courtroom with an audio feed for media members. The trial court later cut off the audio feed while the prosecution and defense attorneys exercised peremptory strikes and challenges for cause until the jury had been selected. In its opinion issued April 25, 2014, the Florida First District Court of Appeal ruled that these actions violated the right of the press under the First Amendment to be present in the courtroom and to observe the process of jury selection, as well as Florida common law which provides a right of access to court proceedings independent of the First Amendment.

The defendant, Michael Dunn, was being prosecuted for one count of murder in the first degree, and three counts of attempted murder in the first degree. Dunn, a white male, had fired shots with a handgun into a vehicle occupied by four black teenagers, killing one of them, over a dispute regarding loud rap music. The case generated substantial public interest, not only because of the seeming similarity with the facts of the George Zimmerman/Trayvon Martin case, but also because the same prosecutor from that case, Angela Corey, would be handling the Dunn trial.

Anticipating significant media interest, and a need for a larger than normal pool of potential jurors, the trial court decided to establish an "overflow" courtroom equipped with an audio feed for the media's use during the trial proceedings. The Florida Times-Union and First Coast News objected to this plan and asserted a First Amendment right, as well as a right under Florida common law, to be present in the courtroom during jury selection.

The Court determined that an "overflow" courtroom with an audio feed is not sufficient.

The trial court states in its order that there has been "no closure nor any prohibition of media access during jury selection; rather the audio feed serves as the media and public’s access to the proceedings." We disagree. By limiting their observation of the proceedings to audio, Petitioners were deprived of the ability to see the judge, prospective jurors, and attorneys to evaluate their demeanor, body language, and other non-verbal expressions.

Opinion at pp. 16-17.

The Court then addressed the trial court's decision to leave the audio feed to the overflow courtroom turned off during when the parties were exercising juror strikes. The state had asserted that the closed-door proceeding to exercise strikes and finalize the jury selection was merely a "bench conference" to which no right of access attaches. The Court rejected the state's position and ruled that the label attached to the specific proceeding is not determinative, but rather "[a] functional analysis is necessary to determine whether the closed proceeding is part of the trial process to which the First Amendment right of access attaches." Applying that functional analysis, the Court ruled that the so-called "bench conference" was "in fact, a substantive part of the trial" and the First Amendment right of the press to be present attached.

The Court's opinion is a strong statement regarding the rights of the media to be physically present inside the courtroom during all substantive phases of a criminal proceeding. It comprehensively addresses a right fundamental to the newsgathering process – the ability to not just hear the proceedings, but to observe body language such as facial expressions, smiles, frowns, the rolling of eyes, crossed arms, scowls and knowing glances. By adopting the functional analysis for determining whether the right of access attaches to the particular proceedings, the Court foreclosed the ability of the trial judge and participants to attempt to circumvent the right to be present by declaring that action may be taken "in chambers" or in a "bench conference." The opinion will serve as needed guidance for the trial courts in Florida in the proper handling of access issues in criminal cases that garner a significant amount of public attention.

Holland & Knight represented Morris Publishing Group LLC, d/b/a The Florida Times-Union and Multimedia Holdings Corporation, and Gannett River States Publishing Corporation, d/b/a WTLV/WJXX First Coast News. These companies were media petitioners in the case and were represented by attorneys George D. Gabel Jr., Timothy J. Conner, Jennifer A. Mansfield and Paul R. Regensdorf in the firm's Jacksonville office.