People v. Zimmerman, 2018 IL 122261 (October). Episode 553 (Duration 10:21)

You Can hide lascivious pretrial motions from the press.

See Also

Episode 336 - People v. Zimmerman,  2017 IL App (4th) 170055 (March).

Murder Case

In July 2015, defendant was charged in McLean County with the first degree murder of his former spouse.

The Motions

Defendant filed a motion for leave to file his fourth and fifth motions in limine under seal and a motion to close the court proceedings on the motions. The motions in limine sought to exclude “sensitive, private, and/or inflammatory information” about defendant, possible witnesses, and other third parties that had been provided to him by the State during discovery.

The underlying discovery evidence sought to be excluded was described in extensive detail in the motions themselves.

Defendant asserted that due to the “high level of media saturation regarding th[e] case” publication of the information would violate his privacy rights and taint the jury pool.

Intervenors Got Involved

Intervenors filed a petition to intervene and objections to defendant’s motion to close the courtroom and to file the two motions under seal. They argued that the right of access under the first amendment and the common law applied to defendant’s motions in limine and any proceedings on those motions and that defendant had failed to allege a sufficient basis to overcome the presumption of access.

The Hearing On The Two Motions

At the hearing, defendant withdrew his request to close the proceedings because the State agreed not to introduce the evidence at issue at trial.

Consequently, the only issue that remained was defendant’s request to continue to seal the motions until a jury was impaneled. At the hearing, the assistant state’s attorney informed the trial court:

“I take no position on whether the court continues to seal these. I will only say that this is a little frustrating because we are not, nor did we, intend on offering these things in our case in chief. During a big case like this, there may be any number of things the State is aware of through an investigation that the press would never become privy of because the State never intends on offering those things as evidence. These things fall into that vein. *** But as to whether the court decides to seal indefinitely or not, we’ll leave that to the court.”

In ruling on defendant’s request to continue to seal the motions, the trial court concluded that intervenors did not have a first amendment right to the motions that sought to exclude material that had not been introduced into evidence but, rather, had been obtained by defendant from the State in discovery.

The trial court said the public’s right of access to court proceedings and records is not absolute, and the court has supervisory authority over its own records and files and may deny access at its discretion.

The trial court ordered that the two motions would remain sealed until after selection of a jury. At that time, the court would revisit intervenors’ motion to unseal and would have a hearing on the same.

Issue

Intervenors filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) and now want us to adopt the reasoning of the appellate court.

First Amendment Right

The United States Supreme Court first recognized a first amendment public right to attend criminal trials in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980). Thereafter, this court specifically found a public right of access to court records embodied in the first amendment to the United States Constitution.

Includes Right To Access

The determination of whether a first amendment right of access attaches to a particular record requires a two-step process under what is typically known as the “experience and logic test.” Press-Enterprise II, 478 U.S. at 9-10 (1986).

First, a court must consider whether the document is one that has historically been open to the press and general public (the “experience” prong). 

Second, a court must consider whether public access to the document plays a significant positive role in the functioning of the particular judicial process in question (the “logic” prong).

If the test of experience and logic is met, a qualified first amendment right of public access attaches to the material.

Plus There's A Third Prong

But even when a first amendment right of public access attaches to a document, it is not absolute. As the Supreme Court explained, although open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity.

In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified first amendment right of access to the proceeding or material. In Press-Enterprise II, the Court held:

“The [first amendment] presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

Press-Enterprise II, 478 U.S. at 9-10 (quoting Press-Enterprise I, 464 U.S. at 510).

Analysis

In this case, the “experience” prong weighs against a first amendment right of access.

Defendant’s motions sought to exclude from trial “sensitive, private, and/or inflammatory information” about him, possible witnesses, and other third parties that had been provided to him by the State during discovery. It is undisputed that the State does not intend to introduce any of the evidence contained in the motions at trial. 

Intervenors fail to acknowledge that there is no tradition of access to discovery material not yet admitted at trial.

Unrelated or Tangentially Related Information

Information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action.

The Court instructed that “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” Whether in a civil or criminal case, discovery is “essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist in trial preparation.”

Generally, the documents themselves contain no evidentiary value until admitted into evidence at trial or other proceedings. Public access to such material would therefore not play a significant role in the administration of justice in the case.

First Step Holding

The State and defendant are correct that because the material at issue in the two motions was disclosed during the discovery process, is not otherwise publicly available, is wholly tangential to the criminal case, and will not be admitted at trial, it is not subject to a tradition of access.

Second Step Holding

Similarly, we find the “logic” prong weighs against a presumption of first amendment access in this case. Intervenors do not provide any authority to support a finding that public access to the type of pretrial discovery at issue here would play a significant positive role in the judicial process. The discovery process often generates a significant amount of irrelevant and unreliable material that plays no role in the criminal proceeding and in which the public has limited interest.

Not Everything Becomes Public Record Nor Should It

As the State informed the trial court in this case, there may be any number of matters of which the State becomes aware in the course of an investigation that are shared with a defendant through discovery. Such material, however, generally does not become public because there is no intention of offering it into evidence.

In fact, had it not been for defendant’s fourth and fifth motions in limine, there would be no material on file for intervenors to seek access to, as the State has no intention of introducing it.

Third Prong Analysis

Additionally, disclosure of the discovery evidence in this case could potentially play a negative role by exposing the public and potential jurors to irrelevant information that will not be used to support a conviction and could taint the jury pool.

“If it were otherwise and discovery information and discovery orders were readily available to the public and the press, the consequences to the smooth functioning of the discovery process would be severe.” United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986).

Common-Law Right of Access Does Not Mean Anything Filed Is Accessible

Under the common law there is a presumption that allows the public to inspect and copy public records and documents, including all documents filed with the court. The availability of court files for public scrutiny is also essential to the public’s right to “monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.” In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984)).

“When courts are open, their work is observed and understood, and understanding leads to respect.” In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074 (1992).

The common-law right of access symbolizes the recognition “that the public interest is best served by increasing the public’s knowledge about what is transpiring inside the judicial process.” Skolnick, 191 Ill. 2d at 230 (quoting Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 748 (1980)).

It's In The Code

In Illinois, the legislature has also codified this common-law right of access to judicial records in section 16 of the Clerks of Courts Act, which provides, in pertinent part:

“All records, dockets and books required by law to be kept by [circuit court] clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks’ offices and shall have the right to take memoranda and abstracts thereto.”

705 ILCS 105/16(6) (West 2016).

This court has held, however, that the common-law right of access to judicial records is not absolute.

Not Absolute

Consequently, “whether court records in a particular case are opened to public scrutiny rests with the trial court’s discretion, which must take into consideration all facts and circumstances unique to that case.” For purposes of review, the trial court must provide findings on the record specific enough for a reviewing court to consider whether closure of the records was proper.

No Common Law Problem

The trial court in this case did not abuse its discretion by allowing defendant’s two motions in limine to remain sealed until after a jury is empaneled. In denying intervenors’ request to immediately access the documents, the trial court specifically recognized the common-law right of public access to all documents filed with the court. The trial court also recognized that this right is not absolute, that the evidence at issue in the two motions was not publicly available, and that the court possesses supervisory authority over its own records and files and may deny access at its discretion.

The trial court was familiar with the history of the case and the serious charges against defendant, as well as the publicity that this case has already received and will likely continue to receive in the future. The trial court was also aware that the State does not intend to introduce into evidence any of the tangential matters referred to in the motions in limine, which the court granted without objection.

Holding

A thorough review of the hearing on intervenors’ request to unseal the motions reveals that the trial court attempted to strike a careful balance among competing interests. The trial court recognized the common-law right of access to court records, as well as defendant’s right to a fair trial, which might be undermined by publicity of discovery material that will not be admitted at trial.

The court’s order was also of a limited duration. After a jury is seated in this case, the trial court has agreed to revisit the issue to determine whether it would be proper to allow public access to the motions at that time.

The judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.