The U.S. Court of Appeals in New Orleans (5th Cir.) ruled on Tuesday that the public and press have a presumptive constitutional right to attend the sentencing of a criminal defendant. The opinion, in Hearst Newspapers, LLC, aligns the Fifth Circuit with several other federal appellate courts that have reached a similar conclusion, and further establishes that a sentencing court must provide the public with notice and an opportunity to be heard before closing a sentencing proceeding.
The appeal arose from the Houston Chronicle's objection to a Texas federal district court's secret sentencing of Oziel Cardenas-Guillen last year. In February 2010, the district judge sentenced the defendant in United States v. Cardenas-Guillen to a 25-year prison term and other conditions, including the forfeiture of $50 million, on the basis of a plea agreement entered on drug, conspiracy and threat charges.
The trial court agreed to close the sentencing and to not provide advance notice of the hearing to the public at the request of the government, due to public safety concerns.
The Chronicle nonetheless found out about the hearing and requested an opportunity to be heard on the closure, which the trial court denied. The Chronicle's owner, Hearst, appealed to the Fifth Circuit, which heard arguments in the appeal in December 2010.
The Fifth Circuit's opinion concluded that the trial court erred in failing to give the Chronicle notice and an opportunity to be heard on the closure. Circuit Judge James Dennis, writing for the three-judge panel, explained that the U.S. Supreme Court has recognized that the First Amendment protects the public's right of access to "various aspects of a criminal prosecution," but neither the high court nor the Fifth Circuit had specifically addressed whether this constitutional right extends to sentencing hearings.
The court's opinion answered the question in the affirmative, concluding that experience and logic supported the conclusion that the First Amendment right of access encompasses sentencing.
"[S]entencing proceedings have historically been open to the press and public," Dennis said, referencing a long history of open sentencing, including in high-profile cases. Logic also supports open sentencing because "the recognized benefits of having open trials also apply in the context of sentencing proceedings." Those benefits range from improved fact finding and judicial oversight to increased public confidence in the criminal justice system and a better informed public on issues of public importance. The court noted that a number of other federal appellate courts had reached the same conclusion.
Dennis' opinion also addressed the procedural requirements a trial court must follow when considering closing a sentencing. "Because there is a First Amendment right of access to sentencing proceedings, there is a presumption that they should remain open, absent specific, substantive findings made by the district court that closure is necessary to protect higher values and is narrowly tailored to serve such goals," the court said.
The court's opinion emphasized that, in order to give meaning to this right of access, a court is required to provide the public with notice and an opportunity to be heard on the issue of closure. "The trial court cannot properly weigh the First Amendment right of access against the interests served by closure, nor can it fully consider alternatives to closure, without providing notice and an opportunity to be heard to the press and public," Dennis said.
Turning to the specifics of this case, the court said the trial court erred in not providing advance notice and an opportunity to be heard before closing the sentencing.
The court rejected the trial court's justifications for not following these procedural requirements in this case. Less restrictive alternatives existed to address the security concerns expressed by the court and government, and the Chronicle's earlier general objections to closed proceedings did not constitute a sufficient notice and opportunity to be heard on the specific issue of closing the sentencing, Dennis said.
The Fifth Circuit's opinion does not address the ultimate issue of whether the district court's closure was "substantively correct," instead focusing on the procedural errors underlying the trial court's decision. But by acknowledging that the right of access applies to sentencing — and by specifying the procedural requirements a trial court must undertake to justify a closure — the court's opinion provides a road map for future cases.