No.

CR07-0241859

STATE OF CONNECTICUT

) ) )

NEW HA VEN JUDICIAL DISTRICT

SUPERIOR COURT

v.

STEVEN HAYES

JUNE 30, 2010

CONSOLIDATED MEMORANDUM OF DECISION

RE MOTION REQUESTING SEALING OF CERTAIN PLEADINGS

FILED BY THE DEFENDANT

& MOTION REQUESTING CLOSURE OF COURTROOM

I. INTRODUCTION.

The defendant, Steven Hayes, stands accused of three murders arising out of an alleged

2007 home invasion in Cheshire. The State is seeking the death penalty. The case has been a

cause celebre, and the trial, scheduled to begin on September 13, 2010, will be a matter of

considerable public interest. Notwithstanding the notoriety of the case, an impartial jury has been

selected, and each selected juror has specifically been instructed to avoid all publicity concerning

the case until such time as the verdict has been delivered.

On June 23,2010, the defendant filed a pretrial motion to suppress ("motion to

suppress") certain verbal statements that he allegedly made following his apprehension on July

23,2007. On the same date, he filed a separate motion in limine ("motion in limine") contesting

the admissibility of a certain library book.

Also on June 23, 2010, accompanying the motions just described, the defendant filed two

additional motions now before the court: (1) a Motion Requesting Sealing of Certain Pleadings

Filed by the Defendant ("Sealing Motion"), and (2) a Motion Requesting Closure of Courtroom Judicial District of New Haver,

SUPERIOR COURT FILED

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JUN 30 2010

~HIEF CLERK'S OFF"

("Closure Motion"). The Sealing Motion seeks to seal the motion to suppress and the motion in

limine. The Closure Motion seeks to close the courtroom during the hearing on the motion to

suppress and the motion in limine.

On June 23,2010, immediately after the filing of the Sealing Motion and the Closure

Motion, pursuant to P.B. §§ 42-49(e) & 42-49A(e), the Court calendered a hearing on these

motions to be held on June 29,2010. On June 24,2010, the New Haven Register published a

story concerning these motions on its front page. Under these circumstances, ample notice has

been given to all interested parties.

The Hartford Courant Company ("Courant") has intervened and opposed the Sealing

Motion and the Closure Motion.

The Sealing Motion and the Closure Motion were heard on June 29,2010. The State

takes no position on the motions in question. The issues have been joined by the defendant and

the Courant.

The defendant informed the court at the hearing that, based upon certain representations

by the State, he would not claim the motion in limine. He requested that, pursuant to P. B. § 7-

4B(d)(I), the Clerk return the lodged motion in limine to him and not place it in the court file.

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Neither the State nor the Courant opposed this request.

The evidentiary hearing addressed by the Closure Motion is presently scheduled to

commence on July 14, 2010,

IT. DISClTSSION.

Under the Practice Book; there is "a presumption that documents filed with the court shall

be available to the public." P. B. § 42-49A(a). There is a corresponding "presumption that

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courtroom proceedings shall be open to the public." P.B. § 42~49(a). These presumptions maybe

overcome "only if the judicial authority concludes that such order is necessary to preserve an

interest which is determined to override the public's interest" in "viewing such materials" and

"attending such proceeding." P.B. §§ 42N49(c) & 42N49A(c).

The Practice Book rules just cited are rooted in fundamental constitutional principles. The

First Amendment protects the freedom of the press, and the Sixth Amendment protects the right

of public trial. Public trials ensure that judges and prosecutors "carry out their duties

responsibly," encourage "witnesses to come forward," and discourage perjury. Waller v. Georgia,

467 U.S. 39,46 (1984). "These aims and interests are no less pressing in a hearing to suppress

wrongfully seized evidence." Id.1 Hence, the party seeking sealing or closure "must advance an

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overriding interest that is likely to be prejudiced." Id., at 48.

The "overriding interest" asserted in the motions now before the Court is the defendant's

constitutional "right to a fair trial by an impartial jury." The existence of this right is, of course,

fundamental to the rule oflaw. There has, however, been no showing that the sealing and closure

sought here are necessary to protect the right in question. As mentioned, an impartial jury has

1 Two somewhat dated Connecticut authorities cited by the defendant - State v. Couture, 37 Conn. Supp. 705, 707, 435 A.2d 369 (App. Sess. Super. Ct. 1981) & State v. Burak, 37 Conn. Supp, 627, 630,431 A.2d 1246 (App. Sess. Super. ct. 1981) - expressly proceed on the assumption that a lesser level of scrutiny applies to the review of pretrial courtroom closures. After Waller, this distinction is no longer viable. In addition, it appears that the proposed courtroom closures at issue in the Connecticut authorities just cited were pre-voir-dire closures, designed to avoid contamination of the jury pooL The same is true of a Mississippi precedent relied upon by the defendant. Mississippi Publishers Corp. v. Coleman, 515 So.2d 1163, 1164 (Miss. 1987). As discussed in the text, the post-voir-dire posture of the motions at issue in the present case is quite different. For the same reason, the pre-voir-dire decision of Damiani, J. to redact certain portions of the search warrant application in the present case addressed issues quite different from those now before the Court.

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been selected. Each selected juror has specifically been instructed to avoid all publicity

concerning the case until the verdict of the jury has been delivered. Each selected juror has been

selected following an exhaustive individual voir dire. Each selected juror is an intelligent and

emotionally mature individual who fully understands the obligations of the juror's oath to decide

the case based on the evidence presented in court.

The Sealing Motion can be dealt with swiftly. The only document that the defendant now

seeks to seal is the motion to suppress. The motion to suppress does not set forth the content of

the statements sought to be suppressed. The Court has carefully examined this document and sees

nothing in it that would imperil the defendant's right to a fair trial by an impartial jury. The

defendant essentially conceded this point at argument.

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The Closure Motion merits a more detailed discussion. Given the constitutional command

of public trial, sealing the courtroom is obviously a drastic remedy. The defendant essentially

conceded at argument that there is no overriding interest in sealing the courtroom during

testimony describing the circumstances under which the defendant's statements were given. His

concern is that the public not hear (at least at this time) the contents of his statements. But his

real concern at this stage is not the public at large. His concern is what he sees as the likely effect

of what he predicts will be resulting publicity on the selected jurors.

The Closure Motion itself (we'll get to the defendant's argument at the hearing in a

moment) is impliedly premised on the assumption that these very selected jurors will disregard

the specific instructions they have been given. The granting of the Closure Motion on this basis,

restricting the fundamental right of public access to our courts, would turn the rule oflaw on its

head.

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The Supreme Court has recently explained that:

The jury system is premised on the idea that rationality and careful regard for the' court's instructions will confine and exclude jurors' raw emotions. Jurors routinely serve as impartial factfinders in cases that involve sensitive, even lifeand-death matters. In those cases, as in all cases, juries are presumed to follow the court's instructions.

CSXTransportation, Inc. v. Hensley, 129 S.Ct. 2139; 2141 (2009). See United States v.

McDonough, 56 F.3d 381, 387 (1995); State v. Carpenter, 275 Conn. 785, 828, 882 A.2d 604

(2005), cert. denied, 547 U.S. 1025 (2006). The Court reiterated this premise just last week in a

. widely-publicized criminal case involving the collapse of Enron Corporation. Skilling v. United

States, No. 08-1394 (U .S. June 24, 2010). Skilling reminds us that:

Our decisions have rightly set a high bar for allegations of juror prejudice due to pretrial publicity .... News coverage of civil and criminal trials of public interest conveys to society at large how our justice system operates. And it is a premise of that system that jurors will set aside their preconceptions when they enter the courtroom and decide cases based on the evidence presented.

ld. at 34 n. 35.·

The defendant clarified his argument at the hearing by explaining that his specific

concern is not that the selected jurors will consciously disregard their oaths but that, no matter

how conscientious they may be, they will inevitably be confronted by inflammatory newspaper

headlines displayed in public places. There is undoubtedly some risk that accidental exposure of

this nature will occur. Juries. are rarely sequestered in modem times, and our system accepts the

fact that jurors do not reside in hermetically sealed environments. But the selected jurors in this

. case understand their instructions to avoid publicity and their ultimate sworn duty to decide the

case based only on the evidence presented in court.

While the defendant's concerns are understandable, it is helpful to remember that, "The

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rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the

absolute certitude that the presumption is true than in the belief that it represents a practical

accommodation of the interests ... [involved] in the criminal justice process." Richardson v.

Marsh, 481 U.S. 200, 211 (1987). The Court has chosen to accommodate the interests involved

here by scheduling the suppression hearing to occur after the jury has been selected and

appropriately cautioned. Skilling reminds us that, "[jjurors ... need not enter the box with empty

heads in order to determine the facts impartially. It is sufficient if the juror[s] can lay aside [their]

. impression[s] or opinion[s] and render a verdict based on the evidence presented in court."

Skilling v. United States, supra, slip op., at 34. (Internal quotation marks and citation omitted.)

The defendant has submitted no evidence even suggesting that the carefully-selected and

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thoroughly-instructed jury in this case will he unfaithful to its instructions or its oath. Under

these circumstances, the constitutional right of openness has not been overcome.

The Sealing Motion and the Closure Motion are denied.

Pursuant to P.B. § 7-4B(d)(1), the Clerk is instructed to return the lodged motion in

limine to the defendant and not place it in the court file

Jon C. lue

Judge of the Superior Court

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