No. 101 E.D. Misc. Dkt. 1983, ORIGINAL PROCESS
Ralph E. Kates, III, Harry V. Cardoni, Wilkes-Barre, Lawrence M. Ludwig, Scranton, for applicant.
Howland W. Abramson, Philadelphia, Administrative Office of Pa. Courts Phila. Co.; Patrick J. Toole, Jr., Robert J. Gillespie, Jr., Basil G. Russin, Wilkes-Barre, for respondent.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
This opinion is filed in response to an order of the United States Supreme Court vacating an order of this Court and remanding for clarification of the record. The question to be addressed is the basis of our denial of an application for writ of prohibition, filed on behalf of a newspaper and a television station involved in the coverage of a criminal trial, challenging the constitutionality of certain restrictive orders issued by the trial court.
This controversy arose shortly before the commencement of trial in the case of Commonwealth v. George E. Banks in the Luzerne County, Pennsylvania, Court of Common Pleas.*fn1 The defendant in that matter was charged with thirteen (13) counts of criminal homicide. After the defendant's motion for a change of venire had been granted and a jury empanelled in Allegheny County, Pennsylvania, 42 Pa.C.S. § 8702; Pa.R.Crim.P. 312(d), the trial judge, the Honorable Patrick J. Toole, Jr., respondent herein, issued two pretrial restrictive orders. The first provided, inter alia, that no one would be permitted to talk to, record, photograph, televise or videotape the jurors during their service in the case, that all witnesses and jurors were prohibited from giving public interviews or making extra-judicial statements about the case until the jury was discharged, and that only counsel, court personnel, witnesses and jurors would be permitted to handle the exhibits except by order of the court.
The second order provided for the sequestration of the jury beginning June 5, 1983, the day before trial, to continue until the jury was discharged. Among the other conditions prescribed in aid of the sequestration order were the provisions that "[n]o person shall print or announce in any way the names or addresses of any juror" and that "[n]o
person shall draw sketches, photographs [sic], televise or videotape any juror or jurors during their service in these proceedings . . . ."
Trial commenced on June 6, 1983. On June 13, 1983, applicants Capital Cities Media, Inc. and NEP Communications, Inc. filed in this Court an "Application for Leave to File Original Process Pursuant to Pa.R.A.P. Rule 3307 and Application for Extraordinary Relief Pursuant to Pa.R.A.P. 3309." In their pleading the applicants sought to challenge the above-described provisions of Judge Toole's pretrial orders as violative of their First Amendment and State Constitutional rights, and requested a writ of prohibition barring enforcement of those portions of the orders. On June 21, 1983, defendant Banks was convicted of twelve (12) counts of first degree murder, one count of third degree murder and a number of other offenses. The jury returned a sentencing verdict of death on all twelve (12) first degree murder convictions on June 22, 1983.*fn2
This Court entered a per curiam order denying a writ of prohibition on June 30, 1983. On July 13, 1983, Mr. Justice Brennan, acting as Circuit Justice for the Third Circuit, granted a stay of paragraph two (2) of Judge Toole's sequestration order, which prohibited the publication of the names and addresses of the jurors in the Banks case.*fn3463 U.S. 1303, 103 S.Ct. 3524, 77 L.Ed.2d 1284 (1983). A stay of the other ...