KPNX BROADCASTING COMPANY, a corporation; Kenneth Montoya, and Jack Crow, Petitioners,
The SUPERIOR COURT of the State of Arizona In and For the COUNTY OF MARICOPA; the Honorable Cecil B. Patterson, Jr., a judge of said Court; and The State of Arizona; Murray Hooper, and William Bracy, Real Parties in Interest, Respondents.
Rehearing Denied Feb. 28, 1984.
[139 Ariz. 248] Molloy, Jones, Donahue, Trachta, Childers & Mallamo, P.C. by Michael J. Meehan, D. Michael Mandig, Tucson, for petitioners.
Thomas E. Collins, Maricopa County Atty. by Michael D. Jones, Sp. Deputy County Atty., Joseph L. Brownlee, Deputy County Atty., Lewis & Roca by Paul G. Ulrich, Phoenix, for respondents.
HOLOHAN, Chief Justice.
This petition for special action contests the validity of certain orders issued by the respondent judge in the criminal trial of State v. Hooper and Bracy, Maricopa County Superior Court No. CR-121686.  We have jurisdiction under Arizona Constitution Article 6 § 5.
Specifically, petitioners requested vacation of two orders made by the respondent judge that affected the media. First, petitioners challenge the order which required courtroom sketches of the jury drawn for television broadcast to be submitted to the respondent judge before being released for broadcast (sketch order). Second, petitioners challenge the order which prohibited counsel, court personnel, jurors or other trial participants from contacting the media during the course of the trial (media liaison order). Petitioners maintain that both orders are unlawful prior restraints of media communications and cannot withstand the scrutiny given such orders under the First Amendment to the United States Constitution. The respondent judge asserts that both orders were necessary and proper to guarantee the rights of the accuseds to a fair trial.
This case presents another of those difficult situations where the often competing interests of free press and fair trial strain against each other. To understand the problems presented to the trial judge it is necessary to review the factual background leading up to the orders. Additional facts peculiar to each order will be included in the discussion of that order.
[139 Ariz. 249]
Kenneth Montoya, a reporter for KPNX, a Phoenix television station, and Jack Crow, a courtroom sketch artist (petitioners) were assigned to cover the criminal trial of Murray Hooper and William Bracy, which was being conducted before the respondent judge. Hooper and Bracy were charged with the murder of William Patrick Redmond and Helen Phelps. The case was the third in a series of prosecutions arising out of those murders.  The Redmond murder achieved notoriety and received extensive media coverage because of its overtones of organized crime and contract killing.
After completion of jury selection, both prosecution and defense counsel requested the respondent judge to limit contact between trial participants and the media. The respondent judge entered such an order. The original order, dated November 4, 1982 was later modified by an amended order dated December 6, 1982. The amended order changed the direction of the November 4th order from the media to the attorneys, court personnel, jurors, or other participants. The operative language of the first order, "no attorneys, court personnel, jurors or other participants in this matter are to be contacted by the media during the course of this matter" became "no attorneys, court personnel, jurors or other participants in this matter are to be in contact with the media during the course of this matter." (emphasis added). Petitioners' challenge addresses the amended order of December 6. The amended order appointed as "court media liaison" a member of the Maricopa County Court Administrator's staff to handle media inquiries "so that there will be a unified and singular source for the media concerning these proceedings." The amended order concluded: "no other source of information will come from participants in these proceedings."
Reacting to sketching of the jury on November 30, 1982, the respondent judge issued an oral order through his "court media liaison" that any courtroom sketches of the jury must be reviewed by the court before presentation on television. The trial judge believed the order was necessary to allay jurors' fears. In findings dated December 20, 1982, he pointed to "concern at the possibility of retribution and fear for personal and family safety expressed by some of the venire members." Respondent issued the order based on his interpretation of this Court's order suspending Rule 45, Canon 3A(7), 17A A.R.S. Rules of the Supreme Court which barred cameras from the courtroom. Except for the two challenged orders, the trial remained open to the general public and the media.
The first challenge to the orders was brought by a group called "The First Amendment Coalition." On December 6, 1982, the group, along with petitioner Montoya, filed a petition for special action asking this court to stay or vacate both orders.  We declined jurisdiction and dismissed the petition on December 8, 1982, because (1) First Amendment Coalition had not shown standing to bring the special action, (2) petitioners failed to join the real parties in interest, and (3) petitioners failed to exhaust their remedies in the trial court before seeking relief by special action. The standing of petitioners in the instant action has not been challenged.
The next media action was the present petition for special action, and its companion case, Brice v. Superior Court of Arizona, 138 Ariz. 260, 678 P.2d 445 (1984). After successfully moving to intervene in the trial court, KPNX requested the respondent judge to vacate the orders. He refused. This petition followed on December[139 Ariz. 250]
13, 1982.  Both orders remained in force for the duration of the underlying trial, which concluded with a guilty verdict on December 24, 1982.
The first issue which must be resolved is whether the validity of these orders became moot when the trial was completed, and the order prohibiting contact with the media was vacated on January 12, 1983. It is firmly established that "jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one 'capable of repetition, yet evading review.' " Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976), quoting Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). We believe it reasonable to conclude that KPNX will be faced with similar orders in the future, and that such orders would "evade review" because criminal trials are "typically of short duration." See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377-378, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979); United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir.1982); Sacramento Bee v. United States District Court, 656 F.2d 477, 480 (9th Cir.1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2257, 72 L.Ed.2d 861 (1982). Indeed, the petitioners have furnished us with an example of an order barring sketching during jury selection entered in another case tried in Maricopa County subsequent to the Hooper and Bracy cases. See petitioners' Motion for Leave to File Supplemental Memorandum and to Supplement the Record. We conclude that the case is not moot.
Petitioners forcefully assert that the oral order requiring television sketch artists to submit jury sketches for the trial court's review constitutes an unlawful prior restraint of expressions protected by the First Amendment. Petitioners also maintain that the sketch order violates the Equal Protection Clause of the Fourteenth Amendment because it restrains publication by the television media but not by the print media. We invalidate the sketch order on First Amendment grounds, and do not reach the latter argument.
The respondent judge defends the validity of the sketch order as based on this court's "Order Temporarily Suspending Rule 45, Canon 3(A)(7), Rules of the Supreme Court," and Maricopa County Superior Court "Guidelines for the Media," 10(c). This court's order, filed December 23, 1981, which included certain guidelines, suspended from March 1, 1982 until March 1, 1983 part of Rule 45 to allow for electronic and still photographic coverage of public proceedings in all courts of the State of Arizona on an experimental basis. 
One of the guidelines in the December 23 order was Guideline 10 which prohibited "coverage of jurors in a manner that will permit individual recognition by the public...." Similarly, the Maricopa County Superior Court Guideline 10(c) prohibited photographing jurors. Respondent interpreted these guidelines as prohibiting television broadcast of "specific likenesses of [139 Ariz. 251]
jury members" whether captured on tape, film, or sketch pad. The respondent judge felt that "sketches ... were to be used in lieu of actual electronic television recordation of the jurors...."
Respondent limited the sketch order's application to sketches made for television broadcast. Apparently, respondent felt that sketching for television broadcast amounted to television camera coverage of jurors which was forbidden by this court's order and guidelines. Although the trial judge was probably accurate in characterizing the media's attempt to circumvent our guideline, our conclusion that respondent misinterpreted both this court's guidelines and those of the Superior Court remains unchanged. Our Guideline 8  and the Superior Court's Guideline A  clearly excepted from coverage media representatives not using cameras or electronic equipment. Our Guideline 10 prohibited coverage that permitted individual recognition of jurors, but did not concern sketching. We recognize that sketch artists occasionally create startling likenesses. Nonetheless, pens and pads remain beyond the reach of our camera guidelines. 
Although we agree with the legal position of petitioners, we understand the motivation of the trial judge in issuing the sketch order. It is undisputed that the respondent judge sought to protect the jury from public identification. He believed that the jurors were concerned about possible retribution by those affected by their verdict. By reducing the jury's concerns, the respondent judge believed that he increased the likelihood that the criminal defendants would receive a "trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). However unconstitutional the result, the concerns were reasonable.
However, beginning with Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 1357, 75 L.Ed. 1357 (1931), the United States Supreme Court has subjected any order prohibiting the publication or broadcast of certain information to a " 'heavy presumption' against its constitutional validity." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971). The Court explained the heavy burden on the government by stating:
A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication "chills" speech, prior restraint "freezes" it at least for the time. Nebraska Press Ass'n. v. Stuart, supra, 427 U.S. at 559, 96 S.Ct. at 2803, 49 L.Ed.2d 683 (1976) (footnote omitted).
The Stuart opinion concluded that "the protection against prior restraint should have particular force as applied to reporting of criminal proceedings...." Id. After Stuart, the validity of the sketch order depends on the (1) gravity of harm posed by media coverage; (2) whether other measures short of a prior restraint would have adequately protected the fair-trial right; and (3) how effectively the sketch order avoided the threat to a fair trial. Id. at 562, 96 S.Ct. at 2804.
First, what was the gravity of the harm posed by media coverage in the absence of the sketch order? The evil that concerned respondent was "the possibility [139 Ariz. 252]
of retribution and fear for personal and family safety expressed by some of the venire members" when informed of the nature of the prosecution. In the absence of a specific finding, we can only assume that respondent felt that the jury's verdict would be based on fear rather than evidence adduced at trial. But the record indicates that out of the approximately 150 member pool from which the panel was selected, the number expressing fear equalled "several." Moreover, the record indicates that all of the "several" people expressing fear were ultimately struck from the jury panel. Although the nature of the trial justified respondent's concern, without the sketch order the harm posed by the coverage was less than grave.
Second, were there other measures short of a prior restraint which would have adequately protected the fairness of the trial? Other measures short of a prior restraint were available, and some were employed. Two common alternatives to prior restraint are thorough voir dire and sequestration of the jury during the trial. See Nebraska Press Ass'n. v. Stuart, supra, 427 U.S. at 564, 96 S.Ct. at 2805. See also Rules 18.5(d), 19.4, Arizona Rules of Criminal Procedure, 17 A.R.S. Searching voir dire questioning did indeed take place. Prospective jurors answered a lengthy questionnaire that revealed the "gruesome nature of the homicides" and that the homicides occurred in a private residence. The parties and respondent conducted individual voir dire for over two weeks. Finally the use of strikes for cause and peremptory challenges apparently removed those jurors who actually expressed fear. It must be noted, however, that the trial judge represented to the jury panel that jurors would not be photographed for television. While this assurance may have weighed with some jurors there was no record made that any member of the jury was concerned about the sketches being shown on television.
The third consideration is the effectiveness of the order. Simply put, the sketch order was completely ineffective to protect the identities of the jury and the fair trial rights of the accused. First, the order did not prohibit the print media from publishing jury sketches. At least one newspaper published a sketch of the jury. Surely the harm, to the extent it existed, would manifest itself greater in the more permanent medium of print. In addition, the trial was completely open from its beginning. From October 18, when jury selection began, to December 24, when the jury returned its verdict, anyone desiring familiarity with jury names and faces had ample opportunity to do so by the simple device of attending the trial and examining the minutes filed in the case.
We conclude that the perceived harm falls short of the Stuart test. Jury fear was neither significant nor imminent enough to justify the censorship, less restrictive measures would have sufficed, and the sketch order promised very limited success in tempering the media involvement.
The effect of the restraint was an infringement of petitioners' First Amendment right to attend and report on public criminal trials. See Globe Newspaper Co. v. Superior Court, supra, 457 U.S. at 603, 102 S.Ct. at 2618. But "once a public hearing had been held, what transpired there could not be subject to prior restraint." Nebraska Press Ass'n. v. Stuart, supra, 427 U.S. at 568, 96 S.Ct. at 2807. "Once beyond the confines of the courthouse, a news-gathering agency may publicize, within wide limits, what its representatives have heard and seen in the courtroom." Estes v. Texas, 381 U.S. 532, 589, 85 S.Ct. 1628, 1663, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring). Part of what the media representatives in this case have seen in the courtroom is the jurors' likenesses. We believe that sketches depicting jurors' reactions and behavior are protected by the First Amendment right to attend a public criminal trial, because that information is garnered from information placed "in the public domain," Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328 (1975), and because
[139 Ariz. 253] "what transpires in the courtroom is public property." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). The likenesses of jurors were equally in "the public domain" as the rape victim's name in Cohn.
While we invalidate the sketch order in this case, we do not rule out the possibility that threats to the fair-trial rights of a criminal defendant could justify some form of prior restraint. First Amendment rights are not absolute. "This Court ... has consistently rejected the proposition that a prior restraint can never be employed. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)." Nebraska Press Ass'n. v. Stuart, supra, 427 U.S. at 570, 96 S.Ct. at 2808. And, in the instant context, "[a]lthough the right of access to criminal trials is of constitutional stature, it is not absolute." See Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 581, n. 18, 100 S.Ct. at 2830, n. 18 (plurality opinion); Nebraska Press Assn v. Stuart, 427 ...