FILED

February 24, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1997

THE KNOXVILLE NEWS- ) C.C.A. NO. 03C01-9708-CR-00331

SENTINEL, )

Appellee, )

)

) KNOX COUNTY

VS. )

) HON. RICHARD R. BAUMGARTNER

THOMAS DEE HUSKEY, ) JUDGE

)

Appellant. ) (Tenn. Rule App. P. 9 Appeal - 

) Motion to Unseal Record)

In Re: )

)

STATE OF TENNESSEE )

)

Appellee, )

)

v. )

)

THOMAS DEE HUSKEY, )

)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

HERBERT S. MONCIER RICHARD L. HOLLOW

Suite 775 Nationsbank Center NATHAN D. ROW ELL

550 Main Street Watson, Hollow & Reeves, PLC

Knoxville, TN 37902 1700 First Tennessee Plaza

Knoxville, TN 37901-0131

GREGORY P. ISAACS

Suite 280 One Centre Square JOHN KNOX WALKUP

Knoxville, TN 37901 Attorney General and Reporter

JOHN H. BAKER, III

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

RANDALL E. NICHOLS

District Attorney General

City-County Building

Knoxville, TN 37902

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

In this interlocutory appeal taken pursuant to Tennessee Rule of Appellate

Procedure 9, the Appellant, Thomas Dee Huskey, asks this Court to reverse the

decision of the Knox County Criminal Court allowing Intervenor-Appellee, the

Knoxville News-Sentinel, (hereinafter KNS), to inspect previously sealed summary

cover sheets of attorney fee and expense claims which set forth the total fees and

expenses paid to defense counsel out of public funds dedicated for use in

representing indigent criminal defendants. The trial court also ordered unsealed

those documents reflecting the total amounts paid out for the services of expert

witnesses in the defense of the case. Detailed attorneys fee and expense claims,

motions and orders dealing with authorization of expert services, and detailed time

sheets of undisclosed defense experts were left sealed and unavailable for public or

press inspection.

The Appellant claims the trial court’s order is illegal, unconstitutional, and

prejudices his right to a fair trial. The Appellee argues that the well-recognized and

constitutionally prescribed public nature of judicial proceedings in this state

mandates that the public and press be allowed to examine the documents which

were unsealed by the trial court.

After a careful review of the record and the extensive briefs filed in this matter

we are of the opinion that the judgment of the trial court must be affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Appellant, Thomas Dee Huskey, was charged in 1992 with the

commission of thirty-two separate offenses involving ten victims. Four of the alleged

offenses are charged as capital murder. The case has generated a great deal of
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publicity in Knox County and the surrounding area. The trial of the capital cases is

currently stayed due to the pendency in the Tennessee Supreme Court of a

separate interlocutory appeal dealing with a court-ordered mental evaluation of Mr.

Huskey.

Mr. Huskey is indigent and two attorneys were appointed to represent him.

Over time these attorneys have submitted to the trial court various requests for

attorneys fees and expenses, including money for the payment of expert witnesses

assisting in Mr. Huskey’s defense. These documents were ordered held under seal. 

On June 2, 1997, KNS filed a motion to intervene in the case and asked the trial

court to unseal documents pertaining to any application for, support of, or payment

of fees or expenses in connection with the defense of the case. On June 6, 1997,

the trial court granted KNS permission to intervene, and on July 11, 1997, a hearing

was conducted on the petition of KNS for access to the documents in question.

On July 16, 1997, the trial court entered an order partially granting the

newspaper’s motion. The court ordered:

(1) That detailed time sheets and detailed expense sheets

submitted by defense counsel in this matter, shall remain sealed until

the cases are concluded, but the summary cover sheets setting forth

the total amount paid to defense counsel shall be unsealed.

(2) That motions requesting expert services and the orders

authorizing those services shall remain sealed until the conclusion of

these cases.

(3) That the detailed time sheets of the authorized experts in this

case shall remain sealed, but the total amount paid to experts or for

expert services shall be unsealed. If a particular expert has offered

evidence in the case and is known to the public through on the record

proceedings then the total amount paid to those individual experts will

be disclosed. All other experts or expert services not heretofore of

record shall remain unidentified until the cases are concluded, but the

total amount paid for those services shall be released as a lump sum.

The trial court further ordered that the documents ordered unsealed be forwarded to

this Court, and we now have them before us.
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On August 14, 1997, Mr. Huskey’s attorneys filed an application for an

interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. The

application was granted by the trial court on the same day. On September 3, 1997,

this Court granted the application and the matter is now before this Court.

II. TRIAL COURT JURISDICTION

Appellant’s first complaint regards the jurisdiction of the trial court to grant the

relief requested by KNS. Appellant maintains that this is not an appropriate action

under the Tennessee Public Records Act, Tennessee Code Annotated Section 10-

7-501, et seq., and no other provision of the law allows the criminal court to grant

KNS the right to inspect these documents.

Tennessee Code Annotated Section 10-7-503(a) declares:

All state, county and municipal records and all records

maintained by the Tennessee performing arts center

management corporation, except any public documents

authorized to be destroyed by the county public records

commission in accordance with § 10-7-404, shall at all

times, during business hours, be open for personal

inspection by any citizen of Tennessee, and those in

charge of such records shall not refuse such right of

inspection to any citizen, unless otherwise provided by

state law.

Tennessee Code Annotated Section 10-7-504 contains a number of exceptions to

the generally public nature of governmental records, however, none of those

exceptions are pertinent here. In addition the Tennessee Supreme Court has

recognized other exceptions to the right to inspect public records.

In Appman v. Worthington, 746 S.W.2d 165 (Tenn. 1987); the Tennessee

Supreme Court held that documents in an active criminal case which would not be

subject to discovery and inspection under Tennessee Rule of Criminal Procedure 16

are not subject to inspection under the Public Records Act. The Court reasoned

that Rule 16's protection of certain material from discovery constituted an exception
1Cou rts ha ve inh eren t power to s eal their rec ords when privacy interes ts outweig h the public ’s

right to kno w. In re Knoxville News-Sentinel Co., Inc. 723 F.2d 470 (6th Cir. 1983).

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to Public Records Act inspection in an active criminal prosecution. In the case sub

judice, Mr. Huskey alleges that Tennessee Rule of Criminal Procedure 16(b)(2)

exempts the documents in question from inspection under the Public Records Act

and thus the trial court should not permit inspection of the documents by the media. 

We disagree.

Rule 16(b)(2) provides:

Information not Subject to Disclosure. -- Except as to

scientific or medical reports, this subdivision does not

authorize the discovery or inspection of reports,

memoranda, or other internal defense documents made

by the defendant, or the defendant’s attorneys or agents

in connection with the investigation or defense of the

case, or of statements made by the defendant, or by

state or defense witnesses, or by prospective state or

defense witnesses, to the defendant, the defendant’s

agents or attorneys.

It is obvious that this rule is designed to maintain confidentiality with respect

to materials connected to the substantative defense of a criminal prosecution. While

many of the documents left sealed by the trial court may fit into this category since

they might reveal defense confidences such as the names of potential experts and

the subjects of their research, it is apparent that the cover sheets which merely

reflect totals paid to attorneys and experts do not reveal any defense confidences. 

Such materials do not fall within the purview of Rule 16(b)(2).

Secondly, and perhaps more importantly, the only reason the materials in

question were confidential in the first place is because the trial court ordered the

materials sealed.1 Documents sealed by a court of this state are not subject to

inspection under the Tennessee Public Records Act. Ballard v. Herzke, 924 S.W.2d

652, 662 (Tenn. 1996). However, because of the general public right of access to

courts and their records, it is appropriate to allow media entities to intervene in court
2Ballard involved media intervention in a civil case wherein the intervenors sought modification of

a protective order which had sealed discovery documents in a highly publicized dispute concerning the

financial operation of a retirement community in Memphis, Tennessee. We believe however that the

reasoning of Ballard applies with equal force to the instant case.

3Article I, Sec . 19 of the C onstitution o f Tenn essee presum ably extend s a sim ilar qualified righ t to

the public. That section provides:

That the printing presses shall be free to every person to examine the proceedings of the

Legislature; or of any branch or officer of the government, and no law shall ever be made

to restrain the right thereof. The free communication of thoughts and opinion, is one of

the invaluable rights of man, and every citizen may freely speak, write, and print on any

subject, being responsible for the abuse of that liberty. But in prosecution for the

publication of p apers investig ating the official cond uct of offic ers, o r me n in pu blic

capacity, the truth thereof may be given in evidence; and in all indictments for libel, the

jury shall hav e a right to de termin e the law a nd the fa cts, und er the direc tion of the c ourt,

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proceedings wherein the intervenors seek modification of a court order sealing

judicial records from public inspection. Id.

2

Ballard is but the last in a line of Tennessee cases recognizing the public’s

right to intervene and examine judicial proceedings when the public’s right to know

can be balanced against the right of litigants to a fair adjudication of the

substantative civil or criminal proceeding. See, e.g., State v. James, 902 S.W.2d

911 (Tenn. 1995); State v. Drake, 701 S.W.2d 604 (Tenn. 1985).

Taken together we believe this line of cases firmly establishes the right of the

public, including the media, to intervene in court proceedings for the purpose of

attending the proceedings, or for the purpose of petitioning the Court to unseal

documents and allow public inspection of them. We believe the trial court properly

allowed KNS to intervene in this case.

III. RIGHT OF PUBLIC ACCESS TO COURT PROCEEDINGS AND DOCUMENTS

As noted earlier, the Tennessee Supreme Court has recognized a qualified

right of the public, founded in common law and the First Amendment to the United

States Constitution, to attend judicial proceedings and to examine the documents

generated in those proceedings.3 Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.
as in other criminal cases.

See als o, H&L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444 (Tenn. 1979) (holding both the

First Am endme nt to th e Un ited States Con stitutio n and Art. I, § 19 ar e not abso lutes and that narrowly

tailored res trictions on free spe ech m ay be utilized to se rve imp ortant go vernm ental interes ts.)

4

Facsimile of blank cover sheets such as those for which public inspection was granted appear as

Appendices A and B at 880 F.2d 634-635.

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1996). However, this right of access is not absolute and it must be balanced against

other interests such as a criminal defendant’s right to a fair trial. State v. Drake, 701

S.W.2d 604, 607 (Tenn. 1985). This balance must be carefully struck, and any

restriction on public access must be narrowly tailored to accommodate the

competing interest without unduly impeding the flow of information. Id.

In the context of a request by a media entity to examine sealed fee and

expense documents relating to public monies expended in the defense of indigent

criminal defendants, the balancing of competing interests discussed supra., is best

illustrated by a federal case that is remarkably similar to the case at bar. In United

States v. Suarez, 880 F.2d 626 (2nd Cir. 1989); a Connecticut newspaper was

allowed to intervene in a federal armed robbery prosecution involving the theft of

$7.6 million from a Wells Fargo depot in West Hartford, Connecticut. The

newspaper petitioned the district court to allow inspection of, inter alia, sealed

summary cover sheets on fee and expense documents which reflected interim

amounts expended out of public funds for expert services and attorneys fees

connected to the defense of the indigent defendants. The district court granted the

newspaper access to these cover sheets. These cover sheets reflected total

amounts expended out of public monies, but did not contain detailed information

about particular subjects of expert inquiry, nor did the cover sheets disclose

information which might reveal defense strategy beyond that already known to the

prosecution.4

 The United States Court of Appeals for the Second Circuit held that

the newspaper was entitled to the limited access granted by the district court, since
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public inspection of the cover sheets would not prejudice the defendant’s rights to a

fair trial. Id. at 629.

In reaching its decision, the court in Suarez rejected the very same

arguments posited by Mr. Huskey in the instant case. The court found that the

“barebones data” contained in the cover sheets would not reveal defense strategies

so as to prejudice the defendant’s rights to a fair trial. Id. at 631. The court

concluded that examination of the documents did not compromise the defendant’s

rights to attorney-client privilege, work product protection, or the effective assistance

of counsel. Id.

Finally, the Suarez court noted that the defendants argued that their right to

the equal protection of the law was being violated by the limited access to

documents afforded the press. The defendants contended, as does Mr. Huskey,

that were they not indigent they would not be required to disclose such fee and

expense information as that contained in the cover sheets. The court found

however, that while the public has no protected interest in knowing how privately

retained attorneys and experts are compensated, it has a strong interest in knowing

how public monies are expended. This difference justifies the disparity in treatment,

however unfortunate, between indigent and non-indigent criminal defendants. Id. at

632.

We are persuaded that the Suarez decision reflects a well-reasoned

approach to the issues presented by the Appellant, Mr. Huskey. The documents

which were unsealed by the trial court contain only total amounts authorized and

expended in the defense of this case. Documents which might reveal defense

strategies or the identities of previously undisclosed experts remain sealed under

the trial court’s order of limited public access. We are unable to discern how
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revelation of the “barebones” information ordered unsealed will prejudice Mr.

Huskey’s right to a fair trial. We also reject for reasons stated in Suarez and

discussed supra., that revelation of these documents will compromise work product

protections, attorney-client privilege, deprive Mr. Huskey of the effective assistance

of counsel, or violate Mr. Huskey’s right to the equal protection of the law.

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, JUDGE

___________________________________

DAVID H. WELLES, JUDGE