PRESENT: All the Justices 

THE DAILY PRESS, INC., ET AL. 

 OPINION BY 

v. Record No. 120858 JUSTICE WILLIAM C. MIMS 

 February 28, 2013 

COMMONWEALTH OF VIRGINIA, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

H. Vincent Conway, Jr., Judge 

This appeal involves a circuit court order sealing certain 

exhibits introduced during a criminal trial. First, we 

consider whether this appeal is moot because the sealing order 

no longer is in effect and the exhibits now are available for 

public inspection. Having concluded that it is not moot, we 

consider whether the sealing order violates constitutional and 

statutory guarantees of public access to criminal proceedings. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

In August 2010, a grand jury in the City of Newport News 

indicted Lillian Callender and her boyfriend, Michael Stoffa, 

for felony child neglect of Callender’s seventeen-month-old and 

twenty-seven-month-old daughters, and for second-degree murder 

of Callender’s seventeen-month-old daughter. Callender and 

Stoffa were tried separately. Following bench trials on 

January 24 and May 26, 2011, respectively, Callender and Stoffa 

were found guilty of all three charges. 

In the meantime, in March 2011, prior to Callender’s 

sentencing and Stoffa’s trial, Ashley Kelly, a reporter for The 
2

Daily Press, Inc., requested permission of the clerk of the 

circuit court to review the file related to Callender’s trial. 

Specifically, Kelly requested to review the trial exhibits, 

including photographs of and an autopsy report concerning the 

deceased child. The clerk denied this request and, on March 

28, 2011, the circuit court entered an order sealing the entire 

Callender file from public inspection until the conclusion of 

Callender’s and Stoffa’s cases (the “March 28 order”). 

The Daily Press and Kelly (collectively, “Daily Press”) 

filed a consolidated motion to intervene and motion for 

withdrawal of the sealing order. The circuit court granted the 

motion to intervene and rescinded the March 28 order, 

concluding that the order “was overbroad in sealing the entire

file.” However, the court expressed concern over protecting 

the rights of Stoffa and the Commonwealth in Stoffa’s pending 

trial. Thus, it allowed the attorneys for Callender and the 

Commonwealth “to withdraw the original exhibits from the 

Callender file to be used in the trial of the co-defendant’s 

[Stoffa’s] case, said exhibits to be returned to the Callender 

file should an appeal be noted in her case (the “April 20 

order”).”1 Daily Press requested that photocopies of the 

withdrawn exhibits remain in the public file, but the court 

instead directed that photocopies of the original exhibits be 

 1

 Callender filed an appeal in July 2011. 
3

placed in the file under seal. The court subsequently ordered 

that the original exhibits be returned to the public file at 

the conclusion of Stoffa’s trial (the “April 22 order”). 

Daily Press petitioned the Court of Appeals for a writ of 

mandamus directing the circuit court to vacate the April 22 

order. It argued that the April 22 order was contrary to the 

constitutional and statutory protections affording public 

access to criminal proceedings and was not the least 

restrictive alternative available to the court. The Court of 

Appeals denied the mandamus petition and, in light of that 

ruling, Daily Press filed a petition for appeal with the Court 

of Appeals. The Court of Appeals granted that petition, but 

subsequently held that it did not have jurisdiction to hear 

appeals from sealing orders. Daily Press, Inc. v. 

Commonwealth, 60 Va. App. 213, 222-23, 725 S.E.2d 737, 741-42 

(2012). It transferred the appeal to this Court pursuant to 

Code § 8.01-677.1. Id. We awarded Daily Press this appeal. 

II. THE MOOTNESS ISSUE 

The April 22 order expired by its own terms at the 

conclusion of Stoffa’s trial.2

 Furthermore, when Callender 

 2

 Stoffa’s trial concluded in May 2011. The Court of 

Appeals denied Stoffa’s petition for appeal in April 2012, and 

this Court refused Stoffa’s second-tier petition for appeal in 

August 2012. Thus, even if the “conclusion” of Stoffa’s 

criminal trial included any direct appeals in addition to the 

circuit court prosecution, that case has concluded. 
4

appealed her convictions in July 2011, the original exhibits 

were returned to the public file and sent to the Court of 

Appeals. Thus, Daily Press now has been able to review the 

exhibits. Consequently, the Commonwealth argues that the case 

is moot. 

 Generally, a case is moot and must be dismissed when the 

controversy that existed between litigants has ceased to exist: 

Whenever it appears or is made to appear that 

there is no actual controversy between the litigants, 

or that, if it once existed, it has ceased to do so, 

it is the duty of every judicial tribunal not to 

proceed to the formal determination of the apparent 

controversy, but to dismiss the case. It is not the 

office of courts to give opinions on abstract 

propositions of law . . . . Only real controversies 

and existing rights are entitled to invoke the 

exercise of their powers. 

E.C. v. Va. Dep’t of Juvenile Justice, 283 Va. 522, 530, 722 

S.E.2d 827, 831 (2012) (quoting Franklin v. Peers, 95 Va. 602, 

603, 29 S.E. 321, 321 (1898)). However, the Supreme Court of 

the United States has recognized that the mootness doctrine may 

be inapplicable when a proceeding is short-lived by nature. 

See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 

563 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377 

(1979); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 546-47 

(1976). “If the underlying dispute is capable of repetition, 

yet evading review, it is not moot.” Richmond Newspapers, 
5

Inc., 448 U.S. at 563 (internal quotation marks and citation 

omitted). 

The Commonwealth argues that this exception to the 

mootness doctrine should be applied sparingly. See Virginia 

Dep’t of State Police v. Elliott, 48 Va. App. 551, 554, 633 

S.E.2d 203, 204-05 (2006). We agree. But the controversy 

between the parties in this case fits squarely within the 

exception. 

First, Daily Press, as the publisher of a daily newspaper 

that routinely covers cases in the Hampton Roads area, will be 

subjected to similar sealing orders. See Gannett Co., 443 U.S. 

at 377-78. The April 22 order itself reflected the circuit 

court’s routine administrative process. The trial judge, 

noting that he was “the Chief Judge for this circuit,” stated, 

“The [c]ourt is familiar with many cases in which the 

Commonwealth has [moved] to withdraw original exhibits until 

all defendants have been prosecuted, and the [c]ourt has 

frequently granted that motion.” (Emphasis added.) “[T]he 

[c]ourt has often administratively allowed [evidence admitted 

in the trial of a defendant], upon proper documentation, to be 

withdrawn” until subsequent prosecutions of related defendants 

are completed. The trial judge also referred to “secur[ing] 

the withdrawal of any exhibits by the means customarily used.” 
6

(Emphasis added.) These statements leave no doubt that this 

controversy is capable of repetition. 

Second, if we decline to address the issues in this case 

on grounds of mootness, the dispute clearly will evade review. 

The April 22 order is “by nature short-lived.” See Nebraska 

Press Ass’n, 427 U.S. at 547. By its express terms, the order 

expired at the conclusion of Stoffa’s trial. The Commonwealth 

argues that there was ample time to review the order before the 

end of Stoffa’s trial. We disagree. Criminal trials are 

typically of short duration and, as in this case, sealing 

orders will frequently be lifted before our appellate review is 

completed.3

More importantly, the Commonwealth’s argument ignores the 

contemporaneous need of a daily newspaper for access to 

criminal proceedings. See Gannett Co., 443 U.S. at 380. The 

benefits of public access to criminal proceedings have been 

recognized since before the Magna Carta. Such access ensures 

that proceedings are conducted fairly, discourages perjury, 

safeguards against secret bias or partiality, and imparts 

legitimacy to the decisions of our judiciary.4

 See Richmond 

 3

 The fact that Daily Press was unable to obtain expedited 

review of the April 22 order through a writ of mandamus 

underscores the evasive nature of the present dispute. 

4

 Significant societal value has also been recognized from 

public access to criminal proceedings: when a shocking crime 

occurs, a community reaction of outrage typically follows, and 
7

Newspapers, Inc., 448 U.S. at 569-70. Yet, to work 

effectively, public access must be contemporaneous – the public 

must be able to scrutinize the judicial process as it takes 

place. Newspapers, such as Daily Press, serve as “surrogates 

for the public.” Id. at 573. They are “the first rough draft 

of history,”5 providing immediate descriptions of events as they 

unfold. However, the newsworthiness of a particular story is 

often fleeting. To delay or postpone disclosure undermines the 

benefits of public scrutiny and may have the same result as 

complete suppression. 

In this case, Daily Press was prohibited from accessing 

the exhibits from March until July 2011, when Callender 

appealed her convictions and the exhibits were returned to the 

public file. Unlike in Commonwealth v. Harley, 256 Va. 216, 

504 S.E.2d 852 (1998) and Baldwin v. Commonwealth, 43 Va. App. 

415, 598 S.E.2d 754 (2004), where the issues on appeal were 

moot because the appellants suffered no harm, Daily Press was 

harmed at the time its access was restricted. Neither the 

expiration of the sealing order nor the later availability of 

the exhibits cured this deprivation of the right to 

 

thereafter the open process of justice serves an important 

prophylactic purpose, providing an outlet for community concern 

and emotion. See Richmond Newspapers, Inc., 448 U.S. at 570-

71. 

5

 Alan Barth popularized this phrase as an editorial writer 

for the Washington Post in the 1940s. 
8

contemporaneously review the files. The Commonwealth cannot 

use the mootness doctrine to sidestep this deprivation. If 

every appeal of a sealing order were moot upon the expiration 

of the order, the right to contemporaneous review would have no 

value, causing irreparable injury to the public’s interest in 

open trials. We therefore conclude that the controversy before 

us is not moot. We now turn to the merits.6

III. THE MERITS 

Daily Press argues that the April 22 order violated its 

constitutional and statutory right of access to criminal 

proceedings. We agree. 

A. CONSTITUTIONAL RIGHT OF ACCESS 

The public’s constitutional right of access to criminal 

proceedings and records is well-established. The Supreme Court 

of the United States has held that “the right to attend 

criminal trials is implicit in the guarantees of the First 

Amendment.”7

 Richmond Newspapers, Inc., 448 U.S. at 580. This 

 6

 The Commonwealth now concedes that the sealing order was 

erroneous. However, we do not allow parties to define Virginia 

law by their concessions. See Tuggle v. Commonwealth, 230 Va. 

99, 111 n.5, 334 S.E.2d 838, 846 n.5 (1985); Logan v. 

Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) 

(en banc) (“Our fidelity to the uniform application of law 

precludes us from accepting concessions of law made on 

appeal.”). Consequently, we will consider the merits. 

7

 Daily Press asserts that it has a constitutional right of 

access under the First Amendment of the Constitution of the 

United States and Article I, § 12 of the Constitution of 

Virginia. These provisions are virtually identical. See, 
9

constitutional right of access extends to the inspection of 

documents filed in such proceedings. Globe Newspaper Co. v. 

Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 812 (2002). 

Although the right of access to criminal proceedings is of 

constitutional stature, it is not absolute. See Nebraska Press 

Ass’n, 427 U.S. at 570. However, the circumstances in which 

criminal trial exhibits can be sealed are limited. The 

public’s right of access can only be denied upon a strong 

showing of a compelling governmental interest, and any closure 

must be narrowly tailored to serve that interest. Globe 

Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982). 

The governmental interest asserted here as the basis for 

the sealing order was Stoffa’s Sixth Amendment right to a fair 

trial. In assessing whether closure is appropriate, there is a 

presumption in favor of openness. Richmond Newspapers, Inc., 

448 U.S. at 573. This presumption can only be overcome if 

specific findings are made that: (1) there is a substantial 

probability that the defendant’s right to a fair trial will be 

prejudiced by publicity and that closure would prevent that 

 

e.g., Black v. Commonwealth, 262 Va. 764, 785, 553 S.E.2d 738, 

750 (2001) (Hassell, C.J., dissenting) (observing that “[t]he 

freedom of speech guaranteed by Article I, § 12 of the 

Constitution of Virginia is co-extensive with the protections 

guaranteed by the First Amendment of the Constitution of the 

United States”), aff’d in part, vacated in part, and remanded, 

538 U.S. 343 (2003). Thus, for purposes of this opinion, we 

make no distinction between them. 
10

prejudice; and (2) reasonable alternatives to closure cannot 

adequately protect the defendant’s fair trial rights. PressEnterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986). To 

ensure stringent safeguarding of the constitutional rights at 

stake, courts are required to justify any decision to close 

with specific reasons and findings on the record. Id. at 13. 

We will review such findings de novo. In re Charlotte 

Observer, 882 F.2d 850, 853 (4th Cir. 1989). 

In this case, the circuit court failed to make specific 

findings necessary to justify the sealing order. The court’s 

rationale for sealing the exhibits was the possibility that 

they might be used in Stoffa’s impending trial. The court 

expressed concerns over (1) potential prejudice from 

publication of the information contained in the exhibits; and 

(2) physical damage to the original exhibits that could affect 

their admissibility in Stoffa’s trial. These rationales were 

speculative and not supported by particularized factual 

findings. 

First, there was no evidence that publication of the 

information contained in the exhibits would prejudice Stoffa’s 

right to a fair trial, or that sealing the exhibits would 

prevent any such prejudice. At the time of the March 28 and 

April 22 orders, Stoffa was scheduled to be tried without a 

jury, which made concerns over tainting the jury pool 
11

irrelevant.8 Furthermore, while protecting the original 

exhibits from damage was a valid concern, the April 22 order 

was not the least restrictive means to satisfy it. The court 

could have protected the rights of Stoffa and the Commonwealth, 

while also protecting the public’s right of access, by allowing 

the original exhibits to be withdrawn but requiring photocopies 

of the exhibits to remain in the public file. 

B. CODE § 17.1-208 

Daily Press also argues that the April 22 order violated 

the statutory presumption of open court records. Code § 17.1-

208 explicitly states that any records and papers maintained by 

the clerk “shall be open to inspection by any person.” With 

respect to our analysis, Code § 17.1-208’s statutory 

presumption of access is equivalent to the constitutional right 

of access. Court documents can only be sealed on the basis of 

“an interest so compelling that it cannot be protected 

reasonably by some measure other than a protective order,” and 

“any such order must be drafted in the manner least restrictive 

of the public’s interest.” Shenandoah Publ’g House, Inc. v. 

Fanning, 235 Va. 253, 259, 368 S.E.2d 253, 256 (1988). 

 8

 Stoffa subsequently could have elected to be tried by a 

jury. However, this possibility alone was not a sufficient 

rationale for sealing the exhibits. The court could have 

considered concerns regarding a potential jury at a later date, 

through less restrictive alternatives such as extensive voir 

dire or jury instructions addressing prejudice. See PressEnterprise Co., 478 U.S. at 15. 
12

For the same reasons that the April 22 order violated the 

Constitution of the United States and the Constitution of 

Virginia, it also violated Code § 17.1-208. There was no 

showing of a compelling governmental interest that justified 

permitting the exhibits to be withdrawn from the Callender file 

and copies of those exhibits to be placed under seal. 

IV. CONCLUSION 

Accordingly, we will vacate the order of the circuit 

court. 

Vacated.