COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

IN RE: TIMES-WORLD CORPORATION OPINION 

 PER CURIAM 

 Record No. 1145-97-3 AUGUST 12, 1997 

 

UPON A PETITION FOR A WRIT OF MANDAMUS 

 (D. Stan Barnhill; Philip W. Parker; Woods, 

Rogers & Hazlegrove, on brief), for 

petitioner. 

 (Richard Cullen, Attorney General; Gregory E. 

Lucyk, Senior Assistant Attorney General; 

Peter R. Messitt, Senior Assistant Attorney 

General, on brief), for respondent. 

 (Terry N. Grimes; Malcolm McL. Doubles; King, 

Fulghum, Snead, Nixon & Grimes, on brief), 

for Earl Conrad Bramblett. 

 Times-World Corporation ("Times-World") seeks access to the 

videotape of testimony and documents admitted into evidence in 

the competency hearing conducted on May 6, 1997, in the matter of 

Commonwealth v. Earl Conrad Bramblett, a criminal proceeding 

currently pending in the Roanoke County Circuit Court. The trial 

court ordered the competency hearing closed to the public, 

including the media. Times-World, publisher of The Roanoke 

Times, contends that the trial court's order abridges the freedom 

of the press in violation of the First Amendment of the United 

States Constitution and Article I, § 12 of the Virginia 

Constitution. Because we find that the trial court improperly 

denied Times-World access to the hearing and documents, we grant 

the petition for the writ of mandamus. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

 Earl Conrad Bramblett is charged with the murders of Blaine 

and Teresa Hodges and their two children, Winter and Anah Hodges. 

 The matter is scheduled to be tried in the Roanoke County 

Circuit Court on October 14, 1997. Following his indictment for 

these crimes, Bramblett filed a motion for change of venue and a 

notice of intent to present an insanity defense. 

 A competency hearing was scheduled for May 6, 1997, at 2:00 

p.m. On the afternoon of Friday, May 2, 1997, Bramblett filed a 

motion to exclude the media from the competency hearing. A 

hearing on Bramblett's motion was held on May 6, 1997, at 9:00 

a.m. At the hearing, Bramblett presented no evidence in support 

of his motion to exclude the media. He merely contended that his 

right to a fair trial would be prejudiced, arguing that the 

evidence presented at the hearing would not likely be admitted at 

trial and that the nature of the case rendered voir dire an 

inadequate means of producing a fair and impartial jury to hear 

the case. The Commonwealth neither opposed the motion nor 

presented any evidence. 

 The trial court granted the motion on the ground that there 

was a "basis in law" for closure. The court took notice of all 

the proceedings that had been held in the matter as of that date, 

including the fact that Bramblett had filed a motion for change 

in venue. The court expressed concern about being able to seat 

an impartial jury and noted that the evidence to be addressed at 
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the competency hearing would be inadmissible at trial. The court 

also felt that press access to a hearing where confidential 

information about Bramblett would be disclosed would compromise 

Bramblett's physician-patient privilege. The trial court did not 

expressly address in its oral ruling any less restrictive 

alternatives to closure, including voir dire. 

 That same afternoon, Times-World presented an oral motion to 

this Court requesting an order postponing the competency hearing. 

 We denied the motion but ordered the trial court to retain the 

videotape of the hearing as a potential remedy for Times-World. 

II. THE AVAILABILITY OF MANDAMUS AS A REMEDY

 Bramblett, citing Morrissette v. McGinniss, 246 Va. 378, 436 

S.E.2d 433 (1993), asserts that mandamus is unavailable to 

Times-World because mandamus is not a substitute for appeal and 

cannot be applied retroactively to correct a completed wrong. 

Morrissette, however, did not involve the closure of a criminal 

proceeding, but, rather, a citizen's attempt, through a petition 

for writ of mandamus, to challenge the creation of a public 

service authority. See id. at 381, 436 S.E.2d at 434. 

 "[M]andamus rather than appeal is the proper means to 

challenge the closure order in a pending criminal trial." In re 

Worrell Enters., Inc., 14 Va. App. 671, 675, 419 S.E.2d 271, 274 

(1992) (emphasis added); accord Baltimore Sun Co. v. Goetz, 886 

F.2d 60, 63 (4th Cir. 1989) ("Mandamus, not appeal, 'is the 

preferred method of review for orders restricting press activity 
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related to criminal proceedings.'") (quoting In re Washington 

Post, 807 F.2d 383, 388 (4th Cir. 1986) (emphasis added)). 

 Furthermore, the relief Times-World seeks, or a reasonable 

substitute therefor, is still available. We directed the trial 

court to retain a videotape of the competency hearing in the 

event that the writ was granted. Moreover, "both the parties and 

the trial judges are entitled to a decision on the merits." 

Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592, 281 

S.E.2d 915, 925 (1981) (noting that the criminal proceedings had 

been terminated by the time of the Court's review). The Supreme 

Court "has frequently recognized . . . that its jurisdiction is 

not necessarily defeated by the practical termination of a 

contest which is short-lived by nature. If the underlying 

dispute is 'capable of repetition, yet evading review,' it is not 

moot." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 

(1980) (citations omitted); see In re Times-World Corp., 7 Va. 

App. 317, 323-24, 373 S.E.2d 474, 477 (1988) (holding that a 

petition for writ of mandamus was not moot despite the fact that 

the trial had concluded by the time of appellate review).1

Morrissette is factually distinguishable from this case and 

is not controlling. Accordingly, we decline to deny the petition 

for writ of mandamus on the basis of Morrissette. 

 

 1 Both Press-Enterprise Co. v. Superior Court, 464 U.S. 501 

(1984) (Press-Enterprise I), and Press-Enterprise Co. v. Superior 

Court, 478 U.S. 1 (1986) (Press-Enterprise II), originated as 

petitions for writs of mandate in state court. 
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III. RIGHT OF ACCESS TO A CRIMINAL COMPETENCY HEARING

 In Richmond Newspapers, the United States Supreme Court 

ruled that the press has a First Amendment right to attend 

criminal trials. See 448 U.S. at 580. This qualified right of 

access was subsequently extended to juror voir dire, see

Press-Enterprise I, 464 U.S. at 501, and preliminary hearings. 

See Press-Enterprise II, 478 U.S. at 1. In Richmond Newspapers, 

222 Va. at 588, 281 S.E.2d at 922, the Virginia Supreme Court 

recognized a qualified right of press access to suppression 

hearings and motions in limine under Article I, § 12 of the 

Virginia Constitution. 

 A First Amendment right of access exists where (1) "the 

place and process have historically been open to the press and 

general public," Press-Enterprise II, 478 U.S. at 8; and 

(2) "public access plays a significant positive role in the 

functioning of the particular process in question." Id.; see In 

re Worrell, 14 Va. App. at 676, 419 S.E.2d at 274 (applying 

Press-Enterprise II test to claim of access under Virginia 

Constitution); cf. Richmond Newspapers, 222 Va. at 586, 281 

S.E.2d at 921-22 (finding no history to review with regard to 

suppression hearings and focusing, instead, on the importance of 

public access). With regard to historical access, "the 

'experience' test of Globe Newspaper [Co. v. Superior Court, 457 

U.S. 596 (1982)], does not look to the particular practice of any 

one jurisdiction, but instead 'to the experience in that type or 
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kind of hearing throughout the United States . . . .'" El Vocero 

de P. R. v. Puerto Rico, 508 U.S. 147, 150 (1993) (citation 

omitted). "If the particular proceeding in question passes these 
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tests of experience and logic, a qualified First Amendment right 

of public access attaches." Press-Enterprise II, 478 U.S. at 9. 

 "In the first inquiry, the court asks whether the type of 

proceeding at issue has traditionally been conducted in an open 

fashion." In re Washington Post, 807 F.2d at 389. Although we 

have no recorded tradition in Virginia regarding public access to 

competency hearings, courts in other jurisdictions have favored a 

qualified right of access to such proceedings. In Westchester 

Rockland Newspapers Corp. v. Leggett, 399 N.E.2d 518 (N.Y. 1979), 

applying state law, the Court of Appeals of New York found that 

the media had been improperly excluded from a competency hearing. 

 In Miami Herald Publ'g Co. v. Chappell, 403 So. 2d 1342, 1344 

(Fla. Dist. Ct. App. 1981), a Florida court found a First 

Amendment right of access to a criminal competency hearing. See 

also Society of Prof'l Journalists v. Bullock, 743 P.2d 1166, 

1178 (Utah 1987) (finding qualified right of access to competency 

hearing). 

 We have found no appellate decision, and none has been cited 

to us, denying the press a qualified right of access to criminal 

competency hearings. To the contrary, the recent trend favors 

access. Accordingly, we find the "experience" throughout the 

United States favors access, thus satisfying the first prong of 

the Press-Enterprise II test. See El Vocero de P. R., 508 U.S. 

at 150. 

 We must now determine whether the interest in public access 
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justifies granting a qualified right to attend criminal 

competency hearings. 

 "[T]he public's interest in the conduct of the judicial 

system may be even more acute when pretrial hearings are 

involved." Richmond Newspapers, 222 Va. at 587, 281 S.E.2d at 

922. In finding a state constitutional right of access to 

suppression hearings and motions in limine, the Virginia Supreme 

Court noted the importance of the public's ability to judge for 

itself whether the proper balance was being struck between the 

rights of the accused and the rights of the community. See id. 

The Court concluded that "pretrial suppression hearings are as 

important to our criminal justice system as the trial itself, and 

to allow the public to view the trial without any knowledge of 

what has taken place previously would make the right of access 

granted in Richmond Newspapers[, 448 U.S. 555,] a hollow one." 

Id. at 588, 281 S.E.2d at 922. 

 The jurisdictions that have addressed this specific issue 

have recognized the importance of press access to competency 

hearings. The court in Miami Herald noted that "'if the public 

is routinely excluded from all proceedings prior to trial, most 

of the work of the criminal courts will be done behind closed 

doors.' Competency proceedings [like other pretrial proceedings] 

may also postpone or terminate the need for trial." Miami 

Herald, 403 So. 2d at 1345 (quoting Westchester Rockland 

Newspapers, 399 N.E.2d at 523). 

 Given [the] strong public policy against 
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trying an incompetent person for a criminal 

offense, it seems plain that the proceeding 

 at which competency is determined is a 

significant one in the criminal process. The 

public should be entitled to scrutinize the 

implementation of this policy, unless strong 

countervailing considerations warrant 

closure. 

Society of Prof'l Journalists, 743 P.2d at 1178. 

 Public access can play a significant positive role in 

criminal competency hearings, thus satisfying the second prong of 

the Press-Enterprise II test. A competency hearing can postpone, 

sometimes indefinitely, the trial of an accused. Citizens of the 

Commonwealth have a right to know that the incompetent are not 

tried and that the competent do not evade trial. Because 

criminal competency hearings pass "these tests of tradition and 

logic," Press-Enterprise II, 478 U.S. at 9, we hold that both the 

First Amendment to the United States Constitution and Article I, 

§ 12 of the Virginia Constitution grant the media a qualified 

right to attend these proceedings. 

 Once a First Amendment right attaches, access to a 

proceeding can only be denied by showing "a 'compelling 

governmental interest' and the denial must be 'narrowly tailored 

to serve that interest.'" In re Times-World, 7 Va. App. at 325, 

373 S.E.2d at 478 (quoting Globe Newspaper, 457 U.S. at 606-07). 

 The court ordering closure must make "specific . . . findings 

that (1) there is a substantial probability that the defendant's 

right to a fair trial will be prejudiced by publicity; (2) there 

is a substantial probability that closure would prevent that 
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prejudice; and (3) reasonable alternatives to closure cannot 

adequately protect the defendant's fair trial rights." In re 

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

Press-Enterprise II, 478 U.S. at 14). "[T]he trial judge shall 

articulate on the record his findings that the evidence supports 

the moving party's contention that an open hearing would 

jeopardize the defendant's fair trial rights . . . ." Richmond 

Newspapers, 222 Va. at 590, 281 S.E.2d at 924 (emphasis added). 

 While adverse publicity might impair the defendant's ability 

to receive a fair trial, the mere "risk of prejudice does not 

automatically justify refusing public access to hearings on every 

motion to suppress." Press-Enterprise II, 478 U.S. at 15. "The 

First Amendment right of access cannot be overcome by the 

conclusory assertion that publicity might deprive the defendant 

of [the right to a fair trial]." Id. "[T]he burden [is] on the 

moving party to show that an open hearing would jeopardize the 

defendant's right to a fair trial." Richmond Newspapers, 222 Va. 

at 590, 281 S.E.2d at 924 (citing Gannett Co. v. DePasquale, 443 

U.S. 368, 401 (1979)). Furthermore, even if a substantial 

probability exists that publicity will impair the defendant's 

right to a fair trial, the court must still review alternatives 

to closure that will protect the defendant's rights. See In re 

Charlotte Observer, 882 F.2d at 853. 

 The intervenor has "the burden of showing that reasonable 

alternatives to closure are available." Richmond Newspapers, 222 
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Va. at 590, 281 S.E.2d at 924. The Supreme Court has identified 

voir dire as an effective alternative a trial court can employ to 

"identify those jurors whose prior knowledge of the case would 

disable them from rendering an impartial verdict." 

Press-Enterprise II, 478 U.S. at 15. The court in In re 

Charlotte Observer remarked that the trial court gave "much too 

short shrift to the capability of jury voir dire to guard against 

the potential prejudice of pretrial publicity . . . . Voir dire

is of course the preferred safeguard against this particular 

threat to fair trial rights." In re Charlotte Observer, 882 F.2d 

at 855. The court then noted the efficacy of voir dire in cases 

involving the Watergate defendants, the Abscam defendants, and 

John DeLorean. See id.; see also Thomas v. Commonwealth, 244 Va. 

1, 11, 419 S.E.2d 606, 611 (finding, in denying defendant's 

motion for change in venue, that voir dire is the best tool for 

uncovering the truth about possible bias resulting from pretrial 

publicity), cert. denied, 506 U.S. 958 (1992). 

 Bramblett argues that allowing Times-World access to the 

competency hearing would jeopardize his right to a fair trial. 

However, 

 [e]vidence relevant and admissible to 

establish the defendant's capacity to 

understand the legal proceedings and to 

assist his attorney would ordinarily reveal 

little or nothing about his possible guilt of 

the crimes charged. Nor is it foreseeable 

that public disclosure of the proof would 

frustrate the purpose of such a hearing. 

Westchester Rockland Newspapers, 399 N.E.2d at 524. "Statements 
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concerning the defendant's guilt, innocence or sanity at the time 

of the offense are not material because they relate to different 

issues. It is therefore unlikely that testimony jeopardizing a 

defendant's right to a fair trial would be elicited." Miami 

Herald, 403 So. 2d at 1344; see Society of Prof'l Journalists, 

743 P.2d at 1178 (noting that "pretrial competency hearings 

present fewer inherent dangers of prejudice than preliminary 

hearings"). 

 The trial court was concerned with the implications of 

access on Bramblett's physician-patient privilege. However, 

"[t]here exists . . . no physician-patient privilege in a 

criminal prosecution in Virginia. The common law recognized no 

such privilege in either civil or criminal proceedings. While 

Virginia has enacted a statutory privilege, it is expressly 

confined to civil proceedings." Gibson v. Commonwealth, 216 Va. 

412, 414, 219 S.E.2d 845, 847 (1975), cert. denied, 425 U.S. 994 

(1976) (citation omitted). Even in civil matters, however, the 

privilege is waived if the mental condition of the patient is at 

issue. See Code § 8.01-399(B). It would follow, by analogy, 

that no physician-patient privilege supersedes the media's 

constitutional right to attend such a proceeding, because the 

defendant's mental condition is at issue in a criminal competency 

hearing. 

 The parties presented no testimony or physical evidence in 

support of the motion to close the competency hearing. Thus, the 
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trial court had no evidence on which to make findings of fact in 

support of its order of closure. Furthermore, while the court 

noted its concern about seating an impartial jury, it did not 

expressly address voir dire or other reasonable alternatives to 

closure. Bramblett failed to establish a substantial probability 

that his right to a fair trial would be prejudiced by allowing 

Times-World access to the videotape of the competency hearing. 

Further, we are satisfied that properly conducted voir dire is a 

reasonable available alternative to closure. Accordingly, we 

hold that the trial court erred by denying Times-World access to 

the competency hearing. 

IV. ACCESS TO DOCUMENTS ADMITTED AT COMPETENCY HEARING

 The same analysis employed to determine whether the media 

has a right of access to a criminal competency hearing is 

applicable to determine media access to documents that were 

submitted into evidence therein. See In re Worrell, 14 Va. App. 

at 676, 419 S.E.2d at 274; see also In re Washington Post, 807 

F.2d at 390 ("[T]he First Amendment right of access applies to 

documents filed in connection with plea hearings and sentencing 

hearings in criminal cases, as well as to the hearings 

themselves."); In re New York Times Co., 828 F.2d 110 (2d Cir. 

1987) (finding that the right of access extended to motions 

papers submitted by a defendant seeking to suppress evidence); 

Associated Press, Inc. v. United States Dist. Court, 705 F.2d 

1143, 1145 (9th Cir. 1983) (finding First Amendment right of 
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access extends to "pretrial documents in general"). 

 We have held that the media does not have a constitutional 

right of access to documents produced by parties through 

discovery in a criminal matter. See In re Worrell, 14 Va. App. 

at 680, 419 S.E.2d at 277. The documents here, however, are not 

unfiled discovery documents but were admitted into evidence in a 

proceeding that should have been open to the public. Cf. People 

v. Adkins, 514 N.W.2d 148, 150 (Mich. 1994) (finding no qualified 

right of access to criminal competency report not admitted into 

evidence). Accordingly, In re Worrell is not controlling. We 

hold that our rationale allowing Times-World access to the 

videotape of the competency hearing is equally applicable to the 

documents admitted into evidence therein. 

V. CONCLUSION

 In summary, we hold that the First Amendment of the United 

States Constitution and Article I, § 12 of the Virginia 

Constitution grant a qualified right of access to criminal 

competency hearings and documents admitted into evidence therein. 

 Bramblett presented no evidence showing a substantial 

probability that his right to a fair trial would be prejudiced by 

Times-World's access to the videotape of the proceeding or to the 

documents admitted therein. Likewise, the trial court made no 

findings of fact in support of the closure order, nor did it 

sufficiently consider the reasonable alternatives to closure, 

including voir dire. Accordingly, the application for a writ of 
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mandamus is granted. 

 Granted.