In Westminster, Md. last month, a judge ordered the public and press out of a rape trial, saying the victim in the case would be embarrassed by their presence during the trial.
In Oakland, Calif., a judge closed a pre-trial hearing in a murder case at the request of a defense attorney and despite vigorous protests from the prosecutor and the press. The judge said he had no other choice.
Members of the public, but not the press, were allowed to watch jury selection in a Conway, S.C. rape case, after the judge decided that news reports would jeopardize the defendant's right to a fair trial.
Those examples were among more than 30 cases, cited by the Reporters Committee for Freedom of the Press, in which recent efforts have been made to keep the press out of the courtroom. The judges have indicated they were acting on the authority of a July 2 U.S. Supreme Court decision which held the public has no constitutional right to attend criminal trials.
The Supreme Court's decision is "being read for all it's worth" by trial court judges, said Harvard Law School's Laurence H. Tribe, a constitutional law specialist.
According to the reporters committee research, press access to proceedings was banned or upheld on appeal in 18 cases since the Supreme Court's July 2 decision, and 10 requests for closure were turned down by the county.
In two other cases, closure motions were not acted on by the court and in a third, a judge of the requests came in pre-trial hearings did not ban reporters from some of the proceedings but forbade them from writing about them.
At least 20 of the requests came in pre-trial hearings but seven involved full trial proceedings, the committee found. Motions to seal off proceedings were also made in a probable cause hearing and in a sentencing proceeding, the committee said.
In the majority of those cases, prejudicial publicity was cited as the request for closing the courtroom proceeding. But in two cases, "embarrassment" was the factor relied on to request the hearing to be closed.
For example, in Buffalo, N.Y. three days after the Supreme Court's decision, a judge agreed to seal off a pretrial hearing involving a Roman Catholic nun who was charged with mistreating a student. According to the committee, her lawyer had argued that the proceeding could be embarrassing to the nun.
In another case, recently upheld on the Virginia Supreme Court, a trial judge who agreed to close off a trial noted that the physical layout of the courtroom was unsuitable for a large number of observers. They might distract the jury, he said.
"The principle (in the U.S. Supreme Court case) begins to spread to matters that look more to convenience than prejudice," said A. E. Dick Howard of the University of Virginia, who is also a constitutional expert.
The Supreme Court 5-4 ruling was handed down in the case of a reporter from the Gannett newspaper chain who was banned from a New York pre-trial hearing on suppression of a piece of evidence. The lower court judge had granted a defense motion - which the prosecution did not oppose - to close the hearing.
In its decision, the Supreme Court majority agreed that when the prosecution, defense and the court conclude that a hearing should be closed to avoid prejudicial publicity, the public has no independent, constitutional right to be in the courtroom.
The scope of the ruling was viewed in three different ways by justices who concurred in the opinion - a factor that may account for the confusion of cases since then in the lower courts, legal observors said.
"It's just easier to err on the side of closing things down," said Harvard's Tribe.
Chief Justice Warren E. Burger, for example, stressed that he was speaking to the notion of a "pre-trial" hearing. Justice Lewis F. Powell Jr. joined with the majority but warned that there may be limits on sealing pretrial proceedings. Justice William H. Rehnquist, however, said flatly that if the parties agree and judge does not have to set forth any reason for closing a pretrial or a trial proceeding.
Tribe predicted the requests for all kinds of closed hearings would continue "until and unless" the Supreme Court sets out some limits.
"I would be surprised if the (Supreme) Court were not distressed by how rapidly the willingness to shut down trials has manifested itself," Tribe said in a telephone interview.
The high court's option, Tribe said, would be to agree to consider another press case and then state that the Gannett case was "not as sweeping" as some courts apparently think "or confirm the worst fears."
Virginia's Howard characterized the Gannett case as an "inherently unstable opinion."
"If the trial courts tend to run away with it...then it might be the court would come back and take a second look" at the question, Howard said.
Jack C. Landau, executive director of the Reporters Committee, expressed concern both over the growing frequency of the closure requests, but also about the fact that prosecutors in most cases have gone along with the defense request.
In one case cited by the committee, in Oklahoma City, the motion to seal all pretrial proceedings because of possible prejudicial publicity was made by the U.S. Attorney in the case. The press and the defense lawyer in the case opposed the motion and it was denied by the court which noted that under the Gannett rule, only the defense could ask for a closed hearing.
In an effort to prepare its reporters for sudden courtroom announcements that a proceeding would be closed, the Associated Press recently distributed to its news staff a prepared statement to be read aloud to a judge in such instances, according to Louis D. Boccardi, AP's executive editor and vice-president.
The statement, which Boccardi described as "concise and legalistic," objects to any closed proceeding, sets forth the reasons why and asks for time for further argument before a decision is made by the court.