Benjamin Atkins is not a party to this case, and none of the women he was charged with killing is mentioned in it. In the fall of 1992, weeks after his arrest on August 21, a psychiatrist from the Recorder's Court Psychiatric Clinic in Detroit interviewed him for about two hours on two consecutive days to decide whether he could stand trial. On the strength of that report and an agreement between the prosecution and the defense, Judge Vesta Svenson of the 36th District Court found him competent to be tried "on all 3 matters" then before her.
The Detroit News and the Detroit Free Press wanted to read the report. The prosecutor, Atkins's lawyers and the clinic itself all opposed them, and the judge gave the papers an edited copy of several pages that kept the reason for the examination, some background on the charges and the psychiatrist's conclusions. The newspapers went up the ladder for the rest. The Recorder's Court refused them, and the Court of Appeals, after sending the case back for more findings, held in 1993 that there was no right of access to a competency report prepared at a defendant's own request. On March 29, 1994, the Michigan Supreme Court declined to hear the case in full but wrote this memorandum affirming that result, with one correction: it would not rely, as the lower court had, on the statute protecting what patients tell psychiatrists. Justices Charles Levin and Conrad Mallett dissented.
By then the trial was underway in Recorder's Court. A jury convicted Atkins of murdering eleven women in Highland Park and Detroit between December 1991 and August 1992, and in April 1994 he was sentenced to life terms. There was little physical evidence tying him to the killings, and the case rested largely on his own detailed confession and on the identification of ten of the women. He died on September 17, 1997, at twenty-nine, of an AIDS-related illness. The eleventh woman, found in the Monterey Motel in Highland Park, had no name for three decades; Highland Park police turned to forensic genetic genealogy in 2023, and her identification was announced in January 2024.
The report the newspapers wanted is not in this file and was never made public. What survives here is a fight about it, and the only glimpse of its contents is secondhand: a footnote describing the edited copy, and the dissent's quotation of the district judge saying she had read the whole thing. That quotation is also the only place in the file where anything is said about Atkins himself. Anyone looking for his account of the killings, or for the psychiatrist's view of him, will not find it in these pages.
Much of the majority opinion is not the Supreme Court's own writing. The long indented passage in the middle is the Court of Appeals opinion of 1993, quoted so the higher court could say which parts of it it approved. The paragraphs that come before the memorandum opinion begins, from the summary of the case's history down to the list of lawyers, are the reporter's headnote, written by the publisher's staff to help readers find the holding, not by any judge. The holding itself is narrow. It says that a competency report never formally put into evidence, in this case and on these facts, did not have to be released.
In the digitized edition the majority's four footnotes had lost their reference numbers and were run on as if they were the last paragraphs of the opinion. We have moved them, unchanged, under a heading of their own after the majority opinion, so that a reader does not take the sentence "The report was not marked as an exhibit or admitted into evidence" for the court's conclusion. The hyphen in "which-we grant" is a digitization flaw and has been left alone, as has the district judge's "it’s [sic]", which the court marked itself. Court opinions carry no copyright, and no name in this one has been shortened.
In re PEOPLE v ATKINS (THE DETROIT NEWS, INC and THE DETROIT FREE PRESS, INC v RECORDER’S COURT JUDGE)
Docket Nos. 98429, 98430.
Decided March 29, 1994.
On application by the plaintiffs, for leave to appeal, the Supreme Court, in lieu of granting leave, affirmed in part the judgment of the Court of Appeals. Rehearing denied 445 Mich 1203.
The Detroit News and the Detroit Free Press sought access in the 36th District Court to a psychiatrist’s written report declaring Benjamin Atkins competent to stand trial. The court, Vesta Svenson, J., denied the plaintiffs’ motion, but provided an edited copy of the report. The Detroit Recorder’s Court, David Kerwin, J., denied leave to appeal. The Court of Appeals, Doctoroff, P.J., and Cavanagh and Marilyn J. Kelly, JJ., ordered the case remanded to the Detroit Recorder’s Court for additional findings regarding its decision not to allow full disclosure (Docket Nos. 159314, 159315). The Detroit Recorder’s Court, David P. Kerwin, J., affirmed. After remand, the Court of Appeals, Reilly, P.J., and Michael J. Kelly and Connor, JJ., affirmed, finding that there is no right of access to a competency report prepared pursuant to a defendant’s request for a competency hearing (Docket Nos. 159314, 159315). The plaintiffs seek leave to appeal.
In a memorandum opinion, signed by Chief Justice Cavanagh, and Justices Brickley, Boyle, Riley, and Griffin, the Supreme Court held:
The Court of Appeals, in concluding that under the facts of the case there is no right of access to the competency report at issue, accurately noted that because competency reports traditionally have been viewed as confidential, public access would not play a significantly positive role in the determination of competency. However, its discussion of the statutory psychiatrist-patient privilege was unnecessary to the resolution of the appeal.
Affirmed in part.
Justice Levin, joined by Justice Mallett, dissenting, stated that because the competency report was the basis of the trial judge’s finding that the defendant was competent to stand trial, it should be deemed to have been admitted into evidence without regard to whether it was formally admitted.
202 Mich App 595; 509 NW2d 894 (1993) affirmed in part.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O’Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Don W. Atkins, Principal Attorney, Appeals, for the people.
Butzel, Long (by James E. Stewart, Leonard M. Niehoff, and Eugene H. Boyle, Jr.) for The Detroit News.
Honigman, Miller, Schwartz & Cohn (by Herschel P. Fink and Michael A. Gruskin) for the Detroit Free Press, Inc.
Memorandum Opinion. After preparation of a psychiatric evaluation, the defendant in this criminal case was found competent to stand trial. The decision was based upon the stipulation of the parties and upon a report from the Recorder’s Court Psychiatric Clinic.
The Detroit News and the Detroit Free Press sought access to the psychiatrist’s written report, but the motion was opposed by the prosecutor, the defendant, and the clinic. After a hearing, the district court denied the newspapers’ motion, but did provide them an edited copy of the report.
The newspapers applied for leave to appeal, seeking the full text of the psychiatrist’s report. The Recorder’s Court denied leave to appeal after a hearing at which it considered the merits of the dispute.
The Court of Appeals granted the newspapers’ applications for leave to appeal, and later affirmed. 202 Mich App 595; 509 NW2d 894 (1993).
The newspapers have now applied for leave to appeal to this Court.
In its opinion of affirmance, the Court of Appeals correctly analyzed this issue in light of the common law and controlling principles of federal law:
The United States Supreme Court has expressly recognized a "common-law right of access” to judicial records. Nixon v Warner Communications, Inc, 435 US 589, 599; 98 S Ct 1306; 55 L Ed 2d 570 (1978). However, the common-law right of access is not absolute and the decision to permit access is left to the discretion of the trial court. Id.; United States v Beckham, 789 F2d 401, 409 (CA 6, 1986). Some courts considering the issue have found that where a judicial record by tradition has been confidential, access is granted only upon a showing of important public need or to "serve the ends of justice.” Times Mirror Co v United States, 873 F2d 1210, 1219 (CA 9, 1989); United States v Corbitt, 879 F2d 224, 228 (CA 7, 1989).
In determining whether a qualified First Amendment right of access attaches to a criminal proceeding, the United States Supreme Court has emphasized two complementary considerations. Press-Enterprise Co v Superior Court, 478 US 1, [8]; 106 S Ct 2735; 92 L Ed 2d 1 (1986) (Press- Enterprise II). See also Booth Newspapers [Inc v 12th Dist Court Judge, 172 Mich App 688; 432 NW2d 400 (1988)]. The first is whether the place and process at issue have historically been open to the press and general public. Secondly, there is the consideration "whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, supra at 8; Booth Newspapers, supra. If both questions are answered in the affirmative, a qualified right of access applies to the proceeding, and that proceeding may not be closed unless specific findings are made that " 'closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ ” Press-Enterprise II, supra at 13-14, quoting Press-Enterprise Co v Superior Court, 464 US 501, 510; 104 S Ct 819; 78 L Ed 2d 629 (1984) (Press-Enterprise I).
Several courts have recognized that the qualified First Amendment right of access may also extend to certain documents submitted in connection with judicial proceedings. Corbitt, supra; Globe Newspaper Co v Pokaski, 868 F2d 497 (CA 1, 1989); In re New York Times Co, 828 F2d 110 (CA 2, 1987); United States v Smith, 776 F2d 1104 (CA 3, 1985); Baltimore Sun v Thanos, 92 Md App 227; 607 A2d 565 (1992). We believe that the test enunciated in Press-Enterprise II is the proper test to apply in determining whether a qualified First Amendment right of access extends to a particular judicial document submitted in conjunction with a pretrial hearing. However, the right of access to a document submitted for use in a hearing should be considered separately from the right to attend the hearing itself. Corbitt, supra at 228-229; Thanos, supra at 234, n 4. We conclude that, under the facts and circumstances of this case, there is no right of access to the competency report prepared pursuant to defendant’s request for a competency hearing. [202 Mich App 600-601.]
Applying these principles, the Court of Appeals accurately recounted that competency reports that have not been admitted into evidence have traditionally been viewed as confidential in Michigan, and that public access would not "play[ ] a significant positive role in the functioning of the particular process in question.” However, the Court of Appeals attempted to bolster its analysis with a discussion of the psychiatrist-patient privilege stated in MCL 330.1750; MSA 14.800(750).
The discussion of the statutory psychiatrist-patient privilege was unnecessary to the resolution of this appeal. While we approve the remaining portion of the Court of Appeals analysis, the statutory privilege is not a basis for our affirmance.
For the reasons stated in this opinion, we affirm the judgment of the Court of Appeals. MCR 7.302(F)(1).
Cavanagh, C.J., and Brickley, Boyle, Riley, and Griffin, JJ., concurred.
NOTES TO THE MAJORITY OPINION
The report was not marked as an exhibit or admitted into evidence.
The edited copy was several pages long. It briefly explained why the examination was being conducted, and it included background information concerning the pending criminal charges. The copy also included the psychiatrist’s conclusions regarding the issue of competency to stand trial.
In the order granting leave, the Court of Appeals also ordered the Recorder’s Court to make additional findings regarding its decision not to allow full disclosure. Unpublished order of the Court of Appeals, entered January 7, 1993 (Docket Nos. 159314, 159315). Those findings were made before the Court of Appeals issued its decision in this matter.
They have also filed motions for immediate consideration, which-we grant.
[OPINION BY Levin, J. type=dissent]
Levin, J.
(dissenting). The majority’s statement that the "Court of Appeals accurately recounted that competency reports that have not been admitted into evidence have traditionally been viewed as confidential in Michigan, and that public access would not 'play[ ] a significant positive role in the functioning of the particular process in question,’ ” ante, pp 740-741 (emphasis added), ignores the following statement by the district judge who was sitting as trier of fact:
I have looked at [the competency report] in it’s [sic] entirety. Dr. Rosen [a Recorder’s Court Clinic’s psychiatrist] indicated that he interviewed Mr. Atkins for approximately 2 hours on September 9th and 10th of this year.... Based on this report, which I have examined in full, and the stipulations between the parties, I do find Benjamin Thomas Atkins, competent to stand trial on all 3 matters. [Emphasis added.]
Since the competency report was the basis of the judge’s decision finding the defendant competent to stand trial, it should be deemed to have been admitted in evidence without regard to whether it was formally admitted in evidence.
I would grant leave to appeal.
Mallett, J., concurred with Levin, J.