         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE        FILED
                   SPECIAL DECEMBER 1998 SESSION
                                               January 29, 1999
STATE OF TENNESSEE,                 )
                                                   Cecil Crowson, Jr.
                                    )               Appellate C ourt Clerk
vs.                                 )    CCA No. 03C01-9811-CR-00410
                                    )
THOMAS DEE HUSKEY,                  )    Knox County
    Appellee/Cross Appellant,       )
                                    )    Hon. Richard Baumgartner, Judge
vs.                                 )
                                    )    (Prior Restraint of Media)
THE KNOXVILLE NEWS-SENTINEL,        )
     Appellant/Cross Appellee.      )

FOR THE APPELLANT:                       FOR THE APPELLEE:
RICHARD L. HOLLOW                        HERBERT S. MONCIER
NATHAN D. ROWELL                         Attorney at Law
Attorneys at Law                         Suite 775 NationsBank Center
P.O. Box 131                             550 Main Ave.
Knoxville, TN 37901-0131                 Knoxville, TN 37902

                                         GREGORY P. ISAACS
                                         Attorney at Law
                                         One Centre Square
                                         620 Market St., Ste. 280
                                         Knoxville, TN 37902
FOR AMICUS CURIAE:
The Tennessean, The Tennessee
Press Association, The Society of
Professional Journalists and
The Middle Tennessee Chapter of
The Society for Professional
Journalists
ALFRED H. KNIGHT
Attorney at Law
215 Second Ave., North
Nashville, TN 37201

Memphis Publishing Company
LUCIAN T. PERA
KATHY LAUGHTER LAIZURE
KIMBERLY D. BROWN
Attorneys at Law
80 Monroe Ave., Ste. 700
Memphis, TN 38103-2467

OPINION FILED:________________

APPEALS DISMISSED

JAMES CURWOOD WITT, JR., JUDGE
                           OPINION
              In this novel case, we are called upon to consider the competing

interests of a media entity's rights under the First Amendment of the United States

Constitution1 and article I, section 19 of the Tennessee Constitution against a

criminal defendant's due process rights to a fair trial under the Sixth Amendment of

the federal constitution2 and article I, section 9 of the state constitution. This case

comes to us from the Knox County Criminal Court, which issued an order restraining

The Knoxville News-Sentinel ("Sentinel") from publishing detailed records of court-

appointed defense counsel's fees, experts and other expenses while the case of

State v. Thomas Dee Huskey, a four-count capital prosecution, is pending. We

granted Sentinel's application for permission to appeal and Huskey's application for

cross appeal pursuant to Rule 10, Tennessee Rules of Appellate Procedure. The

primary issue is whether the lower court's injunction is impermissible under the state

and federal constitutions. In a cross-appeal, Huskey has raised several non-

constitutional issues regarding the propriety of the injunction. Having heard and

considered the oral arguments of counsel for Sentinel and Huskey and having

reviewed the record which was filed on the day of argument, as supplemented, we

dismiss as improvidently granted the Rule 10 appeals of both parties.




       1
        "[T]he liberty of the press and of speech, is within the liberty safeguarded
by the due process clause of the Fourteenth Amendment from invasion by state
action." Nebraska Press Ass'n v. Stewart, 427 U.S. 539, 557, 96 S. Ct. 2791,
2801 (1976) (quoting Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.
Ct. 625, 628 (1931)).
       2
        The Sixth Amendment guarantees defendants in federal criminal
prosecutions "trial, by an impartial jury . . . ." The due process clause of the
Fourteenth Amendment extends the right to jury trial for non-petty offenses to
state criminal prosecutions. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.
1444 (1968).

                                          2
                         I. Facts and Procedural History

              We begin with a recitation of the facts pertinent to this appeal. 3

Thomas Dee Huskey stands accused of four counts of capital murder. At the

present time, he is on trial in the Knox County Criminal Court for his alleged crimes.

The legal proceedings leading up to the trial have spanned several years and have

received considerable media attention.



              Huskey is indigent. Throughout these proceedings, he has been

represented by two court-appointed attorneys, Herbert Moncier and Gregory Isaacs.

Moncier and Isaacs have submitted documentation to the trial court and the

Administrative Office of the Courts ("AOC") seeking payment from the state for their

services and the services of experts. In earlier litigation, Sentinel sought to discover

the amount of public funds expended for the defense of Huskey as reflected in

counsel's detailed time records, which were ordered held under seal. The trial court

and this court allowed Sentinel access to summaries of defense counsel's time

records but denied it access to the detailed records. Knoxville News Sentinel v.

Thomas Dee Huskey, No. 03C01-9708-CR-00331 (Tenn. Crim. App., Knoxville,

Feb. 24, 1998), perm. app. denied (Tenn. 1998) ("Huskey I").



              Despite the outcome of the earlier proceeding, Sentinel obtained from

an undisclosed source copies of detailed time sheets of Attorneys Moncier and

Isaacs for the years 1992 through 1995. John North, a reporter for Sentinel,

claimed in deposition testimony that he received these records in approximately




       3
        In setting forth the facts, this court has relied largely on the trial court's
summary of events as recited in the transcript of the October 28, 1998 hearing.
As pertinent to our factual summary, the trial court's recitation was undisputed by
the parties.

                                           3
May 1998.4 He understood the origin of the records to be the Knox County Criminal

Court Clerk's office.5



              On October 1, 1998, counsel for Sentinel withdrew the record of the

previous appeal from the archives of this court. Later that same day, according to

the North deposition, Sentinel's attorneys and North discovered that the documents

provided by the clerk of the appellate courts included detailed time records of

defense counsel and other information pertaining to authorizations for expert

services which were more extensive than the information which North had already

received from his undisclosed source.        North believed this information was

"accidentally" provided, and the documents were returned to the court.6



              On Thursday, October 22, 1998, North notified Moncier that he had

the detailed time sheets from the undisclosed source. North advised Moncier that

       4
     North's deposition was offered as an exhibit at the October 28, 1998 and
November 4, 1998 hearings.
       5
        In an affidavit contained in the appellate record, the Chief Deputy Clerk of
the Knox County Criminal Court Clerk's office asserts that Moncier's records
have always been under lock and key and "that Mr. Moncier's records were
never copied and released by this office to anyone except the Administrative
Office of the Courts in Nashville." The affiant concedes that for a time, Isaacs'
records were in the public file, although they were later placed under lock and
key. Further, the affiant claims that the records represented to her to be the
ones from North's source were reduced in size, which is contrary to the
procedure for copying documents in that office.
       6
         Frankie Lewis, Clerk of the Tennessee Appellate Courts, declared in an
affidavit that the documents "accidentally" provided to counsel for Sentinel were
not a part of the appellate record. Rather, they had been delivered to her with a
September 9, 1997 letter from the trial judge identifying the records as "copies of
the motions, orders and fee petitions which have been filed with [the trial court]
by the attorneys for Thomas Dee Huskey and placed under seal in the trial
court." The letter requested that Lewis provide the records "to the Appellate
Judges assigned to this appeal for their consideration." Lewis did not place the
letter or documents in the appellate record; rather, she retained them in a locked
file cabinet in her office until an appellate court judge assigned to the panel
which considered the case requested them. After the panel made its decision,
the documents and the appellate record were returned to the clerk's office
together in one box, and this box was provided to Sentinel's counsel when it
withdrew the appellate record.

                                         4
Sentinel intended to publish an article about the information on October 25, 1998

and inquired whether Moncier would comment.



              Moncier and Isaacs filed an application for temporary restraining order

and injunction against Sentinel on Friday, October 23, 1998.           They sought

prohibition of publication of any information in the detailed time records and return

of all copies of the time records in Sentinel's possession. The trial court entered a

temporary restraining order prohibiting publication of information contained in the

records. Based upon the belief the order was invalid on its face, Sentinel defied the

trial court's order on Sunday, October 25, 1998 by publishing an article which

utilized some of the information from the records.



              On October 26, 1998, Sentinel moved to dissolve the temporary

restraining order and to dismiss all proceedings challenging publication of the

information obtained by Sentinel.



              Thereafter, on October 28, 1998 and November 4, 1998, the trial court

conducted hearings on Sentinel's motion to dissolve the temporary restraining order

and on Huskey's motion to convert the temporary restraining order to a temporary

injunction. After receiving evidence and hearing the arguments of counsel for

Sentinel and Huskey, the trial court entered an order on November 4, 1998

enjoining Sentinel "from the publication or dissemination in any manner of any

information contained in the detailed time records and/or from any other sealed

documents which it gained access to through the review of the appellate court

record." The order further required Sentinel to turn over all copies of "the sealed

records" in its possession to Attorney Hollow for confidential safekeeping "until the

conclusion of this case."




                                         5
                 After we granted Sentinel's application for extraordinary appeal on

December 16, 1998, we received an application from Huskey which challenged the

injunction in four respects. The issues raised in Huskey's application are (1)

whether the detailed time records are protected by attorney/client privilege, the work

product doctrine, Rules of the Tennessee Supreme Court, or the Tennessee Rules

of Criminal Procedure, (2) whether the trial court had original jurisdiction to hear

evidence and make rulings with respect to the appellate court clerk's release of the

detailed time records, (3) whether the trial court erred in denying Huskey's request

for an injunction requiring Sentinel to return the detailed time records to Huskey's

attorneys, and (4) whether the trial court erred in designating Hollow as custodian

of the detailed time records in Sentinel's possession. Because these issues were

closely intertwined with Sentinel's appellate issue, we granted Huskey's application.



                 This case presented a very unique situation in that the normal time

frame for consideration of Sentinel's appeal would result in it losing a right it would

not be able to recover in the event Sentinel's appeal was meritorious. Accordingly,

we departed from the usual practice of receiving briefs and heard oral arguments

on December 31, 1998.



                                  II. Record on Appeal

                 Due to the expedited nature of this appeal, assembly of the record on

appeal has been somewhat anomalous. The record before this court includes:

       (1)       pleadings filed and order of the trial court relative to Sentinel's
                 1997 attempt to obtain access to sealed documents,
       (2)       pleadings filed and orders dated October 23, 1998
                 through November 4, 1998,7
       (3)       transcripts and exhibits from the hearings on the
                 temporary injunction from October 28, 1998 and




       7
           These filings include the affidavit of Frankie Lewis.

                                              6
              November 4, 1998,8
       (4)    pleadings filed in the trial court after the temporary injunction
              was entered on November 4, 1998,
       (5)    transcripts of the hearings on a motion to dismiss on
              December 1, 1998 and December 3, 1998,
       (6)    motions, affidavits, order, and other pleadings filed in
              1996 relative to entomological evidence and discovery,
       (7)    sentencing memoranda filed in 1995 and 1996, and
       (8)    motions filed in 1996 relative to the disclosure of
              information about the defendant's mental health records
              and statement during mental health evaluation.


              Obviously, our review of the record is guided by our determination of

which portions of the record are relevant to the issues presented. Because the

heart of this case is the propriety of the temporary injunction, the pleadings and

orders filed from October 23, 1998 through November 4, 1998, as well as the

transcripts and exhibits from the hearings on October 28, 1998 and November 4,

1998 are of paramount importance. The earlier filings and orders of the trial court

are relevant to establish the background leading up to the present appeal. At the

October 28, 1998 hearing, the trial court took judicial notice of the prior proceedings

in the case; however, our knowledge of prior proceedings is limited to the filings

actually preserved in the appellate record.



              On the other hand, we deem anything filed after the trial court entered

the temporary injunction on November 4, 1998 not relevant to this appeal. See

Nebraska Press Ass'n v. Stewart, 427 U.S. 539, 562, 96 S. Ct. 2791, 2804 (1976)

(appellate court must "examine the evidence before the trial judge when the order

was entered" to determine propriety of prior restraint). Accordingly, we have not

considered the parties' filings after entry of the order on November 4, 1998 and the



       8
        The exhibits received at these hearings that were initially filed with this
court are (1) pages 1 through 31 of North's deposition, (2) Section A of the
October 25, 1998 Knoxville News Sentinel, and (3) copies of Sentinel's Motion to
Withdraw Records from the Archives of the Court and Presiding Judge Gary
Wade's Order allowing the withdrawal. As discussed below, the court later
received pages 32 through 45 of North's deposition under seal.

                                          7
transcripts of the December 1 and 3, 1998 hearings.



              Notably, the record on appeal, which has been designated by the

parties pursuant to Tennessee Rule of Appellate Procedure 24(a), does not include

the detailed time sheets which Sentinel obtained from North's source and which

were the basis for the October 25, 1998 article it published.



              Following oral argument, the court determined that the deposition of

John North had been filed as an evidentiary exhibit to the October 28, 1998 and

November 4, 1998 hearings. The deposition was filed in two parts -- pages 1

through 31 were filed as exhibit 1, and the remainder of the deposition was filed as

exhibit 5. Exhibit 5 was placed under seal by the trial court. Moreover, exhibit 5

was not transmitted by the trial court clerk with the appellate record. On review of

the first 31 pages of the North deposition, it was apparent that the detailed time

records North received from the source were made an exhibit to the deposition. We

determined that the remainder of the deposition and the documentary exhibit to the

deposition were necessary in order to "convey a fair, accurate and complete

account of what transpired" in the trial court. See Tenn. R. App. P. 24(a). As such,

we entered an order compelling the trial court clerk to transmit exhibit 5 to the

appellate court clerk. The trial court clerk promptly complied by providing us with

exhibit 5 and the trial court's order sealing that exhibit. Upon review of exhibit 5, we

discovered that the detailed time records, although an exhibit to the North

deposition, were not contained therein. On review of the trial court's order sealing

exhibit 5, it became apparent that the trial court had not received the detailed time

records as part of the filed deposition as we originally inferred from the record.9 See


       9
       The transcript of the November 4, 1998 hearing reflects that the trial court
ordered "the balance of it [the North deposition]" would be filed under seal.
However, the written order reflects that pages 32 through 45 of the North
deposition are sealed. There is no mention of any exhibits to the deposition.

                                           8
Tenn. R. App. P. 24(a) (unless designated by a party, depositions and other

discovery materials are not included in record on appeal).



              We declined to order any further supplementation. Although the trial

court has recited that it is familiar with Huskey's lawyers' time sheets and although

the record in the trial court may contain some, if not all, of such time sheets, the

time sheets at issue in this case are the time sheets North received in May 1998.

North's deposition reflects that both parties had copies of the time sheets, which

they agreed to keep in their possession rather than surrendering them to the court

reporter to be maintained with the deposition transcript, despite Huskey's counsel

identifying them at the deposition as "exhibit number 1" to the deposition.10 In light

of the parties' deliberate abridgement of the record and this court's unfulfilled

attempt to supplement the record, we declined to initiate further steps to construct

a record that we would consider to be "fair, accurate and complete." Tenn. R. App.

P. 24(a).11


       10
         In North's deposition, the documents from the undisclosed source are
designated as an exhibit to the deponent's testimony, but counsel for Huskey
proposed, "[L]et's all agree that we are going to keep the exhibits in our private
possession. I don't mean to make . . . them part of the public record any more
than they have already been made." Counsel for Sentinel agreed. While we
understand Huskey's counsel's concern for keeping the records private, we do
not understand why there was no request that the deposition exhibit be received
by the trial court under seal along with pages 32 through 45 of the deposition
transcript.
       11
         Indeed without one of the parties filing the detailed time sheets in the
trial court as an exhibit to North’s deposition, there appears little else we can do
to create a record complete enough to allow our consideration of this appeal on
the merits. This Court cannot, pursuant to Tenn. R. App. P. 24(e), order
supplementation of the appellate record with material that is not otherwise
properly includable in the record.

      Neither party filed the detailed time sheets in this appeal of the corollary
proceeding to the criminal prosecution. In addition the time sheets do not
appear to be part of the record in the criminal prosecution itself. Once these
documents are sent to the Administrative Office of the Courts the trial court clerk
has no control over them. (See Affidavit of Chief Deputy Clerk of the Knox Co.
Criminal Court). These detailed time sheets are confidential administrative
records of the court system’s indigent defense payment system rather than

                                          9
                                III. Prior Restraint

              This case involves two of the rights our state and federal constitutional

framers held in highest regard -- freedom of the press and the right of an accused

to a fair trial. On the one hand, freedom of the press is guaranteed by the First

Amendment to the United States Constitution and article I, section 19 of the

Tennessee Constitution. On the other hand, a criminal defendant's right to a fair

trial is guaranteed by the federal Sixth Amendment and article I, section 9 of our

state constitution.



              The framers of the federal and state constitutions did not establish a

hierarchy for the enforcement of the rights of the press and rights of the criminal

defendant in the case of competing interests. When the United States Supreme

Court has been presented with the opportunity to consider these two rights in

competition with one another, it has specifically declined to impose a per se rule of

priority. See Nebraska Press, 427 U.S. at 561, 96 S. Ct. at 2804.



              That said, the United States Supreme Court has recognized that the

First Amendment freedom is fundamental to our society. New York Times v.

Sullivan, 376 U.S. 254, 269, 84 S. Ct. 710, 720 (1964). Moreover, the court has

recognized the main purpose of the First Amendment to be prevention of prior

restraints on publications. Patterson v. Colorado ex rel. Att'y General, 205 U.S. 454,

462, 27 S. Ct. 556, 558 (1907) (citation omitted). The court has characterized so-

called "prior restraints" as "the most serious and the least tolerable infringement on

First Amendment Rights." Nebraska Press, 427 U.S. at 559, 96 S. Ct. at 2803. The

Tennessee Supreme Court has said that article I, section 19 of the state constitution

affords protection which is "at least as broad" as the First Amendment. Leech v.


substantative records in the criminal case. Indeed, in Huskey the trial judge had
to request return of detailed time sheets from A.O.C.

                                         10
American Booksellers, 582 S.W.2d 738 (Tenn. 1979).



              The other side of the coin is that the United States Supreme Court has

opined that the right of a defendant to a fair trial is "the most fundamental of all

freedoms -- [which] must be maintained at all costs." Estes v. Texas, 381 U.S. 532,

540 85 S. Ct. 1628, 1632 (1965); see also Press-Enterprise Co. v. Superior Court,

464 U.S. 501, 508, 104 S. Ct. 819, 823 (1984) ("No right ranks higher than the right

of an accused to a fair trial."); Shepherd v. Florida, 341 U.S. 50, 53, 71 S. Ct. 549,

550 (1951) (concurring opinion of Jackson and Frankfurter, JJ.) ("Newspapers, in

the enjoyment of their constitutional rights, may not deprive accused persons of

their right to fair trial."). Further, in the context of a capital prosecution, the high

court has said that a defendant facing the prospect of the ultimate penalty of death

is entitled to heightened due process protection. Woodson v. North Carolina, 428

U.S. 280, 305, 96 S. Ct. 2978, 2991 (1976). In the present case, Huskey argues

that the detailed time sheets contain defense secrets which otherwise would not be

discoverable under Tennessee Rule of Criminal Procedure 16(b).



              The United States Supreme Court has said that where the Sixth

Amendment rights of an individual accused of a crime are in conflict with the First

Amendment rights of a media entity, the court must consider "(a) the nature and

extent of pretrial news coverage; (b) whether other measures would be likely to

mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a

restraining order would operate to prevent the threatened danger." Nebraska Press,

427 U.S. at 562, 96 S. Ct. at 2804. The precise terms of the restraining order bear

careful consideration, as does the extent to which the record supports the imposition

of the extraordinary entry of a prior restraint on publication. Nebraska Press, 427

U.S. at 562, 96 S. Ct. at 2804.



                                          11
              In Huskey I, this court recognized the right of Sentinel to have access

to and to publish information from the summary pages of the time sheets. At the

present juncture, we feel compelled to express our concern for the rights and

abilities of this and other indigent criminal defendants to be represented by counsel

and to receive compensation for the individuals who provide them with legal and

other expert services without nondiscoverable information being made public via the

First Amendment. In support of its order in Huskey I, the trial court found that the

forms approved by AOC for use by counsel in submitting claims for fees and

expenses required detailed and specific information. See Tenn. R. Sup. Ct. 13, §

6(a). The court noted that the AOC’s forms required counsel to set forth “the nature

of the work that is performed, the individuals that are interviewed and consulted, the

investigative and research efforts that have been made, along with the dates these

services were rendered and the amount of time spent on each activity.” (Emphasis

added.) The trial court also referred to the information defense counsel must submit

in order to obtain the trial court’s authorization for payment for expert services.

See Tenn. R. Sup. Ct. 13, § 5(b).         The trial court in Huskey I found that

“unrestrained public access to such information before trial could be an

unacceptable invasion of a defendant’s constitutional right to a fair and impartial

trial.” We agree that the disclosure of information that could be contained in

defense counsel’s application for fees, expenses and authorizations could

impermissibly impair a defendant’s right to a fair trial. Moreover, we are concerned

that the procedure mandated in Supreme Court Rule 13 for claiming and approving

compensation and fees in cases of indigency may imperil the right to a fair trial only

for indigent defendants.



              Rule of Criminal Procedure 16(b) provides for the disclosure of certain

defense information to the prosecution, including, under the proper preliminary

circumstances, “any results or reports of physical or mental examinations and of

                                         12
scientific tests or experiments,” but only when “the defendant intends to introduce

[them] as evidence in chief at trial or which were prepared by a witness whom the

defendant intends to call at the trial when the results or reports relate to the witness’

testimony.” Tenn. R. Crim. App. 16(b)(1)(B). A request for authorization for expert

services under Supreme Court Rule 13, section 5 might include services which are

not intended to result in trial evidence or testimony, such as in the case of a mere

consultation. A consultation or investigative-type conversation might also be

divulged on an attorney fee claim form through the itemization of the time spent by

counsel. Evidence of such consultations, even though it may not be discoverable

under Rule of Criminal Procedure 16, might be nevertheless “discovered” through

publication that is based upon the assertion of First Amendment rights. To the

extent that Rule 13 creates the procedure by which this disclosure or “discovery”

could occur, it is a risk visited only upon indigent defendants.



              Our concern about this issue is not squarely addressed by Sentinel.

In Nebraska Press and in other cases cited by Sentinel, the court was faced with the

challenge of rampant pretrial publicity that might influence potential jurors. See,

e.g., Hunt v. NBC, 872 F.2d 289 (9th Cir. 1989); Joseph Lyle Menendez v. Fox

Broad. Co., 22 Media L. Rep. (BNA) 1702, No. 94 2339 R (C.D. Cal. Apr. 19, 1994).

In Nebraska Press, the Supreme Court indicated that there are various alternatives

for dealing with pretrial publicity and that prior restraint is essentially a last resort.

In the present case, however, the public impact of pretrial publicity does not appear

to be the primary evil. Rather, this case presents a different concern--that of

prejudice to the dynamics of the defense via the prosecution gaining otherwise

nondiscoverable information. In this situation, less restrictive alternatives--other

than sealing the records involved--are not as apparent. See State Record Co. v.

South Carolina, 322 S.C. 346, ---, 504 S.E.2d 592, 597-95 (S.C. 1997) (prior

restraint of publication of surreptitiously recorded conversation between capital

                                           13
defendant and his attorney upheld, based not only upon the threat of pretrial

publicity to defendant's right to a fair trial, but also upon jeopardy to defendant’s

right to effective assistance of counsel) (Toal, J., concurring and dissenting), pet.

for cert. filed (U.S. Dec. 23, 1998). Accordingly, we anticipated a heightened

vigilance for the indigent criminal defendant’s rights in the case before us, provided

the peril to those rights is readily apparent from the proof of record.



              Obviously, any analysis of the constitutional rights of Huskey as

juxtaposed to the constitutional rights of Sentinel must include an understanding of

the precise nature and extent of the threat to Huskey’s rights. In this case, the

nature and extent of this threat can only be determined upon an examination of the

detailed time sheets--the very materials that Sentinel has been restrained from

publishing and which serve as the basis for Huskey’s claims of risk. Nevertheless,

we are amazed to find that the record on appeal, even as supplemented by this

court’s order, contains no detailed time sheets nor any portion of such documents.

Despite Huskey’s protestations, which may be well-founded, we do not know what

the detailed time sheets contain. Consequently, we are unable to review the

constitutionality of the prior restraint on its merits. Neither are we able to review the

merits of Huskey's appellate issues.



              To illustrate the futility of any attempt to resolve this case, we point out

that we could not determine any precise contours for an injunction, were we to

conclude that a narrowly drawn restraint was justified. The lack of the pertinent

detailed time records denies this court any basis for a surgical order that might

serve to protect the worthy constitutional interests of both parties. Without the

specific records, any such order would have to be generalized, such as to ban the

publication of any information that would not be discoverable by the state under

Rule of Criminal Procedure 16(b). Obviously, such an order would be unsatisfactory

                                          14
and would invite subsequent, if not successive, rounds of litigation prompted by

disagreements as to whether specific data fall within the scope of Rule 16(B).



                                  IV. Conclusion

              When we granted the parties' applications for Rule 10 extraordinary

appellate review, we anticipated being called upon to address vital constitutional

issues based upon a review of the actual detailed time records which Sentinel is

prohibited from publishing and which form the basis for Huskey's claims that a fair

criminal trial is jeopardized. These records are not only central to the case, they are

the case. Yet, upon reviewing the appellate record as constituted by the parties via

Rule of Appellate Procedure 24(a), substantial portions of which were filed on the

day of oral argument before this court, we find the necessary time records are

absent. During oral argument, we implored the parties to give careful attention to

the record, and we asked that immediately after argument counsel take the

opportunity to examine the transcript and transcript exhibits filed that morning. We

made an attempt to have the record supplemented in a way that we anticipated

would bring the necessary records from North's source into the record through the

trial court record. We were frustrated in this attempt.



              We are unable to adjudicate important constitutional rights which are

determined by the contents of documents which are not before us. 12 See Nebraska


       12
        In New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140
(1971) ("The Pentagon Papers Cases"), the government sought a prior restraint
against media entities which had obtained sensitive documents related to the
Viet Nam War. The Supreme Court had the documents before it and reviewed
them prior to making its ruling. See, e.g., New York Times, 403 U.S. at 722-23,
n.3, 91 S. Ct. at 2145-46, n.3 (concurring opinion of Douglas and Black, JJ.) ("I
have gone over the material listed in the in camera brief of the United States.");
New York Times, 403 U.S. at 731, 91 S. Ct. at 2150 (concurring opinion of White
and Stewart, JJ.) ("[A]fter examining the materials the Government characterizes
as the most sensitive and destructive . . . ."). Just as the Supreme Court was
afforded the opportunity to review the documents over which prior restraint was
sought in The Pentagon Papers Cases, we must have the same opportunity

                                          15
Press, 427 U.S. at 562, 96 S. Ct. at 2804 (careful consideration should be given to

extent to which record supports the extraordinary imposition of a prior restraint on

publication). Accordingly, we conclude that the Rule 10 appeals of both parties

were improvidently granted, and the same are hereby dismissed. See Diana

Walker Lynch v. Charles Drew Lynch, No. 02A01-9405-CV-00126 (Tenn. Ct. App.,

Western Section, Dec. 14, 1995) (opinion and order).




                                         ________________________________
                                         JAMES CURWOOD WITT, JR., JUDGE



_______________________________
JERRY L. SMITH, JUDGE


_______________________________
NORMA McGEE OGLE, JUDGE




before we are able to consider whether First Amendment rights may be curtailed
in the name of protecting a competing vital interest. In the absence of the
documents, we are unable to adjudicate the issues presented in the parties' Rule
10 appeals.

                                        16
