United States v. Antar , 38 F.3d 1348 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
10-25-1994
USA v. Antar
Precedential or Non-Precedential:
Docket 93-5732
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Recommended Citation
"USA v. Antar" (1994). 1994 Decisions. Paper 165.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 93-5732; 93-5733; 94-5006
UNITED STATES OF AMERICA
v.
EDDIE ANTAR
(Newark New Jersey District Criminal No. 92-cr-00347-1)
MITCHELL ANTAR
(Newark New Jersey District Criminal No. 92-cr-00347-2)
ALLEN ANTAR
(Newark New Jersey District Criminal No. 92-cr-00347-3)
EDDIE GINDI
(Newark New Jersey District Criminal No. 92-cr-00347-4)
Newark Morning Ledger Co.,
publisher of The Star-Ledger
Appellant in 93-5732
Associated Press,
Appellant in 93-5733
New Jersey Press Association,*
*(Intervenor in D.C.)
Appellant in 94-5006
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Criminal Action Nos. 92-cr-00347-1; -2; -3; -4)
Argued: March 24, 1994
Before: HUTCHINSON, ROTH and ROSENN, Circuit Judges
(Opinion Filed October 25, 1994)
Michael Chertoff (Argued)
United States Attorney
Jayne K. Blumberg
Marc N. Garber
Eric L. Muller
Edna B. Axelrod
Assistant United States Attorneys
Office of United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102
Attorneys for Appellee
Gerald Krovatin, Esquire
Lowenstein, Sandler, Kohl, Fisher & Boylan
65 Livingston Avenue
Roseland, NJ 07068
Attorney for Allen Antar
Donald A. Robinson, Esquire (Argued)
Steven L. Lapidus, Esquire
Keith J. Miller, Esquire
Robinson, St. John & Wayne
Two Penn Plaza East
Newark, NJ 07105
Attorneys for Newark Morning Ledger Co.
Thomas J. Cafferty, Esquire (Argued)
Arlene M. Turinchak Esquire
McGimpsey & Cafferty
285 Davidson Avenue
Somerset, NJ 08873
Attorneys for New Jersey Press Association
Richard N. Winfield, Esquire
David A. Shulz, Esquire (Argued)
Thomas J. Lilly Esquire
Rogers & Wells
200 Park Avenue
New York, NY 10166
Richard P. O'Leary, Esquire
McCarter & English
Four Gateway Center, 100 Mulberry Street
P. O. Box 652
Newark, NJ 07101-0652
Attorneys for The Associated Press
OPINION OF THE COURT
ROTH, Circuit Judge:
We are confronted in this case with a tension between
two issues of critical constitutional concern: the need to
protect the confidentiality of jurors' deliberations while, at
the same time, guaranteeing the right of the press and the public
to have access to court proceedings. We conclude that under the
circumstances presented here, the district court improperly
sealed the transcript of the jury voir dire and then upon
unsealing it, placed certain improper restrictions on the use of
the juror-identifying information. We will, therefore, reverse
the order of the district court sealing the record, and we will
reverse in part and affirm in part the restrictions imposed by
the district court on the conduct of juror interviews.
This appeal arises from several high-profile criminal
prosecutions for securities fraud, RICO conspiracy, mail fraud,
and related charges. Appellants, the Associated Press, the New
Jersey Press Association, and the Newark Morning Ledger Company
(collectively, "the press"), challenge the actions of the
district court first in sealing the transcript of the jury voir
dire at the end of the trial and, later, in releasing the
transcript with restrictions placed upon its use. The
restrictions apply to anyone coming into possession of juror-
identifying information from the transcript; they circumscribe
the substance and extent of any questioning of the former Antar
jurors.
We find that the sealing of the transcript was
accomplished prematurely. It was done without adequate notice,
without a hearing, and without factual findings being placed on
the record. We further find that the restrictions imposed on the
use of juror information at the time of the unsealing were not
supported by an actual or potential threat either of juror
harassment or of invasion of the deliberative process as it was
taking place.
We do not minimize the importance of confidential jury
deliberations or of the need to protect former jurors from
harassment. Nor do we intend to suggest that the restrictions
which we find to have been improperly imposed here may not be
permissible in some future case. In order to restrict the right
of access, however, a court must carefully articulate specific
and tangible, rather than vague and indeterminate, threats to the
values which the court finds override the right of access.
There are, of course, instances when the jurors'
identities should be concealed in order to protect against
tampering or coercion or threats. See, e.g., In re Globe
Newspaper Co., 920 F.2d 88, 97 (1st Cir. 1990). Moreover,
harassment of jurors by the press after the completion of a trial
may adversely affect the willingness of citizens to freely
participate in the jury system. This court has not yet, however,
faced the question of restricting access to court proceedings or
to transcripts of those proceedings in order to protect the
jurors' from post-trial contact with the press.
Under the circumstances presented in this case, we
conclude that the precedent of Press Enterprise Co. v. Superior
Court of California, 464 U.S. 501, 104 S. Ct. 819 (1984) ("Press-
Enterprise I"), is directly controlling. We hold, therefore,
that the presumptive right of access applied to the voir dire
proceedings as they were recorded in the trial transcript.1
Applying the requirement that detailed findings of the need for
restrictions be made before any restriction is imposed, we find
that the court's initial order, sealing the transcript, violated
procedural and substantive aspects of the press's right of access
to the voir dire transcript.2 The subsequent release of the
1
. The parties agree that there was a contemporaneous right of
access to the courtroom at the time of the jury voir dire.
2
. To the extent that Judge Rosenn in his thoughtful concurring
opinion differentiates "specific" from "detailed", we are not
persuaded that the difference is significant. Our conclusions,
as are his, and the discussion that follows from our conclusions
are based on the precedent of Press-Enterprises I and its
transcript was not a cure for this violation of access.
Moreover, certain of the restrictions placed upon the use of the
information in the transcript, contained in the court's second
order unsealing the transcript, were too broad in view of the
lack of any specific recorded findings of actual or imminent
threat of juror harassment.
I.
A. The Trial and the Sealing of the Transcript
The six week trial in this criminal action began on
June 1, 1993. The defendants, founders of a well-known consumer
electronics chain, Crazy Eddie's, were accused of various corrupt
business practices, including a scheme of securities fraud.
Because of pre-trial publicity, the district court
requested a large pool of potential jurors. As a result, on the
first day of trial, there were not enough seats in the courtroom.
Before starting the voir dire examination of the potential
jurors, the court asked that members of the press leave the
courtroom in order to free up additional seats. This appears to
have been a request rather than an order. The press voluntarily
complied. The voir dire continued for two additional days.
(..continued)
progeny, including United States v. Raffoul, 826 F.2d 218 (3d
Cir. 1987) and United States v. Simone, 14 F.3d 833 (3d Cir.
1994). We also share with Judge Rosenn his concern about the
burden we place upon the district courts. However, we believe
that what we have required is consistent with Press Enterprises I
and its progeny.
During that period, the members of the petit jury stated their
names and hometowns on the record. Although the voir dire was an
"open" proceeding, in that the courtroom was not closed to non-
participants, the absence of the members of the press at the
court's request prevented them from learning the identities of
the Antar jurors.
The press was present during the remainder of the
trial. Toward the end of the trial, on the day that summations
were given and the jury retired, Richard P. O'Leary, counsel for
the Associated Press ("AP"), sent a letter to the court,
requesting the names and addresses of the jurors. Joint Appendix
("App.") at 203-04. O'Leary sent the letter because the AP hoped
to interview the jurors after the verdict. The combination of
the press's absence from the voir dire and the fact that the
record of the proceedings had not yet been transcribed left the
press in a curious position. Though the names of the jurors were
public information and anyone present during the voir dire might
know their identities, the press did not. In his letter, O'Leary
noted the news organization's interest in speaking to members of
the jury after the conclusion of the trial. He attempted to ease
any concerns the court might have had about potential contacts
with the jurors prior to the conclusion of deliberations by
stating: "As an officer of the court, I represent that I would
not disclose this information to the AP until after the verdict
has been returned." Id.
The court's response to O'Leary's request was to
immediately seal the transcript of the voir dire proceedings and
other portions of the public record containing juror identifying
information. This was done sua sponte: no hearing was held and
no findings were made.3
B. The Post-Sealing Hearings
Four days later, on July 20, 1993, the jury returned
its verdicts, convicting Eddie Antar and Mitchell Antar of
multiple counts of securities fraud. The AP then moved to
intervene in order to obtain the release of the jurors' names and
addresses. In the meantime, the district court had not dismissed
the jury because of a pending civil forfeiture action against the
Antars. However, on August 2, two days before the jury was to
reassemble, the government moved to dismiss the forfeiture
action. The court granted the dismissal and agreed that it would
discharge the jurors by telephone, rather than requiring them to
return to the courthouse. Because the jurors were not physically
present, the press were unable to approach them at the conclusion
of their jury service.
At the same time, the court raised the issue of the
AP's motion to intervene. Counsel for the AP reiterated the
3
. The only documentation of the closure appears in the district
court's docket sheet. Entry #94 reads in part: "Ordered minutes
of 6-3-93 and transcript sealed until further order of court. . .
. F[iled] 7-16-93." App. at 8.
press's interest in obtaining the jurors' names and addresses so
that they could be interviewed. The district judge responded:
I'm very interested in that issue. I'm a bit
baffled by it, to be perfectly frank with
you, because everything we do in this system
of justice is designed to protect the secrecy
of the jury proceedings.
App. at 106.
The AP countered by arguing that the First Amendment
established a right of access to jury voir dire proceedings. In
keeping with its concerns, the court replied that it would
require the press to rebut a presumption that communications with
jurors may be limited in order to ensure free and confidential
jury deliberations in the future.
We got a collision. We got some First
Amendment collision with that rule [Fed. R.
Evid. 606(b)].4 We got a collision with the
whole jury system here. I mean . . . you
folks are going to have the laboring oar
4
. Federal Rule of Evidence 606(b) provides:
(b) Inquiry into validity of verdict or indictment.
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury's
deliberations or to the effect of anything upon that or
any other juror's mind or emotions as influencing the
juror to assent to or dissent from the verdict or
indictment or concerning the juror's mental processes
in connection therewith, except that a juror may
testify on the question whether extraneous prejudicial
information was improperly brought to the jury's
attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a
juror's affidavit or evidence of any statement by the
juror concerning a matter about which the juror would
be precluded from testifying be received for these
purposes.
here. I'll tell you that. I'll give you a
hearing, obviously. You have a laboring oar
with me to show me . . . what, if any,
prevailing news gathering or First Amendment
arguments are sufficient to overcome the very
sacred nature of a jury's deliberations.
It would seem to me--I'm just talking flat
out. What are you going to ask the jury?
How did you vote? What did your fellow
jurors think? What evidence impressed you?
These are all things which fall squarely
within the proscriptions of that rule. I
can't call them to testify as to that.
App. at 107.
The judge then voiced his reluctance to release the
identities of the jurors because of his concern about the growing
trend of jurors in high-profile cases to discuss their
deliberations post-trial. He expressed his concern in stating:
All of a sudden, the minute they finish their
job, you send them outside and the press can
go asking them about their feelings about the
case? How did you vote in the case?
This sensationalism has got to stop some
place. We have to get back to our system of
justice. . . . There is something radically
wrong if we're trying cases in the press.
App. at 110.
The district judge's focus on Rule 606(b) is evident
from his comments. The judge indicated that this rule helps to
promote secrecy, which, in turn, promotes the health of the
deliberative process. He emphasized his belief that the
limitations of Rule 606 apply equally to press interviews as they
do to investigations into the validity of a verdict: "I'm stuck
on question number one, which is what can you ask a juror which .
. . does not fly in the face of what 606(b) talks about?" App.
at 113.
While the above concerns applied to the continued
sealing of the transcripts, the judge also explained why he
believed the initial closure order to have been necessary:
I sealed it all [the transcript and court
documents containing juror-identifying
information] because I wasn't going to have
my ruling subverted, hopefully. I sealed
everything.
. . .
The purpose of my gag order was very simple.
It was to get back to the very basic and
fundamental issue of having a jury not
affected by any outside influences, including
the outside-of-the-court statements made by
counsel for the government or for the
defense.
I've accomplished my purpose. Absolutely.
App. at 124.
In concluding, the judge explained that he would be
calling the jurors later that day to discharge them and that he
would "strongly suggest, in view of their duties, that they not
discuss the matter with the press at least insofar as their
deliberations are concerned." App. at 117. The judge cautioned
the press that they should not contact the jurors pending a final
decision, even if they were to come across the jurors' identities
through legitimate means. "I would recommend that they await
this Court's ruling. . . . If they want to take me on, be my
guest. . . . [I]t might be considered inappropriate to go ahead
and try to do some investigative work on the jury in the interim
before you have intervened in the proceeding." App. at 119-120.
At the end of the hearing, the judge scheduled argument for
August 23 on the questions of intervention and of the release of
the jurors' identities. The argument date was subsequently
postponed to October 18.
The Newark Morning Ledger Company and the New Jersey
Press Association then joined the AP in the motion to intervene.5
After full briefing of the issues, at the October 18, 1993,
hearing, the district judge permitted the interventions. He also
reiterated his concerns about protecting the jury deliberation
process:
You're talking about invading the jury room.
. . . You're going to ask them what the
deliberations were about, what was important,
what was unimportant, who voted for what, was
there a split on this.
5
. In addition, defendant Eddie Antar addressed the issue before
the district court, arguing in favor of release of the voir dire
transcripts. Letter from David W. Fassett, Esq. to Judge
Nicholas H. Politan (Aug. 26, 1993), App. at 208-212; Transcript
of Proceedings, October 18, 1993, App. at 184-86. Antar based
his argument upon the criminal defendant's Sixth Amendment right
to a public trial, suggesting that this right mandated disclosure
of all sealed transcripts. In particular, he relied upon Waller
v. Georgia, 467 U.S. 39, 104 S. Ct. 2210 (1984), as well as this
court's findings that subsequent public access to transcripts
helps to fulfill the constitutional purpose of an open trial,
United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986). Antar
has not raised this issue on appeal, and we see no need to
address it here.
. . .
That is what you gentlemen are espousing.
You gentlemen are espousing opening that door
and letting the public know everything that
goes on in the deliberative process under the
guise of the First Amendment. Not for the
purpose of . . . doing some analytical study
of the juror, but to sell a newspaper, sir.
That's all you're looking to do. Sell
newspapers. Don't ever forget it.
App. at 144-45. The judge further questioned whether there could
be any "valid public interest" in learning, after the fact, about
jury deliberations in a criminal case.
C. The District Court Opinion
The transcripts remained under seal until December 13,
1993. On December 9, 1993, the district court issued its order
and opinion unsealing the records, to become effective four days
later. United States v. Antar, 839 F. Supp. 293 (D.N.J. 1993).
In its opinion, the district court quickly disposed of
the matter of the initial sealing. The court explained that the
AP's letter requesting the jurors' names and addresses had caused
immediate concern by raising the possibility that the press would
interfere with the jurors prior to their rendering a verdict. In
response, "the court found it necessary to exercise its broad
discretion in supervising the fair administration of justice,"
and so it sealed the transcripts and other court records
containing juror-identifying information. Id. at 298.
The court then turned to consideration of whether the
transcripts should now be unsealed. The court characterized the
press's claim of access as an "assertion of a right to invade the
secret deliberations in the jury room." Id. at 296. In
analyzing whether the press possessed a legitimate claim to the
voir dire transcripts, the court framed the issue as whether the
press had a First Amendment right of access to the jurors
identities. Examining this potential "right of access to jurors'
identities," the court found that, (1) historically, the
identities of jurors have been known to the community, and (2)
such knowledge promotes the values of openness, fairness, and the
perception of fairness in the criminal justice system. Turning
to the fact that access to jurors' identities facilitates post-
verdict interviews by the press, however, the court found that
this practice "bodes ill for the continued vitality and
authoritativeness of the jury system," id. at 302, and suggested
that "the need for secrecy of jury deliberations is fundamental
to the tradition of justice." Id.
The court, then, recognized two compelling, if
competing, interests. Historical practice and values weighed in
favor of open recognition of jurors' identities; weighing against
disclosure was the "compelling societal and governmental interest
in maintaining the secrecy of the jury deliberative process and
protecting jurors from harassment, judgment and/or punishment
after rendering a verdict." Id. at 303. Of primary concern to
the court was the likelihood that probing jury deliberations
would discourage free and open exchange during the deliberative
process:
Common human experience dictates that one's
candor may be compromised when one fears that
his or her thoughts and comments . . . may be
revealed to the public immediately upon
rendering a verdict and being discharged.
Id. at 304.6
The court determined that the "fair administration of
justice" required it to make an accommodation between the two
interests, balancing each, rather than promoting one at the
expense of the other. As such, the court ordered the unsealing
of the voir dire transcripts and other public documents but
placed restrictions upon "any person" who might seek access to
the information contained therein.
The court imposed four limitations on juror contacts by
"any person who comes into possession of the transcript of the
juror voir dire and the juror identifying information contained
therein . . .." The first restriction, "(a) no juror is under
any obligation to grant an interview nor may any juror be
compelled to do so," is consistent with the routine instructions
customarily given to jurors in the federal court system. See
Administrative Office of the United States Courts, Handbook for
Trial Jurors 11 (1991). 839 F.Supp at 295.
6
. Specifically, in the text of its order, the court held that
"Providing unfettered access to the press and the public in
general . . . presents a substantial threat to the administration
of justice by endangering the deliberative process." Id. at 295.
 Though the court made no mention of actual or
threatened harassment of the jurors in this case, it described
the next two limitations as protecting the jurors from
harassment. These limitations restricted the manner in which the
Antar jurors might be approached and interviewed:
(b) repeated requests of a juror for an
interview are strictly prohibited;
(c) once a juror expresses a desire to
conclude an interview already in progress,
that interviewer must immediately cease all
questioning[.]
Id. In fact, the court recognized that it was imposing these
restrictions as a preemptive, rather than reactive, step, to
protect the jurors "should the members of the press become
overzealous in their quest for that which they have no particular
right to know." Id. at 305.
The fourth limitation was addressed to the interest in
maintaining the confidentiality of the jury deliberations. It
provided that
(d) no inquiry may be made into the specific
votes, statements, opinions or other comments
of any juror during deliberations other than
the juror being interviewed.
This also is consistent with the provisions of the federal
Handbook for Trial Jurors, which instructs federal trial jurors
that "the court may enter an order in a specific case that during
any such interview, jurors may not give any information with
respect to the vote of any other juror." Id. at 11. Commenting
upon the fourth restriction, the district judge acknowledged,
however, that the effect of the restriction upon the press'
inquiry was somewhat illusory: "If a juror freely chooses to
disclose such information, so be it. This Court, unfortunately,
is powerless to prevent such happenstance." 839 F. Supp. at 305.
This fourth limitation, then, inhibited only certain disclosures,
i.e., only those solicited by others, rather than those initiated
by a juror himself or herself.
The district judge summed up his justification for this
final restriction, stating:
The restriction[] serve[s] to guard against a
future juror's reluctance to openly share his
or her opinions for fear that those opinions
will be revealed by fellow jurors to all
inquiring minds.
Id. at 306.
Finally, the court's opinion set out the provisions of
a letter to be sent to the jurors simultaneously with the release
of the court's opinion and order. Id. at 306-08. The letter
explained to the jurors that their names and addresses were being
unsealed, and it warned that they might be contacted by members
of the press. The court noted that each juror had "a right to
talk to anyone about any aspect of the case, if you so choose."
Id. at 308. The court, however, asked the jurors to keep the
views of the court in mind when dealing with the press. In
particular, the court advised:
This tradition of secrecy is a hallmark of
the jury system. . . . Accordingly, I suggest
to you that our jury system functions better
if jurors continue to respect the privacy of
the jury room after their deliberations have
concluded.
Id. The letter ended with a recitation of the limitations
imposed in the court's order.
The press responded to the order by filing this timely
appeal.
II.
A.
The district court had jurisdiction over the underlying
criminal prosecutions pursuant to 18 U.S.C. § 3231. Under 28
U.S.C. § 1291, we have appellate jurisdiction to review final
decisions of the district court. We have previously noted that
orders either granting or denying access to portions of a trial
record are appealable as a final orders pursuant to § 1291.
United States v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987);
Smith, 787 F.2d at 113.
The existence of statutory jurisdiction does not settle
the question, however. Under Article III, § 2 of the
Constitution our ability to exercise judicial power extends only
to live cases and controversies. The court's December 9 order
currently affects the rights of the parties, so it presents such
a case. At first glance, however, the July 16 sealing order
appears to have been mooted by the December 9 order because the
transcripts have, in fact, been unsealed. On that issue, no
meaningful relief remains to be granted, and an opinion on the
matter would appear to be advisory in nature.
We believe, however, that the court's sealing of the
voir dire falls within that class of cases which are "capable of
repetition, yet evading review." Southern Pacific Terminal Co.
v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S. Ct. 279,
283, (1911). See, e.g., Press-Enterprise Co. v. Superior Court,
478 U.S. 1, 6, 106 S. Ct. 2735, 2739 (1986) ("Press-Enterprise
II"). The "capable of repetition" doctrine is a narrow exception
to the mootness principle, appropriately limited to cases
satisfying the following two requirements:
(1) the challenged action was in its duration
too short to be fully litigated prior to its
cessation or expiration, and (2) there is a
reasonable likelihood that the same
complaining party would be subjected to the
same action again.
Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349
(1975)(per curium). See also Dia Navigation Co. v. Pomeroy, _
F.3d _ (3d Cir. 1994).
In cases such as this, involving the presumptive right
of access to the stages of a criminal proceeding, a prohibition
on access is tied in some fashion to the ongoing proceeding. As
such, it typically is of short duration and could easily evade
review. Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
102 S. Ct. 2613 (1982). Based on the court's post hoc rationale
of protecting the jury during its deliberations, the court could
have unsealed the transcripts in a matter of days, once the
verdict had been returned. It did not do so for five months.
However, the fact that the court has now lifted a ban that was
improperly imposed should not work to preclude appellate review.
See Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555, 563, 100
S. Ct. 2814, 2820 (1980) ("This Court has frequently recognized .
. . that its jurisdiction is not necessarily defeated by the
practical termination of a contest which is short-lived by
nature").
The government, however, argues against application of
the "capable of repetition" exception on the ground that the
scenario of this case is unlikely to recur. True, it is unusual
that the crowding of a courtroom during voir dire will leave the
members of the press out in the corridor, where they will not
learn the identities of the jurors. Nonetheless, what is
important is that these parties not again be denied their right
of access to otherwise public transcripts without first receiving
the procedural and substantive protections that are prerequisite
to such exclusions.7 Accordingly, we will address the merits,
after a brief foray into the standard of review.
7
. This court has consistently found a reasonable likelihood of
recurrence to exist in situations involving denial of press
access to criminal proceedings and transcripts. See, e.g.,
United States v. Simone, 14 F.3d 833, 836-37 (3d Cir.
1994)(closure of post-trial examination of jurors not moot though
proceedings concluded and transcript released); Raffoul, 826 F.2d
at 222 (closure of courtroom during defendant's testimony not
moot though proceedings concluded); United States v. Criden, 675
F.2d 550, 554 (3d Cir. 1982)("Criden II")(sealing of pre-trial
hearing transcript not moot though proceeding concluded and
transcript publicly available). Cf. United States v. A.D., _
F.3d _, _ n.1 (3d Cir. 1994)(closure of juvenile detention and
B.
We exercise plenary review in determining whether the
district court applied the proper legal principles first in
sealing the transcript and later in unsealing it with
limitations. Simone, 14 F.3d at 837; Smith, 787 F.2d at 113 (3d
Cir. 1986). As a matter of course, we review the fact-finding of
the district court with substantial deference, reversing only for
clear error. Fed. R. Civ. P.52(a). In the First Amendment
context, however, the Supreme Court has recognized the duty of
reviewing courts to engage in an independent factual review of
the full record. New York Times Co. v. Sullivan, 376 U.S. 254,
285, 84 S.Ct 710, 728 (1964).8 Thus we have explained that when
(..continued)
delinquency proceedings, and sealing of transcripts, not moot
despite fact proceedings already concluded). In particular, the
court has taken notice of the fact that "certainly the press and
public will continue to seek access to criminal trials," Raffoul,
826 F.2d at 222, with the prospect that the press may be subject
to wrongful closure or sealing orders in the future.
8
. See also Bose Corp. v. Consumers, 466 U.S. 485, 498-502, 104
S. Ct. 1949, 1958-60 (1984). In Bose, the Court was concerned
with an apparent conflict between the seemingly limited scope of
review established by F. R. Civ. P. 52(a) and the "independent
factual review" required by New York Times v. Sullivan. The
Court found the rules to be compatible, based in part upon a
weaker presumption of accuracy given to findings of
constitutional fact. Specifically, the Court found a more
rigorous factual review to be appropriate where the legal rule at
issue "assigns an especially broad role to the judge in applying
it to specific factual situations," where the rule is "given
meaning through the evolutionary process of common-law
adjudication," and where the constitutional values protected by
the rule "make it imperative" that the rule is correctly applied.
Id. at 502, 104 S.Ct. at 1960. Accord United States v. Criden,
648 F.2d 814, 817 (3d Cir. 1981)("Criden I")(finding that scope
of "abuse of discretion" review "will be directly related to the
we address a right of access claim, our scope of review is
substantially broader than that for abuse of discretion. "This
broader review includes independent consideration of the district
court's order and the factual findings inferred from the evidence
before it." In re Capital Cities/ABC, Inc., 913 F.2d 89, 92 (3d
Cir. 1990).
III.
A.
We believe that the district court lost sight of the
requisites of access to court proceedings because of its concern
for protecting the jurors and their deliberations from exposure
by the press. The issue of media access to jurors is a topic of
vigorous debate, and the views of the district court, as set
forth above, are well represented in the literature.9 Yet in
(..continued)
reason why that category or type of decision is committed to the
trial court's discretion in the first instance.").
9
. On this debate, see, e.g., Abraham S. Goldstein, Jury Secrecy
and the Media: The Problem of Postverdict Interviews, 1993 U.
Ill. L. Rev. 295 (suggesting that jury's "authoritativeness" and
its role as "guardian of community social-justice values" are
threatened by public exposure, but arguing that best solution
would come from legislature in form of statute prohibiting
disclosure of deliberations, as this might support finding of
compelling governmental interest overriding First Amendment right
of access)(But see Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 102 S. Ct. 2613 (1982) (requiring case-by-case,
individualized findings of compelling interest before closure may
be ordered and rejecting notion that legislative findings and
enactment could support closure in all cases of a given class));
Robert L. Raskopf, A First Amendment Right of Access to a Juror's
Identity: Toward a Fuller Understanding of the Jury's
Deliberative Process, 17 Pepp. L. Rev. 357 (1990) (advocating a
both of its orders--first sealing the transcript, and then
limiting the use of the juror information--the court failed to
make findings sufficient to justify its restrictions on access.
By recasting the question posed as "whether the press has a right
of access to the jurors' identities," the court obscured the
central issue in this case: the propriety of limiting the right
of access sua sponte, without findings, and under the
circumstances which existed both at the time of the sealing and
at the time of the restricted unsealing.
Although the actions of the district judge served to
deprive the press of the jurors' identities, this objective was
accomplished by means of sealing the voir dire transcript. Under
the Supreme Court's First Amendment analysis, we must look
objectively to that which was done and the means by which it was
accomplished. Then, we assess whether those actions comport with
the substantive and procedural strictures established to
vindicate the "freedom of speech, [and] of the press" guaranteed
under the First Amendment. As such, our analysis starts with the
first action taken--the sealing of the voir dire transcript.
B.
(..continued)
right of access to jurors' identities and describing the
educational and institutional benefits of juror interviews);
Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev.
886 (1983)(recognizing that post-trial restrictions on access to
jurors implicate First Amendment protections and suggesting that
judges use persuasive, rather than prohibitive, techniques, such
as judicial supervision of interviews and admonishment of jurors
concerning the need to protect the secrecy and confidentiality of
their deliberations).
The public right of access to voir dire proceedings in
a criminal case is firmly established. The Court's "right of
access" jurisprudence began with Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 100 S. Ct. 2814 (1980), in which the Court
held that the First Amendment provides the public and the press
with a right of access to criminal trials.10 The case involved a
retrial in a murder prosecution that had been closed without
findings or consideration of alternatives to closure. Tapes of
the proceedings were, however, released as soon as the trial
concluded. The Court found that criminal trials are covered by a
"presumption of openness," id. at 573, 100 S.Ct. at 2825, so that
closure of the proceedings may be justified only by an
"overriding interest articulated in findings." Id. at 581, 100
S.Ct at 2829.
In Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 596, 104 S. Ct. 819 (1984)("Press-Enterprise
I"), the Court specifically addressed whether the guarantees of
open public proceedings in criminal trials extend to the voir
dire examination of potential jurors. The Court held that they
do. Following its analysis in Richmond Newspapers, the Court
based its finding of a right of access upon two primary
considerations: (1) the lessons of historical practice, and (2)
10
. 448 U.S. at 576-77, 100 S.Ct at 2827 (plurality); 448 U.S.
at 583-84, 100 S.Ct. at 2830-31 (Stevens, J., concurring); 448
U.S. at 585, 100 S.Ct at 2831 (Brennan, J. and Marshall, J.,
concurring). See also Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 603, 102 S. Ct. 2613, 2618 (1982).
the beneficial value of open proceedings to the functioning of
the judicial process and the government as a whole. See Globe
Newspaper, 457 U.S. at 604-06, 102 S.Ct. at 2619. This has
become known as "the test of experience and logic." Id. at 2620;
Simone, 14 F.3d at 837. In its historical survey, the Court
found that jury selection has, since its inception,
"presumptively been a public process." Press-Enterprise I, 464
U.S. at 505, 104 S.Ct. at 821. With regard to institutional
values, the Court concluded that "[o]penness . . . enhances both
the basic fairness of the criminal trial and the appearance of
fairness so essential to public confidence in the system." Id.
at 508, 104 S.Ct. at 823. As such, the court held that the right
of access clearly encompasses voir dire proceedings, so that
closure "must be rare and only for cause shown that outweighs the
value of openness." Id.; 104 S. Ct. at 509.
The Court proceeded to set forth the standards to be
applied in determining whether closure may be justified on the
facts of a given case:
The presumption of openness may be overcome
only by an overriding interest based upon
findings that closure is essential to
preserve higher values and is narrowly
tailored to serve that interest. The
interest is to be articulated along with
findings specific enough that a reviewing
court can determine whether the closure order
was properly entered.
Id. at 510, 104 S.Ct at 824. See also Globe Newspaper Co., 457
U.S. at 607, 102 S.Ct. at 2620 (describing test as requiring
showing that closure is "necessitated by a compelling
governmental interest, and is narrowly tailored to serve that
interest"). These requirements have been restated unequivocally
in each of the "right of access" cases since Richmond Newspapers.
For example, in the case subsequently known as Press-Enterprise
II, 478 U.S. 1, 106 S. Ct. 2735, the Court held that there is a
right of access to preliminary hearings conducted pursuant to the
California penal code. At issue was an asserted conflict between
the defendant's Sixth Amendment right to a fair trial and the
First Amendment right of access to criminal proceedings. Even
while recognizing that the defendant has an absolute right to a
fair trial,11 the Court emphasized the unyielding substantive and
procedural protections that must be satisfied before a trial can
be closed to protect that competing constitutional right:
[T]he proceedings cannot be closed unless
specific, on the record findings are made
demonstrating that closure is essential to
preserve higher values and is narrowly
tailored to serve that interest. If the
interest asserted is the right of the accused
to a fair trial, [a proceeding to which the
right of access applies] shall be closed only
if specific findings are made demonstrating
that, first, there is a substantial
probability that the defendant's right to a
fair trial will be prejudiced by publicity
that closure would prevent and, second,
reasonable alternatives to closure cannot
11
. In Press-Enterprise I the Court observed that "No right
ranks higher than the right of the accused to a fair trial." 464
U.S. at 508, 104 S. Ct. at 823. See also, Richmond Newspapers,
448 U.S. at 564, 100 S.Ct. at 2821 (describing the right to a
fair trial as "superior").
adequately protect the defendant's fair trial
rights.
Press-Enterprise II, 478 U.S. at 13-14, 106 S.Ct. at 2743
(citations omitted).12 The Court concluded by suggesting that
the mere assertion of a conflict between an established right of
access and a societal or governmental interest--even another
constitutional right--must not be used to defeat the right of the
public and the press to open proceedings. Rather, particularized
findings must be made on the record in each case, (1)
establishing the existence of a compelling governmental interest,
and (2) demonstrating that absent limited restrictions upon the
right of access, that other interest would be substantially
impaired. Id. at 15, 106 S.Ct. at 2743 (explaining that "[t]he
First Amendment right of access cannot be overcome by the
conclusory assertion that [open proceedings] might deprive the
defendant of [the right to a fair trial]").
Pursuant to Press-Enterprise I, then, there exists a
presumptive right of access to voir dire proceedings. This right
12
. Furthermore, while the Court recognized the defendant's
paramount right to a fair trial, it rejected the California
court's analysis that closure may be justified on a mere finding
of a "reasonable likelihood of substantial prejudice." Instead,
the Court required a more stringent showing of "substantial
probability." In addition to strengthening the substantive
proofs required, as an analytical matter, the Court rejected the
state supreme court's approach of balancing the right to a fair
trial against the right of access, reminding "these interests are
not necessarily inconsistent. . . . One of the important means of
assuring a fair trial is that the process can be open to neutral
observers." Press-Enterprise II, 478 U.S. at 7, 106 S.Ct. at
2739.
of access may not be abridged absent the satisfaction of
substantive and procedural protections. On the substantive side,
a court ordering closure must first establish that the competing
interest asserted is not only "compelling," but also that it
outweighs the First Amendment right of access. Second, it must
determine that the limitations imposed are both necessary to and
effective in protecting that interest. One part of establishing
the necessity of a limitation is a consideration of alternative
measures and a showing that the limitation adopted is the least
restrictive means of accomplishing the goal. See A.D., _ F.3d _;
Criden II, 675 F.2d 550. On the procedural side, these
determinations must be covered by specific, individualized
findings articulated on the record before closure is effected.
See Simone, 14 F.3d at 840; Raffoul, 826 F.2d at 226; Criden II,
675 F.2d at 554, 560.
1.
In the case now before us, the government attempts to
evade the implications of the above by suggesting that the actual
voir dire proceedings were not closed. True, no court order
excluding non-parties was entered on the record. Nonetheless,
the court requested that the press leave the courtroom, thereby
precluding them from obtaining information about the jurors. The
mere fact that the members of the press politely responded to a
judicial request, rather than waiting to be compelled by an
order, should not inure to their detriment.
That distinction aside, the fact that the courtroom was
open during those three days in June is of little import, as we
find that the right of access to voir dire examinations
encompasses equally the live proceedings and the transcripts
which document those proceedings. See New York v. Chambers, 14
Med. L. Rptr. 1919 (N.Y. Sup. Ct. 1987)(right of access extends
to voir dire transcripts, even where press has been present
during open voir dire proceedings). It is access to the content
of the proceeding--whether in person, or via some form of
documentation--that matters.13 Several factors compel this
result.
13
. We emphasize, however, that documentary access is not a
substitute for concurrent access, and vice versa. The right of
access encompasses both forms, and both are vitally important.
Thus, where a right of access exists, a court may not deny access
to a live proceeding solely on the grounds that a transcript may
later be made available. Such a transcript would not fully
implement the right of access because some information,
concerning demeanor, non-verbal responses, and the like, is
necessarily lost in the translation of a live proceeding to a
cold transcript. In Simone, 14 F.3d at 842, this court
explained,
Because we have found the district court's
findings in this case were insufficient to
support closure, we cannot conclude that the
release of the transcripts afforded adequate
access in this case. To do so would relax
the standard for closure and would undermine
one of the essential aspects of access by
permitting public scrutiny of proceedings
only at this later time.
Of course, where a court follows the procedure outlined
above and finds that closure is necessary and effective to
preserve an overriding interest, so that the right of access may
therefore be temporarily limited, later release of a transcript
First, openness is ongoing--a status rather than an
event. At the heart of the Supreme Court's right of access
analysis is the conviction that the public should have access to
information; the Court never has suggested that an open
proceeding is only open to those who are able to be bodily
present in the courtroom itself.14 True public access to a
(..continued)
may be the next best means of implementing the right of access.
Thus, for example, in Smith, 787 F.2d 111, this court held that
the press and the public may be justifiably excluded from sidebar
and in camera conferences. However, we continued to explain
that:
[I]f there has been no contemporaneous
observation, the public interest in
observation must be effectuated in the next
best possible manner. This is through the
common law right of access to judicial
records.
Id. at 114-15.
14
. Specifically, though Press-Enterprise I involved closure of
voir dire proceedings, neither the language nor the reasoning of
that case suggest that the right of access should be construed to
distinguish between concurrent access to live proceedings and
later access to a written record. The Court was concerned with
information, not with a particular means of communication. The
Court wrote:
The value of [the open selection of jurors]
lies in the fact that people not actually
attending trials can have confidence that
standards of fairness are being observed; the
sure knowledge that anyone is free to attend
gives assurance that established procedures
are being followed and that deviations will
become known.
464 U.S. at 508, 104 S. Ct. at 823. Similarly, public confidence
is furthered by the knowledge that access to the proceedings is
available at a later date via the transcript which is a public
judicial record.
proceeding means access to knowledge of what occurred there. It
is served not only by witnessing a proceeding firsthand, but also
by learning about it through a secondary source. In fact,
recognition of the crucial role of secondary representation is
the basis for the Court's protection of the rights of the media,
who have been described by the Court as "functioning as
surrogates for the public." Richmond Newspapers, Inc., 448 U.S.
at 574, 100 S.Ct. at 2825.15 Access to the documentation of an
open proceeding, then, facilitates the openness of the proceeding
itself by assuring the broadest dissemination. It would be an
odd result indeed were we to declare that our courtrooms must be
open, but that transcripts of the proceedings occurring there may
be closed, for what exists of the right of access if it extends
only to those who can squeeze through the door?16
Furthermore, at the most basic level, the transcript
at issue is a public judicial document, covered by a presumptive
15
. The close connection between the rights of the public and
the rights of the press has been widely observed. In Nixon v.
Warner Communications, 435 U.S. 589, 609, 98 S. Ct. 1306, 1318
(1978), the Court noted that the press "serves as the
information-gathering agent of the public." As such the First
Amendment generally grants to the press no greater--and also no
lesser--right to information about a trial than it does to the
public at large. See John E. Nowak & Ronald D. Rotunda
Constitutional Law § 16.20 (4th ed. 1991).
16
. See Criden I, 648 F.2d at 822 (noting that "the public forum
values emphasized in [Richmond Newspapers] can be fully
vindicated only if the opportunity for personal observation is
extended to persons other than those few who can manage to attend
the trial in person.").
right of access. The Supreme Court, in Nixon v. Warner
Communications, Inc., recognized an historically-based, common
law right to inspect and copy judicial records and documents.
435 U.S. at 597, 98 S.Ct. at 1312. In fact, this long-
established17 common law right has played a crucial role in the
development of First Amendment jurisprudence. As the First
Circuit has observed, "The common law presumption that the public
may inspect judicial records has been the foundation on which the
courts have based the first amendment right of access to judicial
proceedings." Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st
Cir. 1986) (emphasis added).
This court has also noted that the common law right of
access to transcripts helps to fulfill the openness of criminal
trials assured by the First Amendment and recognized in Richmond
Newspapers: "By inspection of such transcripts, the public,
usually through the press, can monitor, observe, and comment upon
the activities of the judge and the judicial process." Smith,
787 F.2d at 115. Under our guiding jurisprudence, "[t]he
existence of a common law right of access to . . . inspect
judicial records is beyond dispute." Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059, 1066-67 (3d Cir. 1984). See, e.g.
Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d
157 (3d Cir. 1993); Republic of Philippines v. Westinghouse Elec.
17
. "The right to inspect and copy [judicial records and
transcripts] antedates the Constitution." Criden I, 648 F.2d at
819 (citation omitted).
Corp., 949 F.2d 653 (3d Cir. 1991). This strong presumption of
access to records, including transcripts, provides independent
support for the conclusion that the First Amendment right of
access must extend equally to transcripts as to live proceedings.
2.
The government next contends that if, indeed, the
sealing of the transcripts is to be considered a "closure" which
is covered by a right of access, such closure was justified by
compelling reasons. Even were that so, we still would be
required to reverse the order of the district court. This is
because at the time of the sealing, no findings were placed on
the record. Findings were not issued until December 9, 1993,
nearly five months after the sealing occurred. Under the
procedure established in Press-Enterprise I and the subsequent
right of access cases, closure may not be retroactively
validated. The court here did not satisfy its burden of placing
findings on the record which clearly established that closure was
necessary to protect an overriding interest. On this basis
alone, the order sealing the transcripts was improper.18 While
18
. We note as well that this case raises important due process
clause issues. First, there was not even minimal notice and an
opportunity to respond prior to the deprivation of the right of
access. And after the deprivation occurred and the press
objected, asserting the right of access, there was a delay before
a hearing was afforded. In Raffoul, 826 F.2d at 224, this court
held that the due process clause "prohibits exclusion of the
press and public from a criminal trial without affording full and
fair consideration to the public's interest in maintaining an
open proceeding." The court required that motions for closure be
publicly docketed, that in camera motions be renewed in open
court, and that a brief, pre-closure hearing be granted as a
the district court revisited that order, unsealing the
transcripts with limitations placed upon their use, that initial,
improper action was not cured by the release of the transcript.
See Simone 14 F.3d at 842. Under Press-Enterprise I, the press
had a right of access to the information, and as each day passed,
(..continued)
matter of right to those actually present in court before closure
may be ordered. In addition, "interested members of the press
and public must be permitted a hearing within a reasonable time
in order to move for access to sealed transcripts of a closed
proceeding." Id. at 225. See also Criden II, 675 F.2d at 559
(requiring that motions for closure of pretrial proceedings must
be entered on docket sufficiently in advance of disposition to
afford an opportunity for intervention and resistance).
Here, of course, the proceedings were not closed, so
that closure began with the sealing of the transcripts. Yet that
distinction is not dispositive, for the right of access extends
equally to transcripts as to proceedings. See supra at __. The
logic of Raffoul suggests that the provision of some minimal
notice and a limited opportunity for a hearing was incumbent upon
the court before it could impose closure of its own motion. It
is axiomatic that, at a minimum, procedural due process requires
that the deprivation of a protected interest be accompanied by
notice and an opportunity to be heard at a meaningful time, and
in a meaningful manner. Goldberg v. Kelly, 397 U.S. 254, 267, 90
S. Ct. 1011, 1020 (1970); Armstrong v. Manzo, 380 U.S. 545, 552,
85 S. Ct. 1187, 1191 (1965); Raffoul, 826 F.2d at 222. As Justice
Powell observed in Gannett, Co. v. DePasquale, 443 U.S. 368, 400-
01, 99 S. Ct. 2898, 2916 (concurring),
It is not enough . . . that the trial courts
apply a certain standard to requests for
closure. If the constitutional right of the
press and public is to have substance,
representatives of these groups must be given
an opportunity to be heard on the question of
their exclusion.
This passage was adopted by a Court majority in Globe Newspaper,
457 U.S. at 609, n. 25, 102 S. Ct. at 2621.
the information denied to the press and the public grew
increasingly stale.
3.
The on-going effect of the initial lack of findings is
a prime example of the correlation between substance and
procedure. In the First Amendment context, the procedural
requisites to closure are crucial in order to protect against
erroneous restrictions upon the right of access.19 Thus, the
requirement that particularized findings of a compelling interest
must be placed on the record before a hearing is closed or a
record sealed is not only for the benefit of the reviewing court
on appeal. It exists, most fundamentally, to assure careful
analysis by the district court before any limitation is imposed,
because reversal on review cannot fully vindicate First Amendment
rights.
Here, the lack of findings at the outset facilitated
the delay in the unsealing of the transcript. It is questionable
whether the court's after-the-fact description of its reason for
sealing the transcript pre-verdict--to protect the jury from
outside influences during their deliberations20--is supported by
19
. Cf. Mathews v. Eldridge, 424 U.S. 319, 335, 343, 96 S. Ct.
893, 903, 907 (1976)(finding the value of procedural safeguards
to be a factor in determining what procedure is due to protect
against the erroneous deprivation of liberty or property
interests within the meaning of the due process clause).
20
. Antar, 839 F. Supp. at 300 ("[S]ealing the voir dire was
necessary at that time to preclude any possibility of contact by
the media during deliberations.").
the record. However, even if it were, that basis evaporated upon
the return of a verdict. By the court's own logic it should have
unsealed the transcripts on July 20. In fact, as early as August
2, the court acknowledged, "I've accomplished my purpose.
Absolutely." Yet the court failed to unseal the documents.
Under the First Amendment, once an overriding interest initially
necessitating closure has passed, the restrictions must be
lifted.21 Had the court clearly articulated its reasons for
closure on the record, the passing of the purported exigency may
have been more noticeable.22
The lack of findings also allowed the court to pass
over the fact that, where a right of access exists, the proponent
of closure bears a strong burden in rebutting the "presumption of
21
. See Capital Cities Media, Inc. v. Toole, 463 U.S. 1303,
1306, 103 S. Ct. 3524, 3527 (1983)(Brennan, Circuit
Justice)("Insofar as the State's interest is in shielding jurors
from pressure during the course of a trial, so as to ensure the
defendant a fair trial, that interest becomes attenuated after
the jury brings in its verdict and is discharged."); In re Globe
Newspaper Co., 920 F.2d 88, 91 (1st Cir. 1990)("[S]tronger
reasons to withhold juror names and addresses will often exist
during a trial than after a verdict is rendered. After the
verdict, release normally would seem less likely to harm the
rights of the particular accuseds to a fair trial.).
22
. We indicate no judgment whether the court's post hoc
justification, if offered as a finding before closure, would have
been sufficiently evidenced to have satisfied the need for an
"overriding interest." In its December 9 opinion the court found
that, despite counsel's assurance that he would not release the
names and addresses of the jurors to the press before the
verdict, the request was sufficient to raise a tangible threat to
the purity of the jury's deliberations and sufficiently
compelling to have permitted closure.
openness." Instead of recognizing that it bore the burden of
justifying the original sealing order, as well as the decision to
maintain the transcripts under seal, the court shifted the burden
to the press to demonstrate to the court why the documents should
be unsealed.23 In effect, once the court accomplished the
sealing--without affording either the press or the public the
procedural protections of findings, notice, or an opportunity to
respond--it viewed the sealed status of the transcripts as the
status quo. From the record before us, the district judge
appears not to have recognized that maintaining the transcripts
under seal, though a passive act, was an active decision
requiring justification under the First Amendment.
Moreover, not only must a court ordering closure
establish that an overriding interest compels some limitation
upon the right of access, but it must also ensure that the
limitation imposed is the least restrictive means possible. In
determining what limitation is least restrictive, the court is
justified in recognizing the countervailing need to protect the
confidentiality of juror deliberations. However, threats to that
process must be actual and specific, not conclusory and generic.
The court must articulate findings of the actual expectation of
23
. Thus, the court warned that the press would bear "the
laboring oar" with regard to any argument in favor of unsealing
the transcripts. In particular, the press would have to
establish "what, if any news gathering or First Amendment
arguments are sufficient to overcome the very sacred nature of a
jury's deliberations" (emphasis added).
an unwarranted intrusion upon juror deliberations or of a
probability of harassment of jurors beyond what the jurors,
rather than what a particular judge, may deem to be acceptable.
Unfortunately, the district court here failed to make
the particularized findings which may sufficiently justify a
limitation upon the right of access. This allowed the district
judge to rely upon his personal assessment of generalized,
societal concerns.
4.
Compounding the problem of the late release of the
transcript was the nature of the restrictions, placed upon the
press's use of juror information, in the absence of findings that
jurors were being harassed or that a threat of undue harassment
was impending.24 As noted above, there is substantial debate
about the value of post-verdict interviews. Supra note 8. The
benefits of access and of public awareness of the duties and
obligations of the jury process are weighed against concerns that
courts may become carnivals, that jurors may be reluctant to
serve in future cases if they fear their comments in the jury
room will be repeated later by their fellow jurors for broadcast
to the public, and that public knowledge of the factors behind a
verdict may undermine respect for the process.
24
. We deal with the issue here under the circumstance that the
restrictions were imposed five months after the conclusion of the
trial. We realize of course that the result we reach here might
not be appropriate in all aspects were the district court dealing
with restrictions on juror contacts at the immediate close of a
widely publicized trial.
Though an interesting debate, generalized social claims
should not bear upon a decision whether limitations should be
placed upon the press's ability to have post-trial access to
jurors. Here, for example, the court's concern with harassment
was hypothetical, as there was no evidence, or even allegation,
of misbehavior by the press.25 In fact, both in the initial
letter to the court requesting the juror's names and at the
October 18 hearing, the press suggested that, upon the court's
agreement, they would interview those jurors who were willing
after the verdict in a separate room at the courthouse, so as to
allow the court to supervise and to minimize any potential for
disturbing the jurors at their homes. Of course, where evidence
of harassment does exist, it is unquestionable that the court has
both the power, as well as the duty, to prevent it. In re News-
Express Corp., 695 F.2d 807, 810 (5th cir. 1982); United States
v. Doherty, 675 F. Supp. 719, 724 (D. Mass. 1987).
Moreover, in the present case, because there is not a
sufficient record of the immediacy of juror harassment by the
press, we are unable to determine whether there may have been
viable alternatives to the limitations imposed on juror contacts
after the transcripts were unsealed. The district court was
correct to be concerned about the potential negative effect of
25
. The closest thing to factual support for a finding of a
potential for harassment is the court's observation of what it
called a "truism"-- that "reporters are persistent and tenacious
in pursuing information." 839 F. Supp. at 303 (citation omitted).
disclosures by former jurors upon the freedom and candor of
deliberations in future cases. And though this may not suffice
to restrict the right of access to voir dire transcripts, it does
not mean that other avenues of recourse are unavailable. In
particular, the district court has the discretion to discuss
press contacts with the jury at the end of a trial; to emphasize
to the jurors the importance of maintaining the confidentiality
of jury deliberations in order to promote frank discussion during
those deliberations; to assure jurors that the court will protect
them from harassment by the press; to provide, if necessary, a
neutral area where the press can interview the jurors; and to
remind the jurors of the value of their service and the crucial
role that trust and confidentiality among jurors plays in the
fulfillment of their duty. See, e.g., Globe Newspaper, 920 F.2d
at 93-94 ("It has . . . been a common and, we believe, wise
custom for trial judges to advise jurors . . . that they not only
are free to refuse to disclose what went on in the jury room, but
that they may well think it better and more prudent to decline to
discuss what occurred."). Such comments from the bench, though
cautionary in nature, are thoughtfully received by jurors who
generally accept their role with the seriousness it is due.
Turning to the specific restrictions imposed here, we
will affirm the first, that no juror is obliged, or may be
compelled, to grant an interview. This restriction is consistent
with the advice long given to jurors concerning post-trial press
contacts. We conclude, however, that the second and third
prohibitions, against "repeated" juror contacts and against any
attempt to resume a juror interview after a juror expresses a
desire to conclude it, cannot stand in the absence of any finding
by the court that harassing or intrusive interviews are occurring
or are intended. The existing or threatened basis for such
restrictions must be present before they are imposed.
Furthermore, even if sufficient basis for imposing these
restrictions did exist, it is not certain that, in the absence of
the consideration of alternatives, they would have been the least
restrictive means available to the court.
The fourth prohibition, forbidding inquiry into the
"specific votes, statements, opinions or other comments" of any
other juror, encompasses in part the provision in the Handbook
for Trial Jurors, "the court may enter an order in a specific
case that during any such [post-trial] interview, jurors may not
give any information with respect to the vote of any other
juror." Handbook at 11 (emphasis added). The Handbook provision
is directed at "specific" cases, not all cases. We cannot
ascertain after the fact whether the fourth restriction, in its
broader form, was necessary one year ago under the circumstances
of this specific case. We will not vacate it because such a
restriction is appropriate in certain specific cases. We are
troubled, however, by the lack of explanation for its imposition
here. When in a specific future case the district court may
determine to impose a similar restriction, our appellate review
would be assisted if the district court were to give an
explanation for the necessity of the restriction.
IV.
In closing, we acknowledge the weight of the district
court's concerns. However, we conclude that restrictions on
post-trial interviews must reflect an impending threat of jury
harassment rather than a generalized misgiving about the wisdom
of such interviews. For the foregoing reasons, the order of the
district court will be reversed as to the original sealing order
and as to that part of the unsealing order which comprises the
second and third restrictions on juror contacts by the press. We
will affirm the district court's imposition of the first and
fourth restrictions.
RE: UNITED STATES v. EDDIE ANTAR, et al.
Nos. 93-5732, 93-5733, 94-5006
_________________________________________________________________
ROSENN, Circuit Judge, concurring.
This case marks another effort by the press to test the
outer limits of their right to gather and print news about all
aspects of the judicial system and implicates the historic
efforts of the courts to protect the confidentiality of a jury's
deliberative process. Our decision today recognizes the right of
press access to the courts, including the right to interview
jurors, but we reaffirm that this right is not absolute. The
press' right to interview jurors is separated by a delicate but
important line between the permissible and the impermissible. We
attempt to draw that line in this case.
I write separately, however, to express my deep concern
that the court, by its opinion, may be announcing conflicting and
confusing standards with respect to the findings a district court
must make before invoking closure during a criminal trial.
Moreover, the court's opinion unnecessarily requires post-trial
factual findings before a trial court can attempt to guide the
press and jurors over the dangerous shoals that must be carefully
navigated whenever jurors are interviewed after a verdict.
A.
In this modern era, federal trial courts are confronted
with increasingly complex cases in both civil and criminal
trials. The trials are often complicated by intricate procedural
rules, lengthy discovery, and time-consuming collateral issues.
In a lengthy, nationally covered, high-profile criminal
proceeding, such as this case, the trial judge's attempts to
control and protect the integrity of the judicial process are
challenging and fraught with deep risks. An appellate court,
therefore, should refrain from burdening the trial court with
unnecessary and exacting findings regarding collateral matters.
The court commences its opinion with a standard that
requires specific findings before a trial court may order closure
so that a reviewing court can determine whether the trial court
properly entered a closure order. The Supreme Court of the
United States announced this standard in 1984 and this court
followed it until today. Now, however, the court expands the
standard by requiring the judge to make "detailed" (Maj. Op. at
5) and "individualized" (Maj. Op. at 27) findings before
effecting closure. More troubling is the requirement that the
findings "clearly" establish that the closure was necessary to
protect an overriding interest. (Maj. Op. at 32).
I see no difference between the specificity of findings
necessary to determine whether closure is justified and the
findings required in any other dispositive aspect of a judicial
proceeding. Trial court findings must be sufficient to enable a
reviewing court to ascertain the basis and validity of the trial
court's questioned ruling. No greater purpose or burden attaches
to findings because they are made in a proceeding involving First
Amendment issues. This is demonstrated in Press-Enterprise Co.
v. Superior Court of California, 464 U.S. 501 (1984), (Press-
Enterprise I) where the Court discussed the quality of the
findings necessary to overcome the presumption of openness and
justify closure. The Court stated that the threatened interest
must be articulated with findings "specific enough that a
reviewing court can determine whether the closure was properly
ordered." Id. at 510. The Court reiterated that standard two
years later in Press-Enterprise Co. v. Superior Court, 478 U.S.
1, 13 (1986) (Press-Enterprise II). The Court required no more.
One year later, the press complained in United States
v. Raffoul, 826 F.2d 218 (3d Cir. 1987), that the district court
did not articulate reasons for closure with sufficient
specificity. Citing Press Enterprise I, this court adhered to
the standard of specific findings enunciated in that case. More
recently in United States v. Simone, 14 F.3d 833, 840 (3d Cir.
1994), this court determined that a party's First Amendment right
of access applied to post-trial examination of jurors for
potential misconduct. We therefore considered the sufficiency of
the district court's findings to justify restriction of that
right. Again, the court relied on the specific findings standard
referred to in Press Enterprise I. I see no reason in this case
to depart from the standard we followed in Raffoul and Simone.
Nothing here justifies a higher, more burdensome standard. Yet,
the court's opinion today enhances the specific findings
standard. By requiring that the trial court's findings "clearly"
establish that closure was necessary to protect an overriding
interest, the court puts us uncomfortably close to the clear and
convincing standard of proof required to establish fraud. The
additional findings now required can only lead to troublesome
problems by requiring a trial court to calibrate its findings.
B.
With respect to the sensitive area of post-verdict
interrogation of jurors, the trial court was justifiably
concerned with the unsupervised behavior of a zealous and
aggressive press in these "high-profile prosecutions for
securities fraud, RICO conspiracy, mail fraud, and related
charges." The courts traditionally have worried about protecting
the secrecy of a jury's deliberations because of the substantial
danger of embarrassing, harassing, or intimidating a juror. This
case took approximately seven weeks to try and required more than
six days of jury deliberations. Understandably, the trial judge
was gravely concerned with preserving the integrity of the trial
proceedings, the confidentiality of the jury's deliberations and
the thought processes of the individual jurors.
Under these circumstances, the trial court ultimately
ordered the unsealing of the voir dire transcripts and the judge
imposed certain limitations regarding the manner in which post-
verdict interviews were to be conducted in order to protect the
jurors' privacy and in the interest of maintaining the secrecy of
the jury deliberative process. The judge wrote each of the
former jurors a letter informing them of his unsealing order and
the consequent disclosure of the jurors' names and hometowns.
The court informed them that they might be contacted by the media
and explained their role in the justice system and the tradition
of secrecy accorded jury deliberations. The judge was obviously
motivated by the long recognized view of the courts that "freedom
of deliberative thought is central to the institution of trial by
jury and that this freedom is endangered almost as seriously by
the prospect of post-trial disclosure as it is by the presence of
spectators in the jury room." Note, 96 Harv. L. Rev. 905 (1982-
83).
The trial judge further advised the jurors that in
issuing his order unsealing the public record, he had included
the following guidelines to be followed by anyone seeking a juror
interview:
(a) no juror is under any obligation to
grant an interview nor may any juror be
compelled to do so;
(b) repeated requests of a juror for an
interview by any person or any associate of
that person are strictly prohibited;
(c) once a juror expresses a desire to
conclude an interview already in progress,
the interviewer must immediately cease all
questioning;
(d) although . . . free to discuss any
aspect of the case, [a juror] should be aware
that no one may ask about the specific vote,
statement, opinion, thoughts or comments of
any juror other than [him/herself].
As the court notes today, the first limitation is
consistent with "the routine instructions" customarily given to
jurors in the federal system. As an "instruction" or guideline,
no findings are required before it is given. The court also
notes that the fourth limitation directed to maintaining the
confidentiality of the jury deliberations is, like the first,
consistent with the provisions of the federal Handbook for Trial
Jurors. The Handbook instructs the jurors that "the court may
enter an order in a specific case that during any [post-verdict]
interview, jurors may not give any information with respect to
the vote of any other juror." Again, the Handbook does not
require the district court to make any findings before it gives
this instruction. In fact, the judge acknowledged the limited
effect of this instruction when, during discussion of the
contents of his proposed letter to the jurors, he informed
counsel that "[i]f a juror freely chooses to disclose such
information, so be it." United States v. Antar, 839 F. Supp.
283, 305 (D. N.J. 1993).
In its second and third instructions, the court may
have been excessively cautious in its effort to protect the
jurors from harassment, embarrassment, or intimidation. The
problem with the second instruction is that more than one or two
requests may be made of a juror, depending upon the nuance, tone,
and language of the interviewer, without harassing the juror.
This instruction also disregards the possibility that each juror
may have a different tolerance for harassment. Therefore, the
language of this instruction is arbitrary and inflexible.
The third instruction does not allow for a situation
where a juror may express a desire which is tentative or
indecisive. This instruction does not give an interviewer a
reasonable amount of latitude. Had the court limited its
instructions to forbidding the interviewers from harassing,
embarrassing, or intimidating a juror, the instructions would
have been consistent with the concerns expressed by the Supreme
Court and reflected in Federal Rule of Evidence 606(b). However,
the instructions actually given here unduly limited the
perimeters of a reasonably permissible interview.
In United States v. Moten, 582 F.2d 654 (2d Cir. 1978),
the court of appeals considered an application for permission to
conduct post-verdict juror interviews. The court observed that
"the proper functioning of the jury system requires that the
court protect jurors from being 'harassed and beset by the
defeated party in an effort to secure from them evidence . . . to
set aside the verdict.'" Id. at 664 (citing McDonald v. Pless,
238 U.S. 264, 267 (1915)). In addition, the court recognized
that certain limits on post-trial inquiry into jury verdicts are
necessary in the interest of finality. Id. There is also a
danger, noted in Moten, that some jurors instead of feeling
harassed, might revel in the attention of a post-trial interview,
especially if interviewed by the national press or media, and
disclose secrets or express misgivings, lingering doubts, or even
complaints about fellow jurors. This might lead jurors to
"imagin[e] sinister happenings which simply did not occur or [to]
say[] things which . . . would serve only to decrease public
confidence in verdicts." Id. at 665. The court, therefore,
concluded that supervision of interviews is desirable, not only
to protect jurors from harassment, but also to insure that the
inquiry does not range beyond subjects permissible for juror
testimony under Fed. R. Evid. 606(b).
The notes of the Advisory Committee with respect to
Fed. R. Evid. 606(b) support the district court's concern in this
case.
The mental operations and emotional reactions
of the jurors in arriving at a given result
would, if allowed as a subject of inquiry,
place every verdict at the mercy of jurors
and invite tampering and harassment.
* * * * *
Under the federal decisions the central focus
has been upon insulation of the manner in
which the jury reached its verdict, and this
protection extends to each of the components
of deliberation, including arguments,
statements, discussions, mental and emotional
reactions, votes, and any other feature of
the process.
28 U.S.C.A. § 606(b).
I agree that the second and third instructions are an
overstatement of the law which could unduly hamper a journalist
in an appropriate interview. I reach this conclusion, not
because there is an "absence of any finding by the court that
harassing or intrusive interviews are occurring," (Maj. Op. at
39) but because the limitations imposed by the court had the
effect of forbidding permissible inquiries that may not reach the
point of harassment, embarrassment, or intimidation. In giving
instructions on unsupervised interviews of jurors, findings are
not only unnecessary and burdensome, but potentially impossible
because the interviews will be conducted in the future. We must
bear in mind that the confidentiality of the thought processes of
jurors, their privileged exchange of views, and the freedom to be
candid in their deliberations are the soul of the jury system.
This interaction must be zealously guarded from any impermissible
encroachment if the system is to survive. If there is any
material error of law in a court's instruction to the jurors, the
injured party may obtain relief from the appellate court, as it
did here.
Because I agree that the court erred in issuing
instructions 2 and 3, I concur.