United States v. Wecht ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-1-2008
USA v. Wecht
Precedential or Non-Precedential: Precedential
Docket No. 07-4767
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 07-4767
UNITED STATES OF AMERICA
v.
CYRIL H. WECHT
WPXI, Inc;
TRIBUNE-REVIEW PUBLISHING COMPANY;
PG PUBLISHING COMPANY
d/b/a Pittsburgh Post-Gazette,
Appellants
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Judge: The Honorable Arthur J. Schwab
District Court No. 06-CR-26
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 8, 2008
1
Before: SMITH, FISHER, and VAN ANTWERPEN, Circuit
Judges
(Filed: August 1, 2008 )
David J. Berardinelli
Walter P. DeForest, III
DeForest, Koscelnik, Yokitis, Kaplan & Berardinelli
436 Seventh Avenue
3000 Koppers Building
Pittsburgh, PA 15219
Counsel for WPXI, Inc.
David A. Strassburger
Strassburger, McKenna, Gutnick & Potter, P.C.
444 Liberty Avenue
Suite 2200, Four Gateway Center
Pittsburgh, PA 15222
Counsel for Tribune Review Publishing Co.
David J. Bird
W. Thomas McGough, Jr.
Joseph F. Rodkey, Jr.
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
Counsel for PG Publishing Company
Amy L. Barrette
Jerry S. McDevitt
Jagan N. Ranjan
2
Mark A. Rush
Kirkpatrick & Lockhart Preston Gates Ellis LLP
535 Smithfield Street
Henry W. Oliver Building
Pittsburgh, PA 15222
Richard L. Thornburgh
Kirkpatrick & Lockhart Preston Gates Ellis LLP
1735 New York Avenue, N.W.
Suite 500
Washington, D.C. 20006
Counsel for Cyril Wecht
Rebecca R. Haywood
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for United States of America
OPINION
SMITH, Circuit Judge.
I.
We issue this opinion in support of our order filed on
3
January 9, 2008 in the matter of United States v. Wecht. WPXI,
Inc., PG Publishing Company, doing business as Pittsburgh
Post-Gazette, and Tribune-Review Publishing Co. (collectively,
the “Media-Intervenors”), filed a motion challenging an order of
the United States District Court for the Western District of
Pennsylvania announcing jury selection procedures to be used
at an impending criminal trial. Specifically, the Media-
Intervenors challenged the District Court’s decisions (1) to
empanel an anonymous trial jury, and (2) to conduct voir dire
through use of a written questionnaire and without
venirepersons physically present in an open courtroom until the
pool of prospective jurors was reduced to 40. In our January 9
order, we vacated the District Court’s order to the extent that it
restricts public access to the names of trial jurors or prospective
jurors.1 We denied all other relief sought.
1
Our order decreed that “juror and prospective jurors’
names” shall be disclosed prior to the swearing and
empanelment of the jury. The term “prospective juror” refers to
a member of the venire. The term “juror” refers to a member of
the venire who is chosen to be part of the actual trial jury. For
the sake of clarity, this opinion will use the term “trial jurors” to
describe people in the latter category. We also emphasize that,
referring to the names of “juror[s] and prospective jurors,” we
anticipated that the District Court’s disclosure would distinguish
between the names of trial jurors and those of prospective
jurors. It appears that in the disclosure that followed the entry
of our order, the District Court did not make such a distinction.
See Notice of Filing Prospective Juror List, United States v.
4
II.
On January 20, 2006, a grand jury returned an 84-count
indictment against Dr. Cyril H. Wecht. As we noted in deciding
an earlier interlocutory appeal in this matter, “[t]he 84-count
indictment asserts that [Wecht] unlawfully used his public office
as the coroner of Allegheny County, Pennsylvania, for private
financial gain.” United States v. Wecht, 484 F.3d 194, 198 (3d
Cir. 2007). The offenses charged included theft of honest
services, mail and wire fraud, and theft from an organization
receiving federal funds. The case was assigned to Judge Arthur
Schwab of the U.S. District Court for the Western District of
Pennsylvania. During a pretrial conference on July 12, 2006,
the parties reported to the District Court that they had agreed to
use a 24-page questionnaire containing 69 questions in the jury
selection process.2
The following day, on July 13, 2006, the Board of Judges
Wecht, No. 06-CR-26 (W.D. Pa. Jan. 23, 2008).
2
In May of 2006, the Media-Intervenors moved to
intervene in an effort to unseal certain court filings. In response
to those motions, the Court unsealed certain documents. Wecht
and the Government appealed several rulings, and Wecht filed
a petition for mandamus seeking review of the District Court’s
denial of his motion to recuse. See United States v. Wecht, 484
F.3d 194 (3d Cir. 2007). Pretrial preparation proceeded in the
District Court during the pendency of those appeals.
5
for the Western District of Pennsylvania entered an
administrative order directing that “all jurors shall be identified
in court during the jury selection process by his/her assigned
juror number ONLY. A prospective juror shall no longer be
identified by or identify himself or herself by name.” In re Jury
Administration Procedures, Misc. 06-211 (W.D. Pa. July 13,
2006). The order further provided that “any and all juror lists
generated by this Court for use in the jury selection process shall
be deemed confidential and property of the Court and shall not
be removed from the Court at any time.” Id. The juror lists
were available only to counsel who were required to execute a
receipt for the list and to return it upon completion of jury
selection.
A day later, on July 14, Judge Schwab issued a pretrial
order addressing the use of the jury questionnaire and
establishing procedures to be employed during voir dire.
Section A of the order noted that the summons to be issued to
prospective jurors would be mailed together with the final juror
questionnaire, a cover letter from the Court, and instructions.
Section B of the order pertained to the jury questionnaire
procedure. Paragraph 5 of Section B of the order stated:
“Pursuant to the decision of the Board of Judges of this District,
counsel shall not have access to the names and addresses of the
prospective jurors. Therefore, Jury Administrator Morder is
instructed to remove and retain the last page of the Jury
Questionnaire setting forth the prospective jurors’ names and
current addresses.” Although this directive was more restrictive
6
than the July 13, 2006 standing order, neither Wecht nor the
Government objected. Paragraph 6 of Section B of the order
scheduled a hearing for September 19, 2006, to permit counsel
to review the completed jury questionnaires, albeit without the
names and addresses of the jurors, and to confer among
themselves as to prospective jurors that they did not believe
should be part of the venire. Jury selection was scheduled for
October 11, 2006.
In mid-September, after hearing oral arguments in the
first Wecht appeal, this Court granted a stay of the trial pending
its resolution of the various appeals. United States v. Wecht, No.
06-3098 (3d Cir. Sept. 15, 2006). As a result, the 300 venire
members who had been summoned were released. After we
issued our mandate, Judge Schwab entered an order on
November 26, 2007, announcing the jury selection procedures
he would follow. The order stated in the first paragraph that the
“jury will be anonymous.” The Court directed the jury
administrator to issue 400 summonses. This time, however, the
summons would not be accompanied by the juror questionnaire.
Instead, the venire members would be called in groups of sixty
to appear in the jury assembly room where they would receive
the standard jury orientation and complete the jury questionnaire
fashioned for this case. During the afternoon of each session,
the jury administrator would provide four copies of the
completed jury questionnaire to the District Court. The Court
would then provide the questionnaire to counsel to review for
the purpose of making challenges for cause and obtaining
7
information for peremptory challenges. The District Court
instructed that it would rule on any challenges for cause each
afternoon or the following morning. Final selection of the petit
jury was tentatively scheduled to begin on January 23, 2008,
during which the parties would exercise their peremptory
challenges.
Wecht objected inter alia to jury anonymity, the
limitation on access to the questionnaires, and the fact that the
District Court’s order did “not indicate whether the voir dire
questions will be given to each group in open court or even at all
prior to the for cause determinations . . . . ” In a subsequent
filing, Wecht objected to the removal of the signature page from
the jury questionnaire and requested that each prospective juror
be subject to voir dire in open court. On December 4, the
Media-Intervenors filed a petition with the District Court
objecting to the anonymous jury and the lack of in-person,
public voir dire in open court.
On December 21, 2007, Judge Schwab issued a 64-page
order reviewing the procedural history relative to jury selection
and voir dire. Order of Court Re: Jury Selection, Voir Dire, And
Other Pretrial Issues, No. 2:06-cr-00026-AJS (W.D. Pa. Dec. 21,
2007) (“Dec. 21 Order”). In this order, Judge Schwab reiterated
his earlier declaration that the “jury will be anonymous,” but
8
noted that he preferred the term “innominate jury.” 3 Dec. 21
Order at 21 n.5. Additionally, Judge Schwab opined that the
voir dire process would provide the parties with ample
information about the jurors. Dec. 21 Order at 21 n.5. After
setting forth the factors to be considered in deciding whether to
empanel an anonymous jury, Judge Schwab adhered to his
earlier ruling to empanel such a jury. Dec. 21 Order at 28–30.
Noting that the Media-Intervenors had challenged the Board of
Judges’ order (Misc. 06-211) as unconstitutional, he disclaimed
any reliance on this order as the basis of his decision. Dec. 21
Order at 18 n.4.
In his December 21 order, Judge Schwab also explained
that “[t]he court will be reviewing the Jury Questionnaire in
open court at the same time as counsel, so rulings may be made
on the record, with media in attendance to hear the reason(s) for
3
Judge Schwab provided two reasons for his preference
for this term. First, he said that the term “anonymous”
inappropriately connoted a “clandestine, forbidden, and
obscure” jury panel.” Dec. 21 Order at 21 n.5 (quoting United
States v. Carpa, 271 F.3d 962, 963 n.1 (11th Cir. 2001)).
Second, he suggested that the jury was not really anonymous
because the parties knew everything about the jurors but their
names. Id. (citing United States v. Bowman, 302 F.3d 1228,
1236 (11th Cir. 2002)). Judge Schwab nonetheless uses the
terms “anonymous” and “innominate” interchangeably in his
December 21 order. In this opinion, we will use the term
“anonymous.”
9
each ‘for cause’ dismissal, by juror number.” Dec. 21 Order at
33. The order further noted that “the Court, as it always has
done throughout this case, will provide the media access to the
Courtroom during the six (6) day initial jury selection process
(including all rulings on the record re: ‘for cause’ decisions);
and during voir dire process of the pool of 40 jurors using the
individual voir dire questions . . . .” Dec. 21 Order at 37.
Judge Schwab explained that “the final jury selection
process will commence on January 23, 2008, and copies of the
completed Jury Questionnaires of the pool of 40 prospective
jurors will be returned only to the counsel, parties, and the Court
(with a copy of the last page of the Jury Questionnaire
identifying the names and addresses in order by juror number).”
Dec. 21 Order at 44. During this final stage of the process, the
District Judge noted that he would ask ten voir dire questions of
each prospective juror. Dec. 21 Order at 40–41 (listing the
questions). The order specified that the Media-Intervenors
would, at the conclusion of the trial, be given access to review
the jury questionnaire, excluding the last page which contained
the juror’s name and address. Dec. 21 Order at 34–35. The
order contains no indication that the Media-Intervenors would
be given access to the names or addresses of the prospective and
trial jurors at any time before or after Wecht’s trial.
The Media-Intervenors timely appealed the December 21
order. They moved for summary reversal under Third Circuit
Internal Operating Procedure (“I.O.P.”) 10.6 or, in the
10
alternative, for a stay of jury selection. See Media’s Emergency
Motion, United States v. Wecht, No. 07-4767 (3d Cir. Dec. 26,
2007).4 The Government filed a response opposing the motion
(Government’s Response, United States v. Wecht, No. 07-4767
(3d Cir. Jan. 2, 2008)5 ), and Wecht filed a Response supporting
it (Wecht’s Response, United States v. Wecht, No. 07-4767 (3d
Cir. Jan. 2, 2008)6 ). The motions panel referred the matter to a
merits panel on January 2, 2008, deeming the parties’
submissions on the motion to be their legal briefs and offering
4
The full title of this application is “The Media’s
Emergency Motion For Summary Reversal Of The District
Court’s Order Dated December 21, 2007, Or, In The
Alternative, Expedited Relief In The Form Of A Stay Of Jury
Selection And Trial Proceedings Pending Disposition Of This
Appeal.”
5
The full title is “Government’s Response To The
Media’s Emergency Motion For Summary Reversal Of The
District Court’s Order Dated December 21, 2007, Or, In The
Alternative, Expedited Relief In The Form Of A Stay Of Jury
Selection And Trial Proceedings Pending Disposition [Of] This
Appeal.”
6
The full title is “Cyril H. Wecht’s Response To The
Media’s Emergency Motion For Summary Reversal Of The
District Court’s Order Dated December 21, 2007, Or, In The
Alternative, Expedited Relief In The Form Of A Stay Of Jury
Selection And Trial Proceedings Pending Disposition Of This
Appeal.”
11
the parties an opportunity to file supplemental briefs. See Order,
United States v. Wecht, No. 07-4767 (3d Cir. Jan. 2, 2008).
After the Media-Intervenors filed a Reply to the Government’s
Response (Media’s Reply, United States v. Wecht, No. 07-4767
(3d Cir. Jan. 4, 2008)7 ), all of the parties submitted letters stating
that they would rely on their previous filings as their briefs on
the merits.8 In an order filed on January 9, 2008, we declared
that
[t]o the extent that the District Court’s order
restricts access of Media Intervenor-Appellants
and defense counsel to the names of prospective
jurors who participate in the selection process
prescribed by the District Court, those provisions
7
The full title of the Media’s Reply is “The Media’s
Reply in Support of Emergency Motion for Summary Reversal
of the District Court's Order dated December 21, 2007, or, in the
Alternative, Expedited Relief in the Form of a Stay of Jury
Selection and Trial Proceedings Pending Disposition of this
Appeal.”
8
The dissent argues that we would have benefitted from
“additional briefing” given the fact that the parties’ original
filings focused on the Media-Intervenors’ request for summary
reversal or a stay. Dissent, infra, at 58 n.44. As noted above,
we offered the parties an opportunity to file supplemental briefs
after the matter was referred to a merits panel, and they chose to
rely on their previous filings.
12
of the order are VACATED. We leave to the
discretion of the District Court the method and
timing of disclosure of juror and prospective
jurors’ names, except that disclosure of those
names shall be made prior to the swearing and
empanelment of that jury.9
Order, United States v. Wecht, No. 07-4767 (3d Cir. Jan. 9,
2008). We denied any other relief relative to the voir dire
proceedings. Id. We denied the motion for a stay as moot
because our order was issued prior to the commencement of
trial. Id.III.
We have jurisdiction to review the Media-Intervenors’
motion under 28 U.S.C. § 1291 and the “collateral order”
doctrine.10 See Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
9We noted that Media-Intervenors were “not seeking
access to the jurors’ home addresses or the actual jury
questionnaire.” Order at 2 n.1, United States v. Wecht, No. 07-
4767 (3d Cir. Jan. 9, 2008). For that reason, we do not address
those issues here.
10
In our January 9 order, we stated: “Appellate
jurisdiction exists under the collateral order doctrine.” Order at
2, United States v. Wecht, No. 07-4767 (3d Cir. Jan. 9, 2008)
(citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 54113
541, 546–47 (1949). Under 28 U.S.C. § 1291, “[t]he courts of
appeals . . . shall have jurisdiction of appeals from all final
decisions” of district courts. Ordinarily, this rule “prohibits
appellate review until conviction and imposition of sentence” in
a criminal case. Flanagan v. United States, 465 U.S. 259, 263
(1984). The category of “final decisions” subject to appellate
review under § 1291 also includes, however, “collateral orders”
that (1) “conclusively determine the disputed question,” (2)
“resolve an important issue completely separate from the merits
of the action,” and (3) are “effectively unreviewable on appeal
from a final judgment.” Coopers & Lybrand v. Livesay, 437
U.S. 463, 468–69 (1978). When deciding whether an order is
appealable as a collateral order under § 1291, we give this
provision of the statute a “practical rather than a technical
construction.” Cohen, 337 U.S. at 546.
In United States v. Schiavo, we held that a District
Court’s order restricting the media from publishing certain
information about a criminal trial was appealable under the
collateral order doctrine because it “determined a matter
independent of the issues to be resolved in the criminal
proceeding itself, bound persons who were non-parties in the
(1949)). Our dissenting colleague now argues that the collateral
order doctrine did not provide us with jurisdiction to hear this
appeal. See Dissent, infra, at 2–19. We are surprised that he did
not raise this purported jurisdictional defect in his dissent to our
January 9 order.
14
underlying criminal proceeding and had a substantial, continuing
effect on important rights.” 504 F.2d 1, 4–5 (3d Cir. 1974) (en
banc). In United States v. Cianfrani, we applied Schiavo to
permit collateral order jurisdiction over the media’s challenge to
orders excluding the public and the press from a pretrial hearing
and sealing the record. 573 F.2d 835, 845 (3d Cir. 1978) (citing
Schiavo, 504 F.2d at 4). The Government has challenged our
exercise of jurisdiction, relying in large part on Flanagan, in
which the Supreme Court held that we must interpret the
requirements of the collateral order doctrine “with the utmost
strictness in criminal cases” because of “the compelling interest
in prompt trials” and the delays that an appeal is likely to
create.11 465 U.S. at 265. Flanagan instructs us to defer appeal
until final judgment in a criminal case unless the matter involves
“an asserted right the legal and practical value of which would
be destroyed if it were not vindicated before trial.” Id. at 266(citations and internal quotation marks omitted). At the time
Flanagan was decided, the Supreme Court had found only three
types of pretrial orders to meet the requirements of the collateral
order doctrine: (1) an order denying a motion to reduce bail; (2)
11
We note that our decision to grant review in this case
does not threaten “the compelling interest in prompt trials.” 465
U.S. at 265. Because we declined to grant the media’s request
for a stay, and because releasing the jurors’ names did not create
a time-consuming burden for the District Court, our ruling has
posed no danger to the interests of either Wecht or the public in
a speedy trial.
15
an order denying a motion to dismiss an indictment on double
jeopardy grounds; and (3) an order denying a motion to dismiss
an indictment on speech or debate grounds. Id. at 265–66. In
Sell v. United States, 539 U.S. 166, 176–77 (2003), the Court
recognized that an order to forcibly medicate a defendant during
trial also meets the requirements for collateral order jurisdiction.
What these orders have in common is that neither an acquittal,
a post-trial reversal of a conviction, nor any other result can
adequately redress the harm that these orders cause. See
Flanagan, 465 U.S. at 266–67. The Supreme Court has not
addressed, post-Flanagan, whether a right of access claim raised
by a media outlet in a criminal case would satisfy the collateral
order doctrine.12 The issue before us, therefore, is not only
12
In ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004), the
Second Circuit held that an order affecting the right of access in
a criminal case was appealable under the collateral order
doctrine. Id. at 97. Without mentioning Flanagan, the court
deemed the order appealable for two reasons. First, the court
said that the district court had “in effect allowed the Media
Coalition to intervene in the pending criminal proceeding for the
limited purpose of challenging” the order, and that the order was
therefore final and appealable as to the intervenors. Id. (citing
In re Herald Co., 734 F.2d 93, 96 (2d Cir. 1984)). Second, the
court said that because the Media Coalition’s claims “could have
been treated by the district court as a new civil case, as opposed
to an intervention in the pending criminal case, and the orders
would have been final in that case[,] [n]o jurisdictional
significance should attach simply because the district court
16
whether the instant order would be appealable under the
principles of Schiavo and Cianfrani, but also whether Flanagan
has effectively overruled these cases.
Because Flanagan has its greatest impact on the third
requirement of the collateral order doctrine (i.e., that the
decision must be “effectively unreviewable on appeal from a
final judgment”), we address this requirement first. We
conclude that it would be impossible for us to vindicate the
public’s asserted right of access if we foreclosed appeal of this
matter until after the final judgment. As with the orders
discussed in Flanagan and Sell, the potential harm caused by an
improper order restricting the public’s right of access to a
criminal trial is not adequately redressable on appeal after final
judgment, regardless of the trial’s outcome. We have observed
in similar cases that “contemporaneous review [of judicial
proceedings] by the public ‘is an effective restraint on possible
abuse of judicial power.’” United States v. Smith, 787 F.2d 111,
113 (3d Cir. 1986) (quoting Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 596 (1980) (Brennan, J., concurring in
the judgment)); see also Republic of Philippines v.
Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 1991);
United States v. Criden, 648 F.2d 814, 821 (3d Cir. 1981).
Knowledge of jurors’ identities aids public review by enabling
chose to treat appellants as intervenors in the criminal
proceeding.” Id. (citing In re New York Times Co., 828 F.2d
110, 113 (2d Cir. 1987)).
17
the public to “verify the impartiality of key participants in the
administration of justice.” In re Globe Newspaper Co., 920
F.2d 88, 94 (1st Cir. 1990).
The Government argues that we can fully vindicate any
such right via post-trial release of information, allowing us to
defer review until the final judgment. Although post-trial
release of information may be better than none at all, the value
of the right of access would be seriously undermined if it could
not be contemporaneous. See, e.g., Grove Fresh Distribs. v.
Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (“To delay
or postpone disclosure undermines the benefit of public scrutiny
and may have the same result as complete suppression.”). We
do not suggest, of course, that public disclosure of information
related to judicial proceedings m ust alw ays be
contemporaneous, given the interests in security and the other
grave concerns that might outweigh the right of access in a
particular case. Indeed, “stronger reasons to withhold juror
names and addresses will often exist during trial than after a
verdict is rendered.” Globe Newspapers, 920 F.2d at 91(emphasis in original). But the value of contemporaneous
disclosure, as opposed to post-trial disclosure, is significant
enough to justify our immediate review of the matter under the
collateral order doctrine. Accordingly, we decline to hold that
Flanagan undermines our conclusion in Schiavo and Cianfrani
that right of access claims are immediately appealable.
We turn now to the other requirements for application of
18
the collateral order doctrine. The first requirement is that the
order must “conclusively determine the disputed question.”
Coopers & Lybrand, 437 U.S. at 468. We cannot review any
decision that is “tentative, informal or incomplete.” Cohen, 337
U.S. at 546. The District Court’s December 21, 2007 order is a
conclusive determination that the names of prospective jurors
will not be available to the Media-Intervenors at any time before
or after the trial and that voir dire will be conducted by written
questionnaire until the pool of jurors is reduced to forty.13 We
reach this conclusion based on the fact that the 64-page order
explicitly considers and rejects the Media-Intervenors’
objections to this procedure. There is no reason to believe that
any subsequent developments would have led the District Court
to reconsider its conclusion.14 The Government does not dispute
13
The Dec. 21 Order does not explicitly address whether
the venirepersons will be present when counsel reviews the jury
questionnaire in open court.
14
The dissent argues that the December 21 order was not
final because if the Media-Intervenors or the defendant had
petitioned for modification of the December 21 order, “they may
well have been successful.” Dissent, infra, at 9. Given the fact
that the District Court had already considered and rejected their
arguments, we find it unlikely that they could have achieved the
desired modification by making these arguments again. Of
course, it was theoretically possible that the District Court would
have modified the December 21 order, either in response to a
petition for modification or sua sponte. This possibility does not
19
that the District Court’s order conclusively determined the
question.15 See Government’s Response at 8–9 (“the order
regarding jury selection procedures may satisfy the first
requirement of the collateral order doctrine, i.e., conclusively
determining the disputed question . . .”). Accordingly, we
conclude that the District Court’s order satisfies the first
requirement of the collateral order doctrine.
The second requirement is that the order “resolve an
important issue completely separate from the merits of the
eliminate finality, however, because the first requirement of the
collateral order doctrine may be satisfied when “there is no basis
to suppose that the District Judge contemplated any
reconsideration of his decision.” Moses H. Cone Mem. Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 12–13 (1983). Because the
District Court’s December 21 order indicates that it is intended
to be the final word on the Media-Intervenors’ objections, it was
final for purposes of the collateral order doctrine.
15
We recognize that the Government’s failure to
challenge the finality of the order is not dispositive, since it is
always our duty to ensure that we are properly exercising
jurisdiction. To the extent that the finality of the order is a
factual issue, however, the Government may be in a better
position than we are to evaluate whether the District Court
would have considered a request for modification. Therefore,
its decision not to challenge this requirement of the collateral
order doctrine is notable.
20
action.” Coopers & Lybrand, 437 U.S. at 468. This is
sometimes divided into two sub-requirements: (a) the issue must
be important; and (b) the issue must be completely separate from
the merits of the action. The Supreme Court has defined an
important issue as one involving interests that are “weightier
than the societal interests advanced by the ordinary operation of
final judgment principles,” Digital Equip. Corp. v. Desktop
Direct, 511 U.S. 863, 879 (1994), or one that is “serious and
unsettled,” Cohen, 337 U.S. at 547.16 We believe that the
question of when a district court may withhold the names of
jurors and the content of voir dire proceedings from the public
during a criminal trial is important enough to satisfy the first
sub-requirement. The District Court’s order implicates the
public’s right of access to judicial proceedings, which is a
constitutional interest of sufficient weight to permit the
possibility of departing from ordinary final judgment principles.
Like the orders at issue in Schiavo and Cianfrani, the instant
16
At times, courts have treated importance as a fully
independent requirement of the collateral order doctrine. See,
e.g., Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (“As an
additional requirement, Cohen established that a collateral
appeal of an interlocutory order must ‘[present] a serious and
unsettled question.’” (quoting Cohen, 337 U.S. at 547)). The
exact role of the importance requirement in the analysis has been
the subject of debate. See generally 15A Charles Alan Wright,
et al., Federal Practice and Procedure § 3911.5 (2d ed. 1992).
21
order has “a substantial, continuing effect on important rights.” 17
See Cianfrani, 573 F.2d at 845; Schiavo, 504 F.2d at 5.
Moreover, as we make clear in our substantive discussion
below, the precise question in this case is unsettled. Thus, the
sub-requirement that the issue must be “important” is satisfied.
The issue is also completely separate from the merits of
the action, i.e., Wecht’s guilt or innocence. We have repeatedly
held that orders restricting public access to information are
separate from the underlying issues in criminal trials. See, e.g.,
Cianfrani, 573 F.2d at 841 (concluding that the media’s appeal
of an order barring the public from a pretrial suppression
hearing and sealing the record of that hearing was separate from
the merits of the underlying criminal proceeding); Schiavo, 504
F.2d at 5 (concluding that an order purporting to enjoin
newspapers from publishing information “determined a matter
17
In a footnote, the Government “questions the
importance of the Media’s ability to write articles that include
jurors’ names as opposed to articles without them.” See
Government’s Response at 9 n.6. As we explain below,
however, the release of juror names can be an important part of
the public’s right of access. In the words of the First Circuit in
In re Globe Newspaper Co., “[k]nowledge of juror identities
allows the public to verify the impartiality of key participants in
the administration of justice, and thereby ensures fairness, the
appearance of fairness and public confidence in that system.”
920 F.2d 88, 94 (1st Cir. 1990).
22
independent of the issues to be resolved in the criminal
proceeding itself”). The Government objects that the anonymity
of the jury is “intimately tied to the merits” because “the jury is
the entity that will decide the ultimate issues of guilt or
innocence in this case.” Government’s Response at 9. But the
relevant question is whether the issues presented in the Media-
Intervenors’ right of access claim are tied to Wecht’s guilt or
innocence, not whether the appealed issue and the merits
involve the same “entity.” In Sell v. United States, the Supreme
Court found that the issue of whether the defendant must be
forcibly medicated in order to stand trial was separate from the
merits, even though the District Court had found that the
medication served “the government’s compelling interest in
obtaining an adjudication of defendant’s guilt or innocence.”
539 U.S. 166, 174–76 (2003); see also 539 U.S. at 192 (Scalia,
J., dissenting) (agreeing that the medication order resolved “an
important issue separate from the merits” despite concluding
that the order did not satisfy the third prong). Similarly, in this
case, the District Judge may have believed that establishing jury
anonymity would aid the determination of guilt or innocence,
but the anonymity issue is nonetheless separate from any issue
presented by the merits. Thus, we believe that the sub-
requirement that the issue be “completely separate from the
merits of the action” is satisfied in this case.18
18
The Government cites several cases in support of a
contrary conclusion. First, it cites Sell for the proposition that
an issue satisfies the “completely separate” requirement only
23
The Government presents two additional challenges to
our ability to hear this appeal. First, the Government argues that
the media lacks standing because it “does not have a public right
of access under the First Amendment or the common law to the
jurors’ names and/or the jurors’ questionnaires” and thus
suffered no “injury in fact.” Government’s Response at 11–12.
when it is separate “from questions concerning trial procedures.”
539 U.S. at 176. Sell does not define a “trial procedure” or
explain whether this means something different from being
separate from the merits. In any case, we have discussed Sell
above and concluded that it supports the conclusion that jury
anonymity is completely separate from Wecht’s guilt or
innocence. Second, the Government cites United States v.
McVeigh, 106 F.3d 325, 332 (10th Cir. 1997), which held that
an order barring victim-impact witnesses from observing the
guilt phase of a capital trial was not separate from the merits of
the action. We decline to rely on McVeigh, however, because it
interprets the Criminal Appeals Act, 18 U.S.C. § 3731, rather
than the collateral order doctrine. 106 F.3d at 329; see also id.
at 331 (“. . . when the government seeks review in a criminal
case, concerns unaddressed by Cohen come into play.”). Third,
the Government cites dicta from United States v. Green, 407
F.3d 434, 438 (1st Cir. 2005), which addresses the government’s
attempt to appeal from a pretrial order establishing two separate
juries for guilt and sentencing. Like McVeigh, Green involves
a government appeal in a criminal case, and thus would not be
controlling even if it were a holding from our own circuit rather
than dicta from another.
24
Because we conclude that the Media-Intervenors have a right to
the jurors’ names, for the reasons discussed below, we reject this
argument and conclude that the Media-Intervenors have
standing.19 The Media-Intervenors do not have standing,
however, to challenge directly the constitutionality of the Board
of Judges’ order (Misc. 06-211), because the District Court did
not rely on this as a basis for its decision.20 See Dec. 21 Order
at 18 n.4. Second, the Government argues that as a prudential
matter, we should dismiss the Media-Intervenors’ appeal as
19
Contrary to the Government’s suggestion, the Media-
Intervenors are not seeking access to the questionnaires, so we
need not consider whether they have a “right” to access them for
standing purposes. Pursuant to Press-Enterprise I, the Media-
Intervenors have at least a presumptive right of access to voir
dire proceedings, so we conclude that they have standing to the
extent that they claim that they challenge the District Court’s
voir dire rulings on right of access grounds.
20
The District Court states later in its order that “in
accordance with Misc. Rule 06-211, the Court (and no counsel
or party) will neither read nor state the names or addresses of
prospective jurors in open court, nor will they provide the media
or any person or party access to the names or addresses of the
prospective or empaneled jurors.” Dec. 21 Order at 37. Despite
this, it appears that the District Court did not rely on Misc. 06-
211 even if it might have acted “in accordance with” it. Thus,
we will not consider the constitutionality of Misc. 06-211 in our
evaluation of the District Court’s order.
25
untimely because they did not appeal until December 2007,
shortly before trial was scheduled to begin in January 2008.
Government’s Response at 12–13. The Government asserts that
the District Court had made its intention to establish an
anonymous jury clear in July 2006, one-and-a-half years before
the Media-Intervenors appealed. The Media-Intervenors
respond that the July 2006 order did not clearly establish that the
jury would be anonymous, and in any event was not a final order
since it explicitly indicated that it was subject to modification.
Media’s Emergency Motion at 6–7. Because the media acts as
a surrogate for the public in asserting a right of access, see
Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980),
we decline to reject the appeal even assuming arguendo that the
Media-Intervenors were not diligent in asserting this right.
IV.
The Media-Intervenors seek reversal of the order because
it requires that the prospective and trial jurors be anonymous and
because it creates a voir dire process that relies solely on written
questionnaires without jurors being physically present in the
courtroom prior to reduction of the venire to a pool of forty.
Because they rely primarily on arguments that the First
Amendment creates a right of access that requires disclosure of
jurors’ names and the conducting of voir dire in open court,21 we
21
The Media-Intervenors also state that the common law
or the Third Circuit’s supervisory powers establish a right of
26
briefly review the right of access jurisprudence of the Supreme
Court and our court.
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555(1980), the Supreme Court22 held that “the right to attend
criminal trials is implicit in the guarantees of the First
Amendment” because “without the freedom to attend such trials,
which people have exercised for centuries, important aspects of
freedom of speech and ‘of the press could be eviscerated.’” 448
U.S. at 580 (quoting Branzburg v. Hayes, 408 U.S. 665, 681
access to criminal proceedings that includes disclosure of the
jurors’ names and voir dire in open court. Media’s Emergency
Motion at 10–11 (citing In Re The Baltimore Sun Co., 841 F.2d
74 (4th Cir. 1988) (common law); United States v. Criden, 675
F.2d 550 (3d Cir. 1982) (supervisory powers)). They do not,
however, make a serious effort to develop these alternative
grounds for a right of access aside from their citations to these
cases. Thus, we will focus only on their argument that a right of
access exists under the First Amendment.
22
Although no opinion in Richmond Newspapers
commanded a majority, seven of the eight justices who
participated in the case recognized that the First Amendment
embodies a right to attend criminal trials. See 448 U.S. at558–81 (plurality opinion); id. at 584–98 (Brennan, J.,
concurring in judgment); id. at 598–601 (Stewart, J., concurring
in judgment); id. at 601–04 (Blackmun, J., concurring in
judgment).
27
(1972)). The Court said that this right encompassed both a
“right of access” and a “right to gather information,” and that
the media’s right is no less important than that of the general
public. Id. at 576–77 & n.12. In Press-Enterprise Co. v.
Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise I”), the
Supreme Court held that this right of access and to gather
information applies to voir dire in criminal trials as well. 464
U.S. at 508. The Court explained that “[t]he presumption of
openness may be overcome only by an overriding interest based
on findings that closure is essential to preserve higher values
and is narrowly tailored to serve that interest” and that “[t]he
interest is to be articulated along with findings specific enough
that a reviewing court can determine whether the closure order
was properly entered.” 464 U.S. at 510.
To determine what aspects of a criminal trial are subject
to a presumptive right of public access under the First
Amendment, the Court created the “experience and logic” test
in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9
(1986) (“Press-Enterprise II”). This test requires courts to
weigh two “complementary considerations.” Id. at 8. Under the
“experience” prong, a court considers “whether the place and
process have historically been open to the press and general
public.” Id. Under the “logic” prong, a court considers
“whether public access plays a significant positive role in the
functioning of the particular process in question” by, inter alia,
enhancing “both the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the
28
system.” Id. at 8–9 (citation omitted). If an aspect of a criminal
trial “passes these tests of experience and logic, a qualified First
Amendment right of public access attaches.” Id. at 9–10. As
Press Enterprise I made clear, even when such a right of access
exists, it is merely presumptive and may be overcome if the
District Court articulates specific facts that justify closure.
Whether there is a First Amendment right to have access
to a particular aspect of a judicial proceeding is a question of
law that we review de novo. See United States v. Antar, 38 F.3d
1348, 1356–57 (3d Cir. 1994). Outside of the First Amendment
context, we use an abuse of discretion standard to review a
District Court’s decisions regarding jury anonymity, United
States v. Scarfo, 850 F.2d 1015, 1023 (3d Cir. 1988), and its
conduct of voir dire, Butler v. City of Camden, 352 F.3d 811,
815 (3d Cir. 2003).23 To the extent that we consider whether the
District Court has articulated findings sufficient to overcome a
presumptive right of access under the First Amendment,
however, we conduct “substantially broader” review that
“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)
(citing Bose Corp. v. Consumers Union, 466 U.S. 485, 499
23
We point out that the First Amendment right of access
that the Media-Intervenors assert is distinct from a defendant’s
Sixth Amendment right to challenge the use of an anonymous
jury.
29
(1984); New York Times Co. v. Sullivan, 376 U.S. 254, 285
(1964)); see also Antar, 38 F.3d at 1357; United States v. Smith,
787 F.2d 111, 113 n.1 (3d Cir. 1986).
V.
The Media-Intervenors argue that the First Amendment
requires disclosure of the jurors’ names prior to empanelment of
the jury in this case. This question is one of first impression in
our circuit.24 Following the framework established in Press-
24
Some have argued that the Supreme Court settled this
question in Press-Enterprise I by implying that jurors’ names
are an inseparable component of voir dire. Discussing a
potential conflict between the First Amendment presumption of
openness for voir dire, and jurors’ privacy interests, the Court
said:
When limited closure [of voir dire] is ordered, the
constitutional values sought to be protected by holding
open proceedings may be satisfied later by making a
transcript of the closed proceedings available within a
reasonable time, if the judge determines that disclosure
can be accomplished while safeguarding the juror’s valid
privacy interests. Even then a valid privacy right may
rise to a level that part of the transcript should be sealed,
or the name of a juror withheld, to protect the person
from embarrassment.
30
Enterprise II, we will examine first whether the “experience and
logic” test supports a conclusion that the presumptive right of
access to criminal proceedings includes a right of access to
jurors’ names. See Press-Enterprise II, 478 U.S. at 7–10. If so,
we will examine whether this presumption of openness is
overcome by particularized findings in the record “establishing
the existence of a compelling government interest,” and
“demonstrating that absent limited restrictions on the right of
access, that other interest would be substantially impaired.”
Antar, 38 F.3d at 1359 (citing Press-Enterprise II, 478 U.S. at
15).
A.
The first question before us is whether the “experience
464 U.S. at 512 (emphasis added). Arguably, this passage can
be “read to imply that jurors’ identities are part and parcel of
voir dire, and as such are governed by the same principles of
presumptive access.” Beacon Journal v. Bond, 781 N.E.2d 180,
192 (Ohio 2002) (quoting David Weinstein, Protecting a Juror’s
Right to Privacy: Constitutional Constraints and Policy
Options, 70 T EMPLE L. R EV. 1, 30 (1997)). See also Gannett
Co., Inc. v. State of Delaware, 571 A.2d 735, 755 (Del. 1990)
(Walsh, J., dissenting). Although this argument is plausible, we
will not conclude from a single passage of Supreme Court dicta
that the question is decisively settled. Rather, we treat the
question as unsettled and proceed with the “experience and
logic” analysis required by Press-Enterprise II.
31
and logic” test establishes the existence of a presumptive First
Amendment right of access to obtain the names of both trial
jurors and prospective jurors prior to empanelment of the jury.
We conclude that it does.
1. Experience
In Press-Enterprise I, the Supreme Court traced the
development of the jury selection process from the days “before
the Norman Conquest,” and concluded that “since the
development of trial by jury, the process of selection of jurors
has presumptively been a public process with exceptions only
for good cause shown.” 464 U.S. 505–08. Although this
historical evidence helps to show that voir dire is traditionally
a public process, it does not necessarily establish that the jurors’
names were also known to the public. The Media-Intervenors
point out that “there is no suggestion in . . . Press-Enterprise I
that the names of the jurors were not equally open to the public
as the other parts of the voir dire process.” Media’s Emergency
Motion at 11–12. This is true, but the opinion contains no
suggestion to the contrary, and we are reluctant to draw
conclusions solely based on the Court’s silence about a question
that was not before it.
Because juries have historically been selected from local
populations in which most people have known each other,
however, the traditional public nature of voir dire strongly
suggests that jurors’ identities were public as well. Case law
32
and legal commentary confirm this suggestion. See In Re
Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1998) (“When the
jury system grew up with juries of the vicinage, everybody knew
everybody on the jury . . . ,” so requiring the public disclosure of
the names of trial and prospective jurors upon empanelment is
“no more than an application of what has always been the law
. . . .”)25 ; David Weinstein, Protecting A Juror’s Right to
Privacy: Constitutional Constraints and Policy Options, 70
T EMP. L. R EV. 1, 30 (1997) (“The names of jurors have been
available to the public throughout the history of the common
law. . . . Moreover, the records of early jury trials evince little
concern for protecting juror anonymity.”); Robert Lloyd
Raskopf, A First Amendment Right of Access to a Juror’s
Identity: Toward a Fuller Understanding of the Jury’s
Deliberative Process, 17 P EPP. L. R EV. 357, 370 (1990) (“An
examination of historical tradition indicates that jurors’
identities and places of residence traditionally have been known
to the public.”). We find it significant that instances of courts
withholding jurors’ names appear to be very rare before the
1970s. See, e.g., Ephraim Margolin & Gerald F. Uelmen, The
Anonymous Jury: Jury Tampering By Another Name?, 9 C RIM
J UST. 14, 14 (1994) (“Juror anonymity is an innovation that was
unknown to the common law and to American jurisprudence in
25
The Fourth Circuit’s Baltimore Sun opinion ultimately
rests on the common law rather than on the First Amendment.
841 F.2d at 76 n.4. Nonetheless, its historical evidence is useful
for our analysis of the “experience” prong.
33
its first two centuries.”). Neither the District Court nor the
Government cite any such cases in their discussion of the
“experience” prong. See Dec. 21 Order at 26; Government’s
Response at 16–18. Moreover, none of the federal and state
opinions that analyze the “experience” prong have cited any pre-
1970s cases in which jurors’ names were not publicly known
prior to empanelment. See, e.g., United States v. Black, 483
F. Supp. 2d 618, 623–26 (N.D. Ill. 2007); Commonwealth v.
Long, 922 A.2d 892, 901–03 (Pa. 2007); Beacon Journal v.
Bond, 781 N.E.2d 180, 193 (Ohio 2002); Gannett Co., Inc. v.
State of Delaware, 571 A.2d 735, 743–48 (Del. 1990). Such
cases exist,26 but they are rare. 27 Based on the evidence before
26
For example, in Hamer v. United States, 259 F.2d 274(9th Cir. 1958), the Ninth Circuit upheld a 1951 order of the
United States District Court for the Southern District of
California that prohibited revelation of the names and addresses
of jurors and prospective jurors to anyone, including the
defendant, prior to trial. Id. at 277–80.
27
We agree with the observation of the dissenting judge
in Gannett Co., 571 A.2d at 757–58, that even if a few cases
exist in which courts kept jurors’ names private, this would not
by itself prove that no tradition of openness exists. In that
judge’s words:
One cannot conclude with certainty that in the entire
history of Anglo-American jurisprudence an anonymous
jury was never impanelled [sic] prior to the 1970s. Yet
34
us, it appears that public knowledge of jurors’ names is a well-
established part of American judicial tradition.
The Government’s strongest argument that there is no
such tradition of openness is based on 28 U.S.C. § 1863(b)(7),
which instructs District Courts to put into effect a jury selection
plan that will
fix the time when the names drawn from the
qualified jury wheel shall be disclosed to parties
and to the public. If the plan permits these names
to be made public, it may nevertheless permit the
chief judge of the district court, or such other
district court judge as the plan may provide, to
keep these names confidential in any case where
the interests of justice so require.
28 U.S.C. § 1863(b)(7) (2000) (emphasis added). When
the majority appears to demand that degree of certainty
before it would be willing to recognize a tradition of
openness. Rather than requiring Gannett to show that a
strong presumption of openness exists, the majority
would ask it to prove that restrictions have never and
could never have been imposed. By contrast, the United
States Supreme Court has never required such an
impossible standard of proof.
571 A.2d at 757–58 (Walsh, J., dissenting).
35
Congress enacted this provision in 1968, the accompanying
legislative history explained that it “permits the present diversity
of practice to continue. Some district courts keep juror names
confidential for fear of jury tampering. Other district courts
routinely publicize the names.” See In re Globe Newspaper, 920
F.2d 88, 92 (1st Cir. 1990) (quoting H.R. Rep. No. 1076, 90th
Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 1792, 1801).
The Government argues that the statute and this passage from its
legislative history suggest that, at least as of 1968, no strong
tradition of juror name disclosure existed. Government’s
Response at 16–17.
We are reluctant to afford the relevant language of the
statute significant weight in this context. Nothing in the statute
itself indicates whether Congress believed that allowing federal
courts to withhold juror names was consistent with historical
practice or a significant departure. The House Report is more
explicit on this point, stating that the statute was merely
intended to preserve the “diversity of practice” that existed in
federal courts as of 1968. But the House Report is not an
official expression of Congress’s views, and its persuasive value
is limited because it provides no evidence to support its claim
that such a “diversity of practice” existed at the time. Moreover,
even if the House Report accurately characterizes the practices
of federal district courts in 1968, it is nonetheless consistent
with the proposition that withholding the names of jurors is a
relatively recent phenomenon. Given the Supreme Court’s
suggestion that a proper analysis of “experience” will evaluate
36
trial practices as they have developed over the past millennium
in courts at all levels, see Press-Enterprise II, 478 U.S. at 8, we
cannot discern whether jurors’ names have traditionally been
public based on an assertion in legislative history forty years ago
that some degree of “diversity of practice” existed in the federal
system.
The reports published in 1968 and 1980 by the
Committee on the Operation of the Jury System of the Judicial
Conference of the United States are not to the contrary. See
Report of the Committee on the Operation of the Jury System on
the “Free Press-Fair Trial” Issue, reprinted in 45 F.R.D. 391(1968); Revised Report of the Judicial Conference Committee
on the Operation of the Jury System on the “Free Press-Fair
Trial” Issue, reprinted in 87 F.R.D. 519 (1980). Both of the
Committee’s reports recommend that District Courts adopt a
rule that allows judges, “in a case which is likely to attract
unusual publicity,” to issue a “special order” that “might be
addressed” to a variety of subjects, including a direction that
“the names and addresses of jurors or prospective jurors not be
publicly released except as required by statute.” 28 45 F.R.D. at
28
The dissent states that “[t]he Committee recommended
that each District Court adopt a rule providing for special
measures to be taken in cases likely to receive significant media
attention, including” a direction that jurors’ names and addresses
be withheld. Dissent, infra, at 26. The dissent’s language
(“special measures to be taken”) suggests that the Committee
37
409–11; 87 F.R.D. at 529–31. We do not dispute that a trial
judge has historically had the power to issue such an order in
special cases. We conclude only that a tradition of openness
exists and that anonymous juries have been the rare exception
rather than the norm.
In short, we believe that the “experience” prong of the
Press-Enterprise II test favors a conclusion that jurors’ names
have traditionally been available to the public prior to the
beginning of trial. If any significant evidence to the contrary
exists, we have not discovered it in our review of case law and
commentary on this question.
2. Logic
We next consider whether presumptive public access to
jurors’ names prior to empanelment “plays a significant positive
role in the functioning” of the criminal justice system. See
Press-Enterprise II, 478 U.S. at 8. As the First Circuit
explained in In re Globe Newspaper Co., the purposes served by
the openness of trials and voir dire generally are also served by
recommended that District Courts adopt a rule requiring judges
to withhold jurors’ names and addresses in high-profile cases.
For the sake of clarity, we note that the Committee said that
“[s]uch a special order might be addressed to some or all of the
following subjects,” including the withholding of names and
addresses. 45 F.R.D. at 409 (emphasis added).
38
public access to the jurors’ names:
Knowledge of juror identities allows the public to
verify the impartiality of key participants in the
administration of justice, and thereby ensures
fairness, the appearance of fairness and public
confidence in that system. It is possible, for
example, that suspicions might arise in a
particular trial (or in a series of trials) that jurors
were selected from only a narrow social group, or
from persons with certain political affiliations, or
from persons associated with organized crime
groups. It would be more difficult to inquire into
such matters, and those suspicions would seem in
any event more real to the public, if names and
addresses were kept secret. Furthermore,
information about jurors, obtained from the jurors
themselves or otherwise, serves to educate the
public regarding the judicial system and can be
important to public debate about its strengths,
flaws and means to improve it. . . . Juror bias or
confusion might be uncovered, and jurors’
understanding and response to judicial
proceedings could be investigated. Public
knowledge of juror identities could also deter
intentional misrepresentation at voir dire.
920 F.2d at 94. Public access to jurors’ names is not without
39
risks. First, when the names of jurors are public, friends or
enemies of a criminal defendant may find it easier to influence
the jury’s decision. In an extreme case, this could take the form
of threats to the jurors or their family members. Second, if
jurors know that the media will attempt to contact them or their
families, they may resist serving on high-profile cases at all
because they fear that their privacy will be threatened. Third,
public knowledge of jurors’ identities might actually increase
the risk of misrepresentation at voir dire, because some jurors
will be tempted to lie in order to avoid the disclosure of
embarrassing information.29
Despite these risks, we believe that the judicial system
benefits from a presumption of public access to jurors’ names.
A criminal jury trial vests twelve randomly-selected citizens
with the power to decide the fate of someone who the state has
targeted for prosecution. We cannot reconcile the Supreme
29
Although these risks may be greater when the jurors’
identities are made public during trial, they often exist even
when the jurors’ identities will remain secret until the end of
trial. First, jurors might be reluctant to convict a defendant who
is known to be dangerous for fear of post-trial retaliation from
the defendant’s friends. Second, jurors might be reluctant to
serve on a jury at all if they think that they will be the subject of
media attention post-trial. Third, jurors might lie during voir
dire because they fear that, after the trial, sensitive information
will be revealed.
40
Court’s conclusion that the public has the right to see the
process in which this power is exercised (Richmond
Newspapers) and to see the process that selects those who will
exercise the power (Press-Enterprise I), with the conclusion that
the public has no right to know who ultimately exercises this
power. As the First Circuit said, “the prospect of criminal
justice being routinely meted out by unknown persons does not
comport with democratic values of accountability and
openness.” Globe Newspaper, 920 F.3d at 98. Of course, in a
given case, a risk of jury tampering or excessive media
harassment may exist. But we are satisfied that district judges
are well-positioned to address these risks on a case-by-case
basis, and in such cases, to make particularized findings on the
record “establishing the existence of a compelling government
interest” and “demonstrating that absent limited restrictions on
the right of access, that other interest would be substantially
impaired.” Antar, 38 F.3d at 1359 (citing Press-Enterprise II,
478 U.S. at 15). We do not consider these risks so pervasive as
to overcome the benefits of public access. We must strike the
balance in favor of presumptive public access to jurors’
identities.30
30
We acknowledge that our conclusion in the instant case
may be inconsistent with our dicta in United States v. Scarfo,
850 F.2d 1015 (3d Cir. 1988), in which we said that “anonymity
would seem entirely consistent with, rather than anathema to,
the jury concept” and that “the probable merits of the
anonymous jury procedure are worthy, not of a presumption of
41
Finally, we believe that this presumptive First
Amendment right of access to the identities of jurors attaches no
later than the swearing and empanelment of the jury.
Corruption and bias in a jury should be rooted out before a
defendant has to run the gauntlet of trial. Public knowledge of
the jurors’ identities is desirable in part because it can deter such
corruption and bias. The value of any right of access, then, can
only be diminished after trial has begun, and diminished even
further once a verdict has been rendered by a corrupt or biased
jury.31 We acknowledge that, in the words of the First Circuit,
irregularity, but of disinterested appraisal by the courts.” 850
F.2d at 1023. Unlike the instant case, Scarfo did not involve a
First Amendment challenge and did not apply the Press-
Enterprise II test to determine whether jurors’ names should be
presumptively public. We do not challenge Scarfo’s conclusion
that a district court’s decisions about anonymity should be
reviewed for abuse of discretion when no one has raised a valid
First Amendment challenge. See id.31
The dissent claims that “[c]orruption could just as
easily be rooted out post-trial as it could pre-trial.” Dissent,
infra, at 35. Although we agree that corruption could be rooted
out post-trial, it is far more desirable to discover it pre-trial. It
is neither fair nor efficient to subject a defendant to a second
trial because the jury in the first trial was tainted. Moreover,
post-trial discovery of corruption shakes public confidence in
the validity and finality of criminal jury verdicts. Of course, we
do not suggest that a public right of access to jury names is the
42
“stronger reasons to withhold juror names and addresses will
often exist during trial than after a verdict is rendered.” Globe
Newspaper, 920 F.2d at 91 (emphasis in original). But we do
not believe that these reasons are so compelling that they negate
altogether the existence of a First Amendment right of access to
the names during trial. Rather, a presumption of openness exists
at the latest at the time of the swearing and empanelment of the
jury, regardless of the fact that a judge may find “stronger
reasons” for overcoming this presumption during trial.
B.
We now consider whether the District Court articulated
the necessary findings and consideration of alternatives to
overcome the presumption that the jurors’ names should be
publicly available. It provided three reasons for exercising its
discretion 32 to empanel an anonymous jury; we discuss these
most effective method for uncovering corruption or bias in jury
selection before a trial begins. Voir dire, conducted by the
parties and the court, has traditionally been the primary method
for accomplishing this. Nonetheless, we believe that public
access plays an important role in the criminal justice system by
allowing the public to verify, before a trial has begun, that the
trial will proceed with an impartial jury.
32
The District Court found that the media had no First
Amendment right to obtain the jurors’ names, and therefore
described its decision to withhold the names as an exercise of
43
reasons in turn.
First, the District Court said that withholding the jurors’
names is necessary to prevent the media from publishing stories
about them:
First, from the prospective [sic] of the media,
because the media requests the names and
addresses of the potential jurors, if those requests
were granted, there is certainly a real potential
that the media would use those names (and
addresses) to develop and publish stories about
the prospective jurors, coupled with possible
interviews of the potential jurors’ family
members, co-workers, and friends. The media
obviously does not want the jurors’ names as an
intellectual exercise to file in some reporter’s
electronic desk drawer. If they want the names,
they want to do “reporting.” If the numerous
excellent “investigatory” reporters in Western
Pennsylvania obtain the names and home address
of the jurors, detailed “background” stories,
before and during the trial, are likely. The Court
thus has serious concerns that the dissemination
of stories about the prospective jurors (and
especially the empaneled jury) would have a real
discretion that balanced “competing constitutional interests.”
Dec. 21 Order at 26–27.
44
impact on the jurors’ willingness to serve and, if
selected, on the jurors’ abilities to remain fair,
unbiased, and focused on this case.
Dec. 21 Order at 28–29. The prospect that the press might
publish background stories about the jurors is not a legally
sufficient reason to withhold the jurors’ names from the public.
Although such stories might make some jurors less willing to
serve or more distracted from the case, this is a necessary cost
of the openness of the judicial process.33 The participation of
jurors “in publicized trials may sometimes force them into the
limelight against their wishes,” but “[w]e cannot accept the mere
generalized privacy concerns of jurors” as a sufficient reason to
conceal their identities in every high-profile case. See Globe
Newspaper, 920 F.2d at 98. The District Court has not
established that there is anything unusual about this case, aside
from a locally prominent defendant, that makes the prospective
jurors’ hypothetical privacy concerns more compelling than
usual. The District Court’s statements amount to the sort of
“conclusory and generic” finding that we have held to be
33
The District Court appears to believe that no good can
come from any story published about a juror. As we noted
above, however, press investigation of jurors might be beneficial
in some cases by, for example, revealing possible sources of
juror bias or deterring misrepresentation during voir dire.
45
insufficient to overcome the presumption of openness.34 See
Antar, 38 F.3d at 1363.
Second, the District Court cited the possibility that
friends or enemies of Wecht would attempt to influence the
jurors:
Secondly, from the perspective of the defendant,
if there is media coverage disseminating the
names (and addresses) of the prospective jurors,
that coverage would undoubtedly increase the risk
of intimidation of those jurors as there is a
probability that other individuals (not including
the defendant himself) would contact those jurors
in an attempt to either hurt or bolster defendant’s
case. Just like the district court in the Scarfo case
had concerns that persons hostile to defendant
might have been inclined to harass the jurors, this
Court also has real concerns that persons who are
either hostile to, or enamored with, defendant
would attempt to influence the jurors.
34
Taken to its logical conclusion, the District Court’s
argument would allow judges to withhold the names of jurors in
every case that might attract media attention. In fact, aside from
the reference to “Western Pennsylvania” reporters, any other
court could copy the District Court’s statement verbatim to
justify an anonymous jury in any high-profile case.
46
Dec. 21 Order at 29. This explanation is insufficient to justify
withholding the names in this case. Again, this is a “conclusory
and generic” finding that cannot overcome the presumption that
jurors’ names are public information. In fact, the District
Court’s reasoning would justify anonymity in virtually every
jury trial, whether or not it attracts media attention, since almost
all defendants have friends and enemies who might be inclined
to influence jurors. The District Court’s citation to United
States v. Scarfo, 850 F.2d 1015 (3d Cir. 1988), is revealing. In
Scarfo, we noted that the defendant belonged to an “organized
crime group,” had ordered “several murders” (including those
of a judge and a prospective witness), and had attempted to
bribe judges. Id. at 1017. In short, specific reasons existed in
Scarfo to believe that friends of the defendant would threaten or
bribe the jurors. The District Court in this case has not provided
anything closely resembling the specific reasons offered in
Scarfo.35
35
The District Court said in a footnote that it was “aware
of the arguments made by the government regarding defendant’s
alleged witness intimidation,” and referred to a letter that two
individuals sent to the court asking that the jury be anonymous
in light of threatening letters that they had received from Wecht.
Dec. 21 Order at 30 n.9. But the District Court denied that it
was relying on these alleged threats “as the basis for its decision
to empanel an innominate jury,” id., and did not include any
findings of fact about them in the record. Thus, even assuming
arguendo that these alleged threats provide a justification for an
47
Finally, the District Court quoted extensively from a
document that Wecht filed that purports to establish that he has
acquired many enemies. This document points out that Wecht
“has made countless cause and manner-of-death determinations”
as a witness in “hundreds of homicide and other criminal trials,”
some of which involve “the most serious offenders of
society—violent criminals,” and that he remains a witness in
“pending criminal homicide trials.” Dec. 21 Order at 29
(quoting Defendant’s Brief in Support of Motion For
Clarification And/Or Modification of Trial Procedures and
Scope of Exhibit and In Limine Rulings at 5, United States v.
Wecht, No. 2:06-cr-00026-AJS (W.D. Pa. Dec. 4, 2007)
(“Defendant’s Brief”)). In addition, the document says, he has
participated in “high-profile” civil cases, including wrongful
death actions. Id. at 30 (quoting Defendant’s Brief at 6). As a
result, many people “may harbor ill will” or “bear animus”
toward Wecht. Id. (citing Defendant’s Brief at 5–6). Moreover,
the document says that Wecht’s son, as a “sitting family court
judge in Allegheny County . . . [,] makes judicial decisions that
affect people in the most emotional and passionate areas of their
lives,” and that some of these people “may feel wronged as a
result of his judicial decisions.” Id. The document points out
that “[t]hose individuals may find their way into Dr. Wecht’s
anonymous jury, we cannot rely on them because the District
Court was required to place “findings on the record which
clearly established that closure was necessary to protect an
overriding interest.” Antar, 38 F.3d at 1361.
48
pool of jurors.” Id.The District Court cited the statements in this document
to support its conclusion that, unless the jury is anonymous,
Wecht’s many enemies might attempt to influence jurors. (The
District Court also suggests, without citing any evidence, that
“presumably ‘unknown’ friends” of Wecht might also attempt
to influence the jury. Dec. 21 Order at 30.) Wecht made these
statements, however, in support of the opposite conclusion: that
the jury should not be anonymous because the defense and the
media must be able to ensure that Wecht’s enemies do not enter
the jury pool without being detected. Defendant’s Brief at 5–11.
As we have explained, one of the purposes of access to jurors’
names is to make this type of investigation possible.36
Moreover, the quoted statements consist largely of speculation
that people might be hostile toward Wecht; they describe no
specific instances in which Wecht’s enemies or friends had
36
Voir dire may detect prospective jurors with obvious
connections to Wecht, even if they are anonymous. But if we
accept Wecht’s assertion that he has incurred the animus of
countless “friends” of those who were affected adversely by his
participation in trials, some of these connections might not be
obvious. Moreover, any person who feels passionately enough
about Wecht to threaten jurors would presumably be willing to
lie about his or her connections to Wecht during voir dire,
protected by anonymity, in order to earn a spot on Wecht’s jury.
49
threatened or harassed anyone. The mere fact that people might
have passionate opinions about a defendant is not enough to
justify an anonymous jury. The District Court must articulate
some reason to conclude that the risks that such people pose to
the jurors are serious and specific enough to justify depriving
the public (and, in this case, the defendant) of knowledge of the
jurors’ identities. Because the District Court did little more in
this case than quote factual assertions that Wecht offered in
opposition to jury anonymity, we conclude that it did not
overcome the presumption in favor of disclosure.
VI.
The Media-Intervenors also challenge the voir dire
procedure adopted by the District Court. They contend that by
using Juror Questionnaires instead of in-court voir dire to make
“for cause” determinations until the venire has been reduced to
forty prospective jurors, the District Court violates their First
Amendment right of access to voir dire proceedings.37 They do
not request immediate access to the actual questionnaires but
instead demand that the District Court conduct voir dire in open
court in addition to using the questionnaires. Media’s
Emergency Motion at 4 n.1. According to the Media-
37
We need not conduct an “experience and logic” inquiry
into whether a public right of access to voir dire proceedings
exists, because Press-Enterprise I established that this right
exists. 464 U.S. at 508.
50
Intervenors, they seek in-court voir dire in order to allow public
access to “information traditionally revealed during voir dire
(juror names, area where a juror lives, employment, family,
etc.).” Id. at 16.
We reject the Media-Intervenors’ request for two related
reasons. First, unlike the Media-Intervenors’ request for the
names of prospective jurors, the request for in-court voir dire is
not merely a request for access to information, but a request that
the District Court conduct a specific procedure and that the
Media-Intervenors have access to that procedure. It is well-
established that “the method of conducting the voir dire is left
to the sound discretion of the district court.” Waldorf v. Shuta,
3 F.3d 705, 710 (3d Cir. 1993). In a voir dire process involving
400 prospective jurors, we believe that a trial judge has
discretion to conduct part of the process exclusively based on
written questionnaires, so long as it is consistent with
established procedural rules (e.g., F ED. R. C RIM. P. 24). Second,
we believe that our order requiring the District Court to release
the names of prospective jurors grants the Media-Intervenors
most of the relief they seek. Because the prospective jurors will
not be anonymous, the Media-Intervenors will have available
information to investigate and detect possible improper bias in
“for cause” determinations, should they elect to do so.
VII.
In sum, we have articulated in this opinion the reasons
51
supporting our January 9 Order vacating the provisions of the
District Court’s order that restricted access of Media-Intervenors
and defense counsel38 to the jurors’ names.
38
Suffice it to say, the fact that the accused here supports
the Media-Intervenors’ appeal—which often is not the case, see,
e.g., ABC, Inc., 360 F.3d at 98–99; Black, 483 F. Supp. 2d at620—bolsters the result we reach today.
52
United States v. Wecht, No. 07-4767
VAN ANTWERPEN, Circuit Judge, concurring in part and
dissenting in part.
Although I seldom find it necessary to dissent, I write
separately today because the Majority’s opinion ignores a
substantial volume of case law, statutes passed by Congress, and
the established practices of many of this country’s courts.
Today’s opinion will undoubtedly cause significant problems
and delays in our district courts if the Majority’s expansion of
the collateral order doctrine and its announcement of a new
constitutional right are permitted to stand.
I dissent from the Majority’s holding that this Court has
jurisdiction at this time to entertain the Media-Intervenors’
motion and that the Media-Intervenors are entitled, as a matter
of constitutional right, to the names of all of the prospective and
trial jurors prior to the empanelment of the trial jury.39
39
In this opinion, I adopt the Majority’s use of the terms
“prospective jurors,” which refers to the members of the venire,
and “trial jurors,” which refers to the members of the venire who
are chosen to compose the actual trial jury.
I also note that the jury in this case is not “anonymous,”
as the parties will know everything about the jurors, including
their names and other personal information, and the public will
know everything about the jurors except their names. The
53
Additionally, I disagree with the remedy fashioned by the
Majority, as in my opinion it amounts to impermissible micro-
management of procedures and decisions that are properly
delegated to the discretion of district judges.40
I.
According to the Majority, this Court has jurisdiction
District Court was therefore correct in referring to this jury as
“innominate,” rather than “anonymous.” Furthermore, there has
been no indication that the trial jurors’ names will not be
released following the trial.
40
I join the Majority’s holding that the District Court’s
use of the questionnaires for jury selection is permissible. I am
also of the view that the names of those prospective jurors not
selected for jury service should be disclosed once the trial jury
is seated. Obviously, such disclosure is contingent on the ability
of the parties to keep the names of the prospective jurors
confidential, and the District Court should take the actions
necessary to ensure the parties do keep the names confidential.
The time and manner of disclosure is within the discretion of the
District Court, however; it is not constitutionally mandated.
Additionally, the unique circumstances of this case likely justify
withholding the names of the trial jurors at least until the end of
the trial. Insofar as the Majority opinion suggests that the
District Court has the discretion to make these disclosures, I join
that part of the opinion.
54
over the Media-Intervenors’ motion by virtue of the collateral
order doctrine. In light of the narrow nature of the collateral
order doctrine and the narrow issue presented in the instant case,
I respectfully disagree.
A.
Collateral orders, those orders that “finally determine
claims of right separable from, and collateral to, rights asserted
in the action,” are a narrow exception to the rule of finality, 41
and are thus reviewable on an interlocutory basis. Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see
also Bines v. Kulaylat, 215 F.3d 381, 384 (3d Cir. 2000). This
Court considers a district court’s decision to be a reviewable
collateral order if it meets all of the criteria set forth by the
Supreme Court: (1) the order must “conclusively determine the
disputed question;” (2) the order must “resolve an important
issue completely separate from the merits of the action;” and (3)
41
As a general rule, this Court has jurisdiction to hear
appeals only from final decisions of the district courts. See 28
U.S.C. § 1291; see also Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 545 (1949) (noting that 28 U.S.C. § 1291“provides . . . for appeal only ‘from all final decisions of the
district courts,’ except when direct appeal to this Court is
provided”); Bines v. Kulaylat, 215 F.3d 381, 384 (3d Cir. 2000)
(“As a general rule, we have no jurisdiction under 28 U.S.C. §
1291 to review interlocutory orders. . . .”).
55
the order must “be effectively unreviewable on appeal from a
final judgment.” See Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978); see also Youngblood v. DeWeese, 352 F.3d
836, 838 n.1 (3d Cir. 2003).
As both the Supreme Court and this Court have
emphasized on numerous occasions, the collateral order doctrine
should be construed narrowly, lest this exception to the final
judgment rule swallow the rule itself. See, e.g., Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)
(describing the collateral order doctrine as “narrow” and
“stringent”); We, Inc. v. City of Philadelphia, 174 F.3d 322, 324
(3d Cir. 1999) (“We have followed [the Supreme Court’s]
admonition and consistently construed the collateral order
exception narrowly. . . .”).42 In defining what orders fall within
the narrow scope of the collateral order doctrine, the Supreme
42
Judge Aldisert also expressed concern with the ever-
expanding scope of the collateral order doctrine in Borden Co.
v. Sylk, 410 F.2d 843, 845-46 (3d Cir. 1969): “We have detected
what appears to be an irresistible impulse on the part of
appellants to invoke the ‘collateral order’ doctrine whenever the
question of appealability arises. Were we to accept even a small
percentage of these sometime [sic] exotic invocations, this court
would undoubtedly find itself reviewing more ‘collateral’ than
‘final’ orders.” The flood of motions related to this case that we
have faced and continue to face bears witness to the wisdom of
Judge Aldisert’s words.
56
Court noted that the collateral order doctrine’s “reach is limited
to trial court orders affecting rights that will be irretrievably lost
in the absence of an immediate appeal.” Richardson-Merrell,
Inc. v. Koller, 472 U.S. 424, 430-31 (1985).
In criminal cases, this Court must be even more vigilant
in ensuring that the collateral order exception is construed
narrowly, as we have been cautioned by the Supreme Court to
apply the collateral order exception “with the utmost strictness”
in such cases. See Midland Asphalt Corp. v. United States, 489
U.S. 794, 799 (1989); Flanagan v. United States, 465 U.S. 259,
265 (1984). Such a strict construction is necessary to avoid
delays due to piecemeal appellate litigation, as these delays may
work to the detriment of the rights of the defendant or prejudice
the prosecution’s ability to prove its case. See United States v.
MacDonald, 435 U.S. 850, 853-54 (1978) (noting that “[t]he
rule of finality has particular force in criminal prosecutions
because ‘encouragement of delay is fatal to the vindication of
the criminal law’”); see also Gov’t of Virgin Islands v. Rivera,
333 F.3d 143, 150 n.16 (3d Cir. 2003) (“In the context of a
criminal case, the collateral order doctrine is used sparingly
because of the need to effectively and efficiently conclude
criminal proceedings, without piecemeal interruptions.”).
Accordingly, interlocutory appeals in criminal cases are
permitted under the collateral order doctrine only in the most
rare and exceptional circumstances. See Flanagan, 465 U.S. at
270.
57
B.
In light of this Court’s practice of construing the
collateral order doctrine narrowly, the appeal of the District
Court’s December 21, 2007 order (“December 21 Order”),
which set forth the procedures for selecting the jury, is not one
of the “rare” circumstances in which this Court should grant
interlocutory review. Appellate review is not justified at this
time because the District Court’s order does not satisfy either the
first or the third prong of the Coopers & Lybrand test.43 See We,
174 F.3d at 324 (“If the order at issue fails to satisfy any one of
[the Coopers & Lybrand] requirements, it is not an appealable
collateral order.”).
1.
The first prong of the Coopers & Lybrand test requires
that the order at issue “conclusively determine the disputed
question.” See Coopers & Lybrand, 437 U.S. at 468. As the
Majority correctly notes, this prong of the test is akin to the
requirement that the order being appealed be a final order; we
will not review an order that is “tentative, informal or
incomplete.” See Cohen, 337 U.S. at 546. The District Court’s
December 21 Order sets forth what it considered to be the
43
The Majority’s thorough analysis of the second prong
is correct because the issue of jury selection is sufficiently
separate from the merits to satisfy this prong.
58
finalized procedures for selecting the jury. Although the
December 21 Order purports to be a “final order” on the issue of
jury selection, it was only one step in a process of modifications
and could have been further modified by the District Court up
until the time the procedures were actually implemented. Such
modifications of trial procedures are clearly within the ample
discretion of the District Court. See, e.g., Waldorf v. Shuta, 3
F.3d 705, 710 (3d Cir. 1993) (noting that “the method of
conducting the voir dire is left to the sound discretion of the
district court,” and that “[b]ecause voir dire determinations ‘rely
largely on . . . immediate perceptions,’ district courts have been
awarded ample discretion in determining how best to conduct
the voir dire”). Thus, the December 21 Order did not become a
“final order” for the purposes of our review until the process set
forth in the Order was actually implemented.44
44
At the very least, the District Court should have been
given the opportunity to make further modifications in light of
the Media-Intervenors’ arguments. A better method for
challenging these procedures prior to empanelment would have
been by way of a stay with an initial application to the District
Court. See Fed. R. App. P. 8(a). The Media-Intervenors’
motion to this Court was for such a stay, or, in the alternative,
for summary reversal. Because the Majority granted reversal, it
considered the motion for a stay to be moot. As explained in
this opinion, reversal of the District Court is inappropriate at this
time. Likewise, the motion for a stay of jury selection should
have been denied, as the Media-Intervenors did not make that
motion before the District Court, nor did they sufficiently allege
59
As the Majority correctly suggests, the mere fact that an
order could have been modified does not mean the order is not
final. See Maj. Op., supra, at 19 n.14; see also Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 11-13 &
n.14 (1983). As the Supreme Court stated in Mercury
Construction, “[t]he reasoning of Coopers & Lybrand [that
some orders that may be subject to revision are not final orders]
does not reach all pretrial orders that are formally subject to
revision, but only those as to which some revision might
reasonably be expected in the ordinary course of litigation.” See
id. at 12 n.14 (emphasis added). Given that district courts have
significant discretion in fashioning the manner in which a trial
will be conducted, it is entirely reasonable and foreseeable that
orders establishing jury selection and trial procedures will be
subject to modification at any time and for any reason prior to
the time the trial actually commences. Thus, the fact that the
District Court issued its December 21 Order relating to jury
selection almost three weeks before jury selection was set to
begin belies the Majority’s contention that this order was set in
stone.
Although the Majority suggests that the record does not
reveal any evidence that the District Court contemplated
modifying the Order between December 21 and the beginning
of jury selection, the record is replete with evidence that the
why such an application to the District Court would have been
impracticable. See Fed. R. App. P. 8(a).
60
District Court had previously been more than accommodating in
developing and modifying the procedures for jury selection from
the time it first announced those procedures on July 14, 2006.45
Because the District Court worked with the parties to develop
the jury selection procedures, and because the District Court had
significant discretion to modify the order prior to jury selection,
it is not reasonable to presume that the December 21 Order was
45
Between July 14, 2006, the date of the original jury
selection order, and December 21, 2007, the date of the most
recent jury selection order, multiple changes were made to the
prescribed process, including: having the Court Administrator,
as opposed to the Judge, sign the letter to prospective jurors
following an objection by Wecht; having the jurors complete the
forms in court, as opposed to at home; including in the District
Court’s initial order (July 14, 2006) a notation that the proposed
plan was subject to modification; opening up the process to the
public by including in-court voir dire once the venire of 400 has
been culled down to 40; releasing the jury questionnaires to the
media following the trial; and accommodating the numerous
questions submitted by the parties for inclusion in the
questionnaire, which was developed during numerous
conferences with the parties. In short, the facts do not support
the contention that the District Court is so set in its procedures
that contemplating modification would be unreasonable. There
is nothing on the record or discussed in the Media-Intervenors’
brief that suggests the District Court would not have considered
accommodating a request to further modify the procedures, had
such a motion actually been made.
61
the final word on jury selection. If anything, the record
indicates that had the Media-Intervenors or the defendant first
attempted to seek relief from the District Court, they may well
have been successful. Additionally, if the Media-Intervenors or
the defendant had petitioned the District Court for modification
of the December 21 Order, instead of immediately coming to
this Court for relief, there would at least be some evidence on
the record as to the District Court’s inclination to modify the
Order. No such attempt was made, however, and thus no
evidence exists as to whether the District Court contemplated
modification of the December 21 Order.46 See Maj. Op., supra,at 19 n.14.
Because the Media-Intervenors have not met their burden
of demonstrating that the December 21 Order “conclusively
determined” the procedures for selecting the jury,47 they cannot
46
The Majority suggests that the December 21 Order was
final because the District Court ruled against the Media-
Intervenors on their previous objections to the Order. This fact
alone does not demonstrate that the District Court did not
contemplate any modification to the December 21 Order; it only
suggests that the District Court was unlikely to accommodate
the specific modifications requested by the Media.
47
The party asserting this Court’s jurisdiction over an
appeal or a motion always has the burden of demonstrating that
such jurisdiction exists. See, e.g., Samuel-Bassett v. Kia Motors
America, Inc., 357 F.3d 392, 396 (2004) (“The party asserting
62
satisfy the first prong of the Coopers & Lybrand test at this time.
jurisdiction bears the burden of showing that at all stages of the
litigation the case is properly before the federal court.”). Thus,
the Media-Intervenors must point to some evidence that the
District Court did not contemplate modification of any aspect of
the December 21 order, other than suggesting that the District
Court was unlikely to modify the December 21 Order merely
because it had ruled against the Media-Intervenors in the past.
As noted above, the Media-Intervenors cannot satisfy their
burden of demonstrating that jurisdiction exists. The evidence
that the District Court had previously modified the opinion
multiple times and the fact that the District Court has the
discretion over trial procedures suggest that it is unreasonable to
presume that the December 21 Order was final at any point prior
to the beginning of jury selection.
As the Majority correctly notes, the Government
suggested that it was not going to contest the first prong of the
Press-Enterprise II test. See Maj. Op., supra, at 19-20.
However, as the Majority correctly notes, this failure to contest
that issue is in no way dispositive of the issue before us: whether
collateral order jurisdiction is appropriate. Id. at 20 n.15. The
Government’s response should not be read in such a way as to
construe its failure to explicitly contest the issue as a concession.
See Government’s Response at 8-9 (noting that “the order
regarding jury selection may satisfy the first requirement of the
collateral order doctrine”) (emphasis added). There are any
number of reasons why the Government might choose not to
contest this issue. Thus, although the Government’s failure to
explicitly brief this issue may be “notable,” as the Majority
suggests, it is only mildly so.
63
Accordingly, this Court does not presently have jurisdiction to
entertain the Media-Intervenors’ motion.
2.
As to the third prong of the Coopers & Lybrand test, that
the right at issue be effectively unreviewable upon appeal, the
Majority holds that it would be “impossible” to vindicate the
public’s right of access to the proceedings. See Maj. Op., supra,
at 17. The Majority holds that “the potential harm caused by an
improper order restricting the public’s right to access to a
criminal trial is not adequately redressable on appeal after final
judgment, regardless of the trial’s outcome.” See id. As
discussed further in Part II, infra, the Majority characterizes the
right at issue in this appeal too broadly when it suggests this
case is about the right to access the proceedings in general.
What is at issue here is the right to know the names of the
prospective and trial jurors prior to the time the jury is
empaneled. The District Court’s December 21 Order already
gives the Media-Intervenors access to all other parts of the jury
selection process. From the standpoint of jurisdiction, neither
the Media-Intervenors nor the Majority today have explained
why the public’s interest in determining “the impartiality of key
participants in the administration of justice” would be
impossible to satisfy were all the names of the prospective and
trial jurors not disclosed until after the trial is over, much less
why withholding only the names of the jurors serving in the trial
would pose such a problem. See In re Globe Newspaper Co.,
64
920 F.2d 88, 94 (1st Cir. 1990).
As the Supreme Court has noted, the rights that are
generally appealable on an interlocutory basis in criminal
matters are those rights “the legal and practical value of which
would be destroyed if [they] were not vindicated before trial.”
See MacDonald, 435 U.S. at 860 (emphasis added). Such rights
must be so important that they would be “‘lost, probably
irreparably,’ if review had to await final judgment.” See Abney
v. United States, 431 U.S. 651, 658 (1977) (quoting Cohen, 337
U.S. at 546) (emphasis added); see also Flanagan, 465 U.S. at
265 (“The importance of the final judgment rule has led the
Court to permit departures from the rule ‘only when observance
of it would practically defeat the right to any review at all.’”).
The mere fact that contemporaneous disclosure of the names of
the prospective and trial jurors would be more convenient for
the Media-Intervenors does not, by itself, elevate the right to
know and force the disclosure of the names of the prospective
and trial jurors to such a level that the right would be destroyed
or irrelevant after the trial is complete.
The issue is not, as the Majority repeatedly suggests,
about the “value” of the right to know the names of the
prospective and trial jurors 48 or whether that right would be
48
The fact that the media may be better able to report on
trial proceedings were they given contemporaneous access to the
names of the jurors, as opposed to being given access at the
65
“seriously undermined.” 49 See Maj. Op., supra, at 18. Nor has
the District Court here barred the courtroom doors to the Media-
Intervenors or sealed transcripts of court proceedings, as was the
situation in many of the right-of-access cases cited in the
Majority’s opinion. See, e.g., Press-Enterprise Co. v. Superior
Court of California, 464 U.S. 501, 503-04 (1984) (“Press-
conclusion of the trial, is not a sufficient reason to support the
Majority’s arbitrary line. See United States v. Doherty, 675 F.
Supp. 719, 725 n.7 (D. Mass. 1987) (“The Globe [newspaper],
however, advances the absolutist view that it has a right to
immediate access in order to satisfy the public’s interest at a
time when it is focused on the most dramatic stage of a jury trial
- the return of the verdict. With respect, this is little more than
an argument that it wants the information to sell more papers.
While this is hardly an ignoble end, it flies in the face of the
historic traditions of the courts [and] does nothing to enhance
the jury system. . . .”).
49
The Majority quotes the Seventh Circuit’s decision in
Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893,
897 (7th Cir. 1994), for the proposition that denying
contemporaneous access to court records may have the same
effect as a complete bar to access. See Maj. Op., supra, at 18.
Grove Fresh, unlike the instant case, involved a district court’s
decision to completely seal all court records in the case before
it. Such a complete bar to the media’s access to court
documents and proceedings is distinguishable from the case
before us, as here the Media-Intervenors have access to a great
deal of information relating to jury selection.
66
Enterprise I”); Globe Newspaper Co. v. Superior Court for
Norfolk County, 457 U.S. 596, 598-99 (1982); Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 559-61 (1980);
ABC, Inc. v. Stewart, 360 F.3d 90, 93 (2d Cir. 2004); United
States v. Antar, 38 F.3d 1348, 1350-51 (3d Cir. 1994) . The
only question underlying our ability to exercise our jurisdiction
is whether the right of the public to know the names of the
prospective or trial jurors would be virtually impossible to
exercise were the names disclosed after the trial, as opposed to
before it. The answer to that question is undoubtedly “no,” as
nothing in the case law or commentary cited by the Majority
indicates that knowledge of the names of prospective or trial
jurors is only effective prior to the beginning of the trial.
The Majority relies in part on Sell v. United States and
Flanagan v. United States in holding that the right at issue in
this case is reviewable on an interlocutory basis. Both of these
cases are distinguishable, however. In Sell, the defendant
sought interlocutory appeal of an order requiring that he be
forcibly medicated in order to stand trial. See Sell v. United
States, 539 U.S. 166, 171-75 (2003). Upon review of this order,
the Supreme Court held that were the Court to wait to review
Sell’s appeal of the order requiring forcible administration of the
anti-psychotic drugs until after the trial, it would be impossible
to vindicate Sell’s right to not be forcibly medicated in order to
stand trial. See id. at 176-77 (“By the time of trial Sell will have
undergone forced medication – the very harm that he seeks to
avoid. He cannot undo that harm even if he is acquitted.
67
Indeed, if he is acquitted, there will be no appeal through which
he might obtain review.”). Accordingly, the Supreme Court
held that Sell’s appeal was permissible as an interlocutory
matter. See id. at 177. In Flanagan, the issue before the
Supreme Court was whether an order disqualifying the
defendants’ counsel was appealable as a collateral order. See
Flanagan, 465 U.S. at 261-63. The Supreme Court held that it
was not, as post-conviction review of the alleged deprivation of
the defendants’ right to choose their own counsel was effective
in ensuring that their rights were not violated.50 See id. at 266-
68. In its opinion, the Supreme Court recited the very limited
number of orders that are reviewable as interlocutory appeals in
criminal cases: an order denying a motion to reduce bail, an
order denying a motion to dismiss an indictment on double
50
In so holding, the Court analogized the right at issue in
Flanagan to deprivations of the Sixth Amendment right to
counsel, which, the Court noted, is fully reviewable even after
the trial. See Flanagan, 465 U.S. at 268 (citing Gideon v.
Wainwright, 372 U.S. 335 (1963)). In effect, the Majority’s
holding today that the Media-Intervenors’ request to know the
names of the prospective or trial jurors is reviewable as a
collateral order seemingly suggests that the right to know the
names of the jurors is more important and more fleeting than is
the defendant’s right to be represented by counsel. See, e.g.,
Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984) (noting
that orders denying appointed counsel, whether in civil or
criminal cases, are only reviewable after final judgment has been
entered).
68
jeopardy grounds, and an order refusing to dismiss an indictment
for violation of the Speech and Debate Clause. See id. at 266;
see also Maj. Op., supra, at 15-16.
Neither the order at issue in Sell nor the various orders
listed in Flanagan as reviewable are similar to the order at issue
in the instant case. In Sell, once the defendant was medicated,
his ability to prosecute his appeal was lost, as there was no
remedy a court could give him once the medication order was
carried out. Similarly, as the Supreme Court noted in Flanagan,
once a duplicitous prosecution of a defendant begins, the right
to be protected from being twice put in jeopardy is useless. In
contrast, the Media-Intervenors do not lose the right to know the
names of the jurors once the trial begins, nor does the public
lose the ability to observe the participants in the judicial process
once the trial commences. Both rights are effectively enforced
post-trial; the mere fact that knowing the names of the
prospective or trial jurors earlier rather than later is preferable
does not, by itself, mean that the right to gather, use, and process
the information requested by the Media-Intervenors is
completely and irretrievably lost once the trial commences.51
51
In fact, most of the cases cited by the Majority arise
from the media’s post-trial challenges to the denial of access to
information, including transcripts of proceedings that were
initially closed. See, e.g., Antar, 38 F.3d at 1350-51; In re
Globe Newspaper, 920 F.2d at 90. Such cases clearly establish
that the right to access can be effectively contested and satisfied
69
Accordingly, the District Court’s order is not effectively
unreviewable post-trial.52
post-trial. Accordingly, these cases do not support the
Majority’s suggestion that the District Court’s order is
effectively unreviewable post-trial. Furthermore, none of these
cases held that the claims of post-trial access were rendered
moot by the completion of the trial, thus suggesting that the right
is effectively reviewable at a time other than prior to
empanelment.
52
The Supreme Court has classified the rights that are
“effectively unreviewable” on appeal, and therefore reviewable
on an interlocutory basis, as those that would be “practically
defeat[ed]” were they not enforced pre-trial, those that are
“impossible” to vindicate on post-trial appeal, those that are
“destroyed” by the commencement of trial, and those that would
be “lost . . . irreparably” once the trial commences. This
language indicates just how important and fleeting a right must
be in order to qualify under the collateral order doctrine. See
Flanagan, 465 U.S. at 265; MacDonald, 435 U.S. at 860; Abney,
431 U.S. at 658. The interest in knowing the names of the jurors
and the right of the public to have access to and oversee the
judicial process would not be “impossible” to vindicate post-
trial, as the Majority alleges, nor would these rights be
“destroyed” by the commencement of trial. They may be
diminished in value once the trial begins or more convenient if
exercised pre-trial, as the Majority suggests, but this is
insufficient to warrant the exercise of our jurisdiction under the
narrowly-construed collateral order doctrine.
70
Because the Media-Intervenors’ interest in knowing the
names of the prospective and trial jurors is not destroyed by the
commencement of jury selection and the trial, the Media-
Intervenors’ appeal fails to satisfy the third prong of the
Coopers & Lybrand test, and we are therefore without
jurisdiction to hear this appeal.53
D.
The Majority today errs in holding that we have
jurisdiction over the Media-Intervenors’ appeal. The order
contested by the Media-Intervenors is not a final order that
conclusively resolves the jury selection issue, nor is the public’s
right to know the names of the prospective or trial jurors
destroyed by the commencement of the trial. Although the
Majority is correct that some right of access claims 54 are only
53
If anything, the Majority opinion today will result in an
avalanche of appeals, as the media can now argue that virtually
any district court order that hinders their ability to report in the
manner they choose is a violation of the First Amendment. Such
a result will not only unduly burden this Court and delay the trial
process, it will conflict with the Supreme Court’s command that
the collateral order doctrine is to be construed narrowly. As has
previously been noted, we have already had to deal with
numerous appeals and motions in this case.
54
As noted in Part II, infra, I cannot join the Majority’s
holding that the First Amendment right of public access to
71
effectively enforced contemporaneously, the Majority is
incorrect in holding that the media’s interest in knowing the
names of prospective or trial jurors is reviewable as a collateral
order because it can only be vindicated prior to the selection of
the jury.55 The collateral order doctrine is reserved for only the
most rare of circumstances, and the issue raised by the Media-
Intervenors in this case is not so rare or extraordinary as to
warrant creating a new class of collateral orders. Accordingly,
the Media-Intervenors’ appeal should be denied for lack of this
Court’s jurisdiction over the District Court’s jury selection
order.
II.
Assuming arguendo that we have jurisdiction over this
matter on an interlocutory basis, the Majority errs in holding that
criminal proceedings necessarily includes a right to know the
names of the prospective and trial jurors before the trial even
begins.
55
Although there are decisions of this Circuit that hold
that certain restrictions on the right to access are appealable as
final orders, those cases dealt with complete closures of the
proceedings or a court’s refusal to unseal certain records. See,
e.g., United States v. Smith, 123 F.3d 140, 145 (3d Cir. 1997);
Antar, 38 F.3d at 1350-51. The circumstances of those cases are
unlike the very limited restriction on the media’s access in this
case, and thus we are not bound by those distinguishable cases.
72
the First Amendment requires the District Court to disclose the
identities of the prospective and trial jurors to the Media-
Intervenors prior to the empanelment of the trial jury. It is well-
established that the First Amendment protects the right of the
public, and the media as its proxy, to have access to criminal
proceedings and to gather information. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 576-77 (1980). As
the Majority correctly notes, this right protects public and media
access to numerous facets of the trial process, including voir
dire. See Maj. Op., supra, at 28 (citing Press-Enterprise I, 464
U.S. at 508). The question presented in this appeal is not
whether the media has a right of access to Dr. Wecht’s voir dire
proceedings, however. The question is far more narrow:
whether the First Amendment right of access necessarily
includes a constitutional right to know the names of prospective
and trial jurors prior to the empanelment of the trial jury. The
Majority concludes that the right of access includes a
constitutional right to know the identities of all jurors, which in
turn requires disclosure by the District Court before the trial
begins.
The Majority is incorrect that “access” necessarily
includes the identities of the prospective and trial jurors.
Additionally, the First Amendment does not require disclosure
of the names to the media prior to the empanelment of the trial
jury.
A.
73
The Majority employs the “experience and logic” test set
forth in Press-Enterprise Co. v. Superior Court of California,
478 U.S. 1, 8-9 (1986) (“Press-Enterprise II”), to determine
whether the Media-Intervenors are entitled, as a matter of
constitutional right, to force the District Court to divulge the
names of the prospective and trial jurors prior to the
empanelment of the trial jury. The Majority incorrectly
concludes that this two-prong test requires disclosure, as the
Press-Enterprise II test does not yield such an entitlement.
1.
The first part of the Press-Enterprise II test, the
“experience” prong, requires an examination of “whether the
place and process have historically been open to the press and
general public.” See Press-Enterprise II, 478 U.S. at 8(emphasis added). According to the Majority, the public has
historically had a right to know the names of prospective jurors.
In support of this conclusion, the Majority cites the Supreme
Court’s historical analysis in Press-Enterprise I, in which the
Court noted that “since the development of trial by jury, the
process of selection of jurors has presumptively been a public
process with exceptions only for good cause shown.” Press-
Enterprise I, 464 U.S. at 505-08. Although the Majority
acknowledges that the Press-Enterprise I opinion mentions
nothing about whether the identities of prospective jurors were
historically available to the public, and although Press-
Enterprise I deals only with the complete closure of voir dire
74
proceedings, the Majority nonetheless infers that the Press-
Enterprise I historical analysis suggests that the names of jurors
were also known to the public. The Majority reaches this
critical conclusion despite the Supreme Court’s silence on this
important question 56 and based solely on the assumption that
because voir dire was traditionally open to the public, the names
of jurors must also have been common knowledge. See Maj.
Op., supra, at 32-33. For this reason, according to the Majority,
the Media-Intervenors can force the District Court to disclose
the names of the prospective and trial jurors before the trial
begins.
A review of the case law, legislation, and local court
procedures of the courts in our Circuit and that of a variety of
other jurisdictions reveals that the “right” to know the names of
the jurors is not, as the Majority suggests, clearly defined. If
anything, a more thorough review of historical and modern jury
56
The Majority wisely notes that it is “reluctant to draw
conclusions solely based on the [Supreme] Court’s silence about
a question that was not before it.” See Maj. Op., supra, at 32.
Accordingly, the Majority refuses to infer that a tradition of
openness existed. It then throws that caution to the wind and
holds that, based on the Supreme Court’s general statements
about the public nature of the voir dire process, none of which
addresses the issue of whether the identities of jurors were
known to the public, the names of jurors were historically
known to the general public. See id at 32-33.
75
practices suggests that the “experience” is one of giving
discretion to district judges over the conduct of voir dire,
including the discretionary ability to withhold the names of
prospective and trial jurors.
i.
In 1968, following the Supreme Court’s decision in
Sheppard v. Maxwell, 384 U.S. 333 (1966),57 Congress passed
57
In Sheppard, the Supreme Court admonished the trial
court for not protecting the rights of the defendant by insulating
the jury from prejudicial publicity. The Supreme Court noted
the tremendous burden placed on the participants of the trial by
the extensive media coverage. See Sheppard, 384 U.S. at 342-
45. The Court pointed out that although “[t]he press does not
simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism,”
some limits could be placed on the media to ensure that the trial
process proceeds fairly. Id. at 349-51. In holding that the jury
may have been unfairly influenced by the media coverage, the
Supreme Court noted that the jurors “were subjected to
newspaper, radio and television coverage of the trial while not
taking part in the proceedings.” Id. at 353. The Court
emphasized that all of the names and addresses of the veniremen
were published in the newspapers, and that “anonymous letters
and telephone calls, as well as calls from friends, regarding the
impending prosecution were received by all of the prospective
76
a law addressing the concerns raised by the Supreme Court
about the pervasive nature of modern media coverage and its
effect on the judicial process. The law, codified at 28 U.S.C. §
1863(b)(7), permits the district courts to develop their own
individual jury selection plans. See 28 U.S.C. § 1863(b)(7); see
also 28 U.S.C. § 1867(f) (permitting courts to withhold the
contents of records relating to jury selection). These plans, if
the district courts so choose, may permit the individual judges
to keep the names of prospective and trial jurors “confidential in
any case where the interests of justice so require.” See 28
U.S.C. § 1863(b)(7) (emphasis added). The legislative history
of the statute explains that the statute was intended to permit
“the present diversity of practice around the nation to continue.
Some district courts keep juror names confidential for fear of
jury tampering. Other district courts routinely publicize the
names.” See In re Globe Newspaper, 920 F.2d at 92 (quoting
H.R. Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968
U.S.C.C.A.N. 1792, 1801)). Not only does this statute indicate
that the experience of the last 40 years supports giving the
district courts great discretion in determining whether to release
the names of jurors, it also suggests that there was a significant
amount of such discretion prior to 1968, which the statute
attempted to codify and preserve. Despite its recognition that
this statute is strong evidence that no tradition of openness
jurors.” Id. at 342. The Court also noted that pictures of the
prospective jurors appeared in the newspaper during the course
of jury selection. See id. at 343.
77
existed, the Majority brushes aside the statute, and with it the
informed judgment of Congress, suggesting that it should not be
given significant weight in determining whether there is an
historical right to know the names of the jurors. See Maj. Op.,
supra, at 36-37.
The jury selection procedures employed by various
jurisdictions in implementing 28 U.S.C. § 1863(b)(7) further
undercut the Majority’s argument that the “experience” prong
supports a determination that the names of jurors were
historically available to the media as a matter of right.
Following the passage of 28 U.S.C. § 1863(b)(7), numerous
jurisdictions across the country implemented, and continue to
employ, jury selection plans that permit individual judges to
keep the names of jurors confidential. See, e.g., D. Ariz. L.R.
Crim. P. 57.2(f)(5); D. La. L. Crim. R. 53.10(E); D. Minn. L.R.
83.2(c)(5); D.N.D. L.R. 77.3(E)(5); N.D. Okla. L. Crim. R.
57.3(A)(5); D.P.R. L. Civ. R. 83.7(g)(5); W.D. Wash. L. Crim.
R. 53(c)(5). Most of the district courts in our Circuit have
developed and continue to employ similar plans. See United
States District Court for the Eastern District of Pennsylvania,
Jury Selection Implementation Plan, at ¶ 9(a), reprinted in Peter
F. Vaira, Eastern District of Pennsylvania Federal Practice Rules
Annotated 653 (2003); Juror Selection Plan, United States
District Court for the Middle District of Pennsylvania §§ 503,
904, http://www.pamd.uscourts.gov/stando/89-69.pdf (revised
Aug. 5, 1999); In re Jury Administration Procedures, Misc. 06-
211 (W .D . P a. Ju ly 13 , 2 0 06),
78
http://www.pa.wd.uscourts.gov/Documents/Forms/jury_06-
211.pdf (July 13, 2006); Revised Jury Plan of the United States
District Court for the District of Delaware for the Random
Selection of G rand and Petit Jurors, at ¶ 8,
http://www.ded.uscourts.gov/jury/juryplan.pdf (amended Apr.
10, 2002); Plan of Implementation of the United States District
Court for the District of New Jersey Pursuant to the Jury
S e le c tio n a n d S e rv ic e A c t o f 1 968, at ¶ I,
http://www.njd.uscourts.gov/jury/JURY-PLAN-FINAL-1-31-
03-apprv.pdf (revised November 1, 2002).
ii.
In addition to the plans developed by the courts in this
Circuit and those of other jurisdictions, all of which codify a
practice of giving the trial court judge discretion whether and
when to release the names of prospective and trial jurors, the
Judicial Conference of the United States has studied and
reported on the issue of how to protect trials from undue
influence and harassment by media coverage. In 1968,
following “approximately two years of deliberation and
research” by various committees and subcommittees of the
Judicial Conference on “the necessity of promulgating
guidelines or taking other corrective action to shield federal
juries from prejudicial publicity,” the Committee on the
Operation of the Jury System (“Committee”) released its report
and findings. See Report of the Committee on the Operation of
the Jury System on the “Free Press-Fair Trial” Issue, reprinted
79
in 45 F.R.D. 391, 392 (1968) (“1968 Report”). In that report,
the Committee noted that with regard to the media, “it is clear
that the court has the power and the duty to regulate the conduct
of a trial so as to insulate the proceedings from prejudicial
influences.” Id. at 401. The Committee recommended that each
District Court adopt a rule providing for special measures to be
taken in cases likely to receive significant media attention,
including a “[d]irection that the names and addresses of jurors
or prospective jurors not be publicly released except as required
by statute.” Id. at 410-11. The Committee noted that an such an
order would be consistent with the “traditional” practices of
controlling potentially prejudicial publicity. See id. at 412-13.
In 1976, the Judicial Conference authorized the
Committee to review the 1968 Free Press-Fair Trial Guidelines
and determine whether any amendments were necessary.58 See
Revised Report of the Judicial Conference Committee on the
Operation of the Jury System on the “Free Press-Fair Trial”
Issue, reprinted in 87 F.R.D. 519 (1980). Several years later, in
its 1980 report, the Committee reaffirmed its support for giving
district courts the freedom to develop special orders relating to
the conduct of jury trials. See id. at 529-30. The Committee
maintained the same language concerning such orders as that in
the 1968 Guidelines. See id. As was the case in 1968, the
Committee again noted the ability of the district courts to issue
58
The chairman of the subcommittee that studied these
issues was Third Circuit Chief Judge Collins J. Seitz.
80
orders directing that the identities of prospective and trial jurors
not be released. See id. at 529-31. Additionally, the Committee
recommended that district courts “make more extensive use of
existing techniques designed to ensure an impartial jury,” which
included withholding the names of prospective and trial jurors.59
Id. at 533-35.
iii.
Various decisions of courts from a variety of
jurisdictions, including many of the cases cited by the Majority,
have also suggested that keeping the names of prospective and
trial jurors confidential is a viable option for dealing with
potentially prejudicial media exposure. See, e.g., Press-
Enterprise I, 464 U.S. at 512 (“Even then a valid privacy right
may rise to a level that part of the transcript [of the voir dire
proceedings] should be sealed, or the name of a juror withheld,
to protect the person from embarrassment.”) (emphasis added);
Stewart, 360 F.3d at 104-05 (“First, we do not see why simply
concealing the identities of the prospective jurors would not
have been sufficient. . . . Here, partial closure was an available
and an effective means of ensuring the candor of prospective
jurors.”); Gannett Co., Inc. v. State of Delaware, 571 A.2d 735,
751 (Del. 1989); see also Hamer v. United States, 259 F.2d 27459
The Committee’s recommendations are also discussed
in Edward Devitt, et al., 1 Federal Jury Practice and
Instructions: Civil and Criminal § 4.05 (4th ed. 1992).
81
(9th Cir. 1958) (upholding trial court’s refusal to release the
names of jurors to anyone, including the defendant, against the
defendant’s Sixth Amendment challenge). Moreover, numerous
courts have used or upheld the use of anonymous juries or
anonymous voir dire in cases where media exposure or other
prejudicial influences might be a problem. See United States v.
Brown, 250 F.3d 907, 916-17 (5th Cir. 2001) (upholding refusal
to grant post-trial access to juror identities and noting that an
anonymous jury is preferable to sequestration because
“[a]nonymity protects, in addition to the jurors, the venire
persons and the jurors’ families from influence exerted by
outside parties”); United States v. Branch, 91 F.3d 699, 724 (5th
Cir. 1996); United States v. Wong, 40 F.3d 1347, 1377 (2d Cir.
1994) (noting that the “prospect of publicity militates in favor of
jury anonymity to prevent exposure of the jurors to intimidation
or harassment”); United States v. Scarfo, 850 F.2d 1015, 1023
(3d Cir. 1988); United States v. Black, 483 F. Supp. 2d 618,
623-26 (N.D. Ill. 2007) (refusing to release names of empaneled
jurors to the media); United States v. Doherty, 675 F. Supp. 719(D. Mass. 1987) (releasing names and addresses of jurors seven
days after the conclusion of the trial). Courts have also
suggested that the media’s request to know the identities of the
prospective and trial jurors can be adequately satisfied by post-
trial release of the transcripts of the voir dire proceedings, thus
suggesting pre-trial disclosure is not mandatory. See, e.g.,
Press-Enterprise I, 464 U.S. at 512 (“When limited closure is
ordered, the constitutional values sought to be protected by
holding open proceedings may be satisfied later by making a
82
transcript of the closed proceedings available within a
reasonable time, if the judge determines that disclosure can be
accomplished while safeguarding the juror’s valid privacy
interests.”); In re Globe Newspaper, 920 F.2d at 91-93, 98(permitting juror identities to be withheld prior to trial but
ordering post-trial release in light of district court’s failure to
adequately justify decision to withhold).
iv.
The nature of trial practice has undoubtedly changed over
the last few decades, let alone the last millennium.60 In
60
In particular, it is worth noting that at the origin of the
jury system, jurors were selected based on their knowledge of
the parties, their prior knowledge of the facts of the case, or their
affiliation with one of the parties. See, e.g., Valerie P. Hans and
Neil Vidmar, Judging the Jury 21-44 (1986) (discussing the
evolution of the modern American jury and noting that “our
present conception of justice and the role and functions of the
jury have sharply changed over the centuries”); Paula DiPerna,
Juries on Trial: Faces of American Justice 21-98 (1984)
(discussing the evolution of the jury system and the voir dire
process). In addition, during the early days of the jury system,
jurors were selected from a much smaller area and subset of
society. The changes of the composition and purpose of the jury
system suggest that more recent experience is far more valuable
in evaluating the role of the public in the judicial process than
is earlier experience.
83
particular, the presence of the media, and its increased role as
the surrogate of the public’s interest in ensuring the justice
system functions in a fair and effective way, has presented
courts with new challenges as they attempt to balance the
interests of the media, the public, the defendant, the
Government, the jury, and the courts. See Sheppard, 384 U.S.
at 362 (discussing the “pervasiveness” of the modern media).
Given the increased media presence and role in judicial
proceedings, the collective experience of courts over the last few
decades in managing high-profile trials is arguably more
relevant than is the early development of the jury system on
which the Majority bases its holding that jurors names were
known to the public as a matter of experience. The Majority
either marginalizes or completely ignores recent developments
in the law and recent decisions that codify existing practices,
and much of the evidence the Majority ignores indicates that the
right to force disclosure of the names of jurors is not rooted in
either history or practice. The Majority’s conclusory statement
that jurors’ names were known to the public throughout history
is further undercut by the statements of Congress and the
Judicial Conference of the United States. These bodies, after
considerable review of trial court practices as they have
developed over the course of history, came to the conclusion
that it is permissible for the individual district courts to withhold
the names of prospective and trial jurors. The fact that
numerous district courts and state courts, exercising their own
individual judgment in light of the challenges their judges face,
permit the names of jurors to be withheld is strong additional
84
evidence that the “right” the Majority announces today is not
firmly rooted in history or the collective experience of this
nation’s courts.61
Despite its admonition that any analysis of the
“experience” prong of Press-Enterprise II must necessarily
include the experience as it has developed over the last
millennium,62 the Majority largely ignores the last half-century
61
Presumably, the Majority would have us believe that 28
U.S.C. §§ 1863(b)(7) and 1867(f) are arguably unconstitutional
to the extent they restrict the media’s right to know the names of
the jurors in all but the most unusual of cases. Furthermore, the
Majority’s holding calls into question the practices of numerous
federal and state courts with regard to jury selection and
suggests that all of those courts, including many of the district
courts in this jurisdiction, are acting in contravention of the
Constitution.
62
In its discussion of the “experience” prong, the Majority
cites the historical analyses in Press-Enterprise I and In re
Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1998). Although
these cases begin their examination of the history of the jury
system in the days “before the Norman conquest,” nothing in
either case or in Press-Enterprise II explicitly supports the
Majority’s suggestion that the whole millennium’s worth of
experience must be considered. Even if the whole millennium
is considered, it makes sense to consider the right in question in
context; thus, questions about media access to trials are more
properly examined in light of recent history, when the media
85
of this millennium. The experience over the past half-century,
in the context of media outlets that gather information and report
twenty-four hours a day, seven days a week, has largely been
one of granting increased discretion to district courts in the
management of their trial procedures, not one of forcing
complete openness. I believe that the courts’ collective
experience over the last half-century is highly persuasive,
especially in light of the increased presence of the media and the
facts of this case. This experience is not, as the Majority
suggests, somehow less persuasive. Accordingly, a properly-
conducted analysis of the “experience” prong does not result in
a finding that the names of jurors were historically known to the
public, and by extension the media, as a matter of right.
2.
The “logic” prong of the Press-Enterprise II test requires
courts to evaluate whether “public access plays a significant
positive role in the functioning of the particular process in
question.” Press-Enterprise II, 478 U.S. at 8. The Majority
holds that logic dictates that knowing the names of the jurors
prior to empanelment of the trial jury “plays a significant
positive role in the functioning” of the criminal justice system.
See Maj. Op., supra, at 38. Accordingly, the Majority holds, the
District Court must disclose the names of the prospective and
trial jurors prior to the empanelment of the jury as a matter of
became much more pervasive.
86
constitutional right. The logical considerations underlying the
right of access do not require, as a matter of constitutional right,
the pre-empanelment disclosure of the jurors’ names.
The purpose of the “logic” prong is to determine whether
“the historical practice play[s] ‘an essential role’ in the proper
functioning of government . . . since otherwise the most trivial
and unimportant historical practices . . . would be chiselled in
constitutional stone.” See In re Reporters Comm. for Freedom
of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985). Indeed, not
every historical practice that plays a positive role in the judicial
process is considered a constitutional right. As the Supreme
Court has noted, the logic test allows courts to “distinguish
between what the Constitution permits and what it requires.”
Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 385 (1979). Put
another way, the question is whether announcing the names of
the jurors prior to empanelment is significantly important to the
public’s ability to oversee the jury selection process and to
ensure the judicial system functions fairly and effectively. See
also In re Reporters, 772 F.2d at 1332 (noting that the process
in question must play “an essential role”).
In determining whether a claim of access satisfies the
“logic” test, this Court has set forth a number of factors to
consider. These factors include:
[P]romotion of informed discussion of
governmental affairs by providing the public with
87
the more complete understanding of the judicial
system; promotion of the public perception of
fairness which can be achieved only by permitting
full public view of the proceedings; providing a
significant community therapeutic value as an
outlet for community concern, hostility, and
emotion; serving as a check on corrupt practices
by exposing the judicial process to public
scrutiny; enhancement of the performance of all
involved; and discouragement of perjury.
United States v. Smith, 123 F.3d 140, 146-47 (3d Cir. 1997). As
has been noted above, the question in this case is not whether
the media has a right to access the voir dire proceedings; that
right has been clearly established in the case law. The actual
question presented to us is whether the media is entitled as a
matter of constitutional right to know the names of both the
prospective and trial jurors prior to the empanelment of the trial
jury. A review of the Media-Intervenors’ demand under the
Smith factors does not support the conclusion that knowing juror
names prior to their empanelment is included in the right of
access protected by the First Amendment.
Neither the Majority nor the Media-Intervenors explains
why informed discussion or understanding of the judicial
88
process can only take place pre-trial.63 Corruption could just as
easily be rooted out post-trial as it could pre-trial. In addition,
rather than making jurors more likely to be candid in their
answers during voir dire, knowing that their personal lives and
opinions will be exposed to the public by the media will more
likely make jurors less willing to serve and less candid in their
responses. See In re South Carolina Press Assn., 946 F.2d
1037, 1044 (4th Cir. 1991) (“[T]he potential jurors will be more
candid in their responses if they do not have to worry about what
the public’s opinion of those responses might be.”); see also
Stewart, 360 F.3d at 104 (“[W]e do not see why simply
concealing the identities of the prospective jurors would not
have been sufficient to ensure juror candor.”). Suggesting that
prospective jurors will be less than candid or will perjure
themselves absent media scrutiny is entirely too cynical a view
of the judicial process and its participants. See Gannett, 571
A.2d at 750 (“Gannett’s fairness argument is based on the
presumption that jurors will not respond truthfully, and
therefore, the public requires further safeguard, which it is
claimed only the press can provide. We refuse to adopt such a
cynical view of the criminal justice system.”). Thus, the Smith
63
If anything, it would seem that knowing how the jury
ruled would put the public in a better position to decide whether
the judicial process functioned appropriately. Prior to the actual
verdict, the public can only speculate about how the jurors will
rule and whether something in their personal lives will affect
their verdict.
89
factors do not dictate the result the Majority reaches today.
In addition to considering the benefits of public access to
the names of the jurors,64 we must also consider the potential
dangers of public access. See North Jersey Media Group, Inc.
v. Ashcroft, 308 F.3d 198, 217 (3d Cir. 2002) (noting that “to
gauge accurately whether a role is positive, the calculus must
perforce take account of the flip side – the extent to which
openness impairs the public good,” and that “were the logic
prong only to determine whether openness serves some good, it
is difficult to conceive of a government proceeding to which the
public would not have a First Amendment right of access”).
Requiring district courts to bow to media demands to know the
names of prospective jurors would certainly impair the public
good in many cases. Although the media may desire this
information for the avowed purpose of opening the judicial
64
In discussing the benefits of openness, the Majority
states that it “cannot reconcile the conclusion that the public has
the right to see the process in which this power [to decide the
fate of a defendant] is exercised . . . and to see the process that
selects those who will exercise the power . . . , with the
conclusion that the public has no right to know who ultimately
exercises this power.” Maj. Op., supra, at 41. The question is
not whether the public ever has a right to know who sits in
judgment of a defendant in the vast majority of cases, however,
but whether that right to know is only logically exercised, as the
Majority suggests, prior to the commencement of the trial.
90
process to public scrutiny, the media will likely use the
information it possesses for the purpose of writing stories about
the prospective jurors. In order to gather further information,
there is a strong possibility that the media will make contact
with the prospective jurors or their families and friends before
the trial begins. Such reporting may require significant and
unwarranted invasions of the privacy of the jurors, none of
whom had a choice about being called to service. Furthermore,
it stands to reason that it is more likely that the parties or their
enemies will be able to exert influence over the jurors were they
to know their identities. Finally, knowing that jury service will
result in potential harassment and invasions of their privacy,
citizens will likely be more reluctant to serve and less likely to
be candid during jury selection. Thus, requiring pre-
empanelment disclosure of the identities of prospective jurors
raises significant concerns about hindering the public interest in
fair and orderly trials presided over by unbiased jurors.65 This,
65
The District Court’s concerns about juror harassment by
the media are somewhat justified by the experience of the
Delaware courts in Gannett:
Gannett, nevertheless, immediately published an
article in the midst of trial highlighting the names
and giving profiles of individual jurors.
Apparently, this was the first newspaper article in
Delaware to publish such information while a trial
was in progress. The article admitted that the
“jurors value[d] their privacy highly and became
91
ironically, is the very danger the right of access seeks to avoid.
In light of the foregoing analysis, the Majority’s
argument that the right of access necessarily includes the right
to have the identities of the prospective and trial jurors
extremely upset when a ... television crew
followed some of them to lunch and attempted to
film them eating.” Further, it stated that the jurors
“avoid[ed] media, family members of the victims
and defendant, and anyone else who appear[ed]
recognizable, leaving local restaurants at the sight
of a familiar face from the courtroom.” The article
then continued with detailed profiles of the jurors,
giving their names, hometowns, occupations,
marital status, number and ages of their children,
personal mannerisms and appearance. The latter
portrayals were rarely flattering. Jurors were
described as having a “stern expression”, a “stern
demeanor”, “stylishly dressed”, “admits to a
hearing problem”, “stout”, “mostly bald”, “short
and round”, and “tall, balding and thin.”
Gannett, 571 A.2d at 738.
I do not mean to suggest that the present Media-
Intervenors would consider acting in the same manner as
Gannett. Gannett merely demonstrates the possible disruption
that pre-trial disclosure of jurors’ names to the media may cause
were the media to act inappropriately, and clearly the Media-
Intervenors cannot presume to predict what other media sources
may do.
92
announced to the public prior to the empanelment of the trial
jury fails to pass the Press-Enterprise II logic test. There is no
logical support for the line the Majority draws when it requires
disclosure as a matter of constitutional right prior to the
empanelment of the trial jury.66 See, e.g., United States v.
Edwards, 823 F.2d 111, 120 (5th Cir. 1987) (noting that the
“usefulness of releasing jurors’ names appears to us highly
questionable”). The potential that pre-empanelment disclosure
will hinder the judicial process, whether by tainting the jury,
making it more difficult to select an uninformed jury, or
subjecting the jurors to harassment and depredation, far
outweighs the benefit to the public of knowing the names of the
prospective and trial jurors prior to the commencement of the
trial.67 Accordingly, I do not believe that logic supports the
66
In fact, many of the cases cited by the Majority concern
post-trial access to the identities of jurors, which suggests that
logic does not require the arbitrary pre-empanelment line drawn
by the Majority today. See, e.g., Press-Enterprise I, 464 U.S. at
512; In re Globe Newspaper, 920 F.2d at 91-93.
67
Determining whether the “logic” prong mandates a First
Amendment right of access to the names of the jurors prior to
the trial is admittedly a speculative analysis that requires a
balancing of the theoretical benefits and detriments of pre-trial
release. However, such an analysis of the theoretical benefits
and detriments is required by the Supreme Court. If anything,
the foregoing analysis makes a strong case that the decision
whether to release the names of the prospective jurors should be
93
constitutional rule announced by the Majority: that courts must
disclose the names of prospective and trial jurors to the media
prior to empanelment as a matter of constitutional law.
B.
Two cases from other jurisdictions are instructive,
although not binding, with regard to the question of whether the
First Amendment right of access includes a right to force a
district court to disclose the identity of the prospective jurors.
Both United States v. Black, 483 F. Supp. 2d 618 (N.D. Ill.
2007), and Gannett Co., Inc. v. State, 571 A.2d 735 (Del. 1990),
addressed factual and procedural circumstances virtually
identical to those presented in this appeal.
1.
Black involved a high-profile criminal fraud prosecution.
In that case, the district court, recognizing the intense media
coverage of the trial, held anonymous voir dire in open court but
entertained the peremptory challenges at sidebar. See Black,
483 F. Supp. 2d at 620-21. Following jury selection, the district
court disclosed the names of the empaneled jurors and the
left to the measured discretion of the trial judge, who is in the
best position to determine whether disclosure, in light of the
particular facts of the case, will be more beneficial than
detrimental to the public good.
94
alternates to the parties, but it did not release that information to
the media. Id. at 621. The media filed a motion to compel the
district court to release the names of the jurors and alternates
prior to trial. Id. at 620.
After engaging in an extensive discussion and analysis of
the Press-Enterprise II factors, the district court denied the
motion. See id. at 622-30. According to the district court, not
all aspects of the criminal trial process are protected by the First
Amendment’s right of access. See id. at 622 (citing circuit court
decisions holding “that the First Amendment does not guarantee
access to withdrawn plea agreements, affidavits supporting
search warrants, or presentence reports”). The court noted that
the issue in Black was not whether the media had a right of
access to the voir dire proceedings, as that question was settled,
but whether experience and logic dictated that the media had a
constitutional right to learn the names of jurors before a verdict
was rendered. See id. at 624. After reviewing decisions and
opinions from other circuit and district courts, all of which
upheld varying degrees of restriction on the media’s access to
the names of prospective jurors, the district court determined
that analyzing the voir dire process in light of the “experience”
prong of Press-Enterprise II did not result in a finding that the
media had a constitutional right to the names of the jurors prior
to the conclusion of the trial. See id. at 626. The district court
in Black also held that the “logic” prong of the Press-Enterprise
II test did not establish a constitutional right. In particular, the
district court noted that open access to juror names did not
95
achieve the same effect of vindicating the public’s right to
oversee judicial proceedings as did requiring the process itself
to be available to public scrutiny. See id. at 628 (“But open
access to juror names during the pendency of trial has no similar
effect and, in fact, disclosure enhances the risk that the jury will
not be able to function as it should, in secrecy and free of any
outside influence.”) (emphasis in original). Accordingly, the
court in Black refused to release the names to the media, having
found no constitutional right to know the names of the jurors
prior to the conclusion of the trial.
2.
As in Black, the Delaware Supreme Court in Gannett had
to determine if and when the Constitution requires public
disclosure of the names of prospective and trial jurors. Gannett
involved a high-profile murder case. Based on extensive
publicity in the prior trial of a co-defendant and overwhelming
pre-trial publicity in the case presently before it, the trial court
in Gannett decided to withhold the names of prospective jurors
from the media during voir dire; it permitted the parties to know
the identities of the prospective jurors. See Gannett, 571 A.2d
at 737. Much like the case before us, prospective jurors in the
Gannett case were only identified by their assigned juror
number. See id. The media was permitted to be present in the
courtroom and to observe and report on the proceedings. See id.
at 738. Gannett, the publisher of a state-wide daily newspaper,
intervened and petitioned the trial court to release the names of
96
the prospective jurors prior to jury selection. See id. The trial
court refused, and Gannett appealed to the Delaware Supreme
Court. See id. at 739.
The Delaware Supreme Court upheld the trial court’s jury
selection procedures, noting that because Gannett failed to
satisfy either of the Press-Enterprise II requirements, no
qualified right to the names of the prospective jurors existed
prior to jury selection. See id. at 751. According to the
Delaware Supreme Court, the issue of whether the right of
access included the right to know the names of the prospective
jurors was one of first impression, as all of the cases dealing
with the right of access concerned restrictions on the right to
view court documents or complete closures of the courtroom.
See id. at 741-42; see also id. at 742 (“To our knowledge,
however, no court has yet recognized a right of access to jurors’
names.”). Accordingly, the Court employed the Press-
Enterprise II test because it was the “most closely analogous
basis for disposition of the matter.” Id. The Court framed the
issue in the case as: whether the “announcement of jurors’
names has traditionally been open to the press and general
public.” Id. at 743. It concluded that “the historical tradition
gives trial courts discretion over [voir dire] matters, which is
reflected in express statutory provisions enacted by duly elected
representatives of the people at the state and national levels.”
Id. at 748.
In addition to determining that experience weighed on the
97
side of giving the trial courts discretion to manage voir dire
procedures, the Court held that announcing the names of the
prospective jurors had only a tenuous and insignificant logical
connection to the goals of the First Amendment’s right of
access. See id. at 751 (noting that the trial court’s procedures
“assured the public that the trial was fair without closing the
proceedings to anyone,” and that “there is nothing to suggest
that such actions undermined public trust in the judicial
system”). In so holding, the Court rejected the claims put forth
by the defendant that announcing the names of the prospective
jurors was necessary to ensure that jurors were candid in their
responses to voir dire questioning. See id. at 750. Thus, the
Court held, the media was not entitled, as a matter of
constitutional right, to the names of the prospective jurors prior
to the commencement of the trial. See id. at 751.
3.
Black and Gannett analyzed the precise question before
us in virtually identical factual circumstances. Both courts
concluded that the First Amendment right of access does not
include a right to know the names of prospective and trial jurors.
The courts in both cases undertook an extensive and thorough
analysis of the Press-Enterprise II factors in reaching the
conclusion that the decision to withhold the names of jurors,
whether before or during the trial, is within the discretion of the
trial courts. Those courts did not, as the Majority does in its
opinion, merely presume that because voir dire is generally held
98
in public and because many years ago juries were only drawn
from small communities in which people knew one another, that
there must be an historical tradition of permitting the public to
force disclosure of the names of prospective jurors.
Accordingly, although the Black and Gannett holdings are not
binding on our Court,68 they do offer a great deal of insight as to
how this Court should analyze and address the particular
question before us.
68
In their brief, the Media-Intervenors were quick to point
out that Black was a district court decision, and thus entitled to
little weight. As I have noted, however, almost all of the cases
cited by the Media-Intervenors and the Majority deal with
complete closure of the proceedings or demands for post-trial
release of jurors names. Neither the Media-Intervenors nor the
Majority have identified any binding authority that addresses the
precise question before us: whether the media has a right under
the First Amendment to force disclosure of the names of jurors
prior to the empanelment of the jury. Accordingly, to the extent
that the Black court actually reaches this precise question, its
decision is entitled to no less weight than any other authority
identified by the Media-Intervenors.
For the same reason, the Delaware Supreme Court’s
decision in Gannett is not to be ignored. If anything, Gannett’s
facts and procedural posture are almost identical to those of the
case before us. It is the most persuasive authority that has been
brought to our attention, as it is the most on-point with the facts
of the case before us.
99
C.
In conclusion, an analysis of the Press-Enterprise II test
does not support the rule announced by the Majority today.
Neither the Media-Intervenors nor the Majority has produced
convincing evidence that the public has a qualified right under
the First Amendment to force the disclosure of the names of
both the prospective and trial jurors prior to empanelment.69
69
The Majority suggests that we review de novo whether
the right of access includes a right to know the names of jurors.
See Maj. Op., supra, at 29 (citing Antar, 38 F.3d at 1356-57).
However, much of the case law concerning the right of access
places the burden of satisfying the experience and logic test,
whether explicitly or implicitly, on the party asserting the right
to access. See, e.g., Press-Enterprise II, 478 U.S. at 8; North
Jersey Media Group, 308 F.3d at 209; United States v. Corbitt,
879 F.2d 224, 228 (7th Cir. 1989); Black, 483 F. Supp. 2d at
623; Gannett, 571 A.2d at 749. To the extent that the Majority
suggests that the burden is on the Government to demonstrate
that no tradition of openness exists, this is a mischaracterization
of the burden. See Maj. Op., supra, at 34 n.27 (“[T]his would
not by itself prove that no tradition of openness exists.”). The
standard is either de novo or the burden is on the Media-
Intervenors to satisfy the Press-Enterprise II test; the burden is
not on the Government to prove the inapplicability of the Press-
Enterprise II factors. Regardless of which standard is used,
however, the claim of a right to access the names of jurors prior
to the trial fails to satisfy the Press-Enterprise II test.
100
The Majority’s analysis of whether there is an historical practice
of revealing the names of prospective and trial jurors prior to the
empanelment of the trial jury largely ignores the suggestions of
Congress and the Judicial Conference, as well as court practices
of at least the last half-century. In addition, the Majority relies
on cases granting the media post-trial access to juror names for
the proposition that the media is entitled to the names of the
jurors prior to the trial, a conclusion that does not follow from
the cited authority. Finally, the Majority offers little to support
its conclusion that the public’s desire to know the names of
jurors prior to the beginning of the trial plays such an important
role in the proper functioning of the judicial process that the
media is entitled to force pre-trial disclosure despite the trial
court’s determination that anonymity is in the best interests of
the parties and the judicial system. Simply because pre-
empanelment disclosure may play a positive role in some cases
does not, by itself, make that role so significant that pre-
empanelment disclosure is required by the Constitution. See
Gannett, 571 A.2d at 745 (“Merely because an historic
procedure exists, does not automatically enlarge it to
constitutional proportions.”).
The names of jurors are neither a “place” nor a “process,”
and the history of voir dire, especially over the last half-century,
has been one of increased discretion on the part of the district
courts. Neither “experience” nor “logic” suggests that jurors
have to be known to the public prior to the beginning of the trial
in order for the judicial system to function properly and fairly.
If anything, the anonymity of prospective and trial jurors,
especially in high profile cases, is more consistent with the
proper and fair functioning of the judicial process. See Scarfo,
850 F.2d at 1023 (“Because the system contemplates that jurors
101
will inconspicuously fade back into the community once their
tenure is completed, anonymity would seem entirely consistent
with, rather than anathema to, the jury concept.”).70
Accordingly, I cannot join the Majority’s holding that the media
has a constitutional right to know the names of the prospective
and trial jurors, and that this right must be vindicated prior to the
empanelment of the jury.
III.
The Majority’s analysis of Press-Enterprise I and Press-
Enterprise II leads it to the conclusion that the ability of the
media to force disclosure of the identities of the prospective and
trial jurors is protected as part of the First Amendment right of
access. Even if I agreed that this analysis was correct, which I
do not, I would hold that the reasons given by the District Court
in its December 21 Order were sufficient to permit the District
Court to temporarily withhold the names of the prospective and
trial jurors.
A.
As this Court has noted, the media’s First Amendment
70
See also Scarfo, 850 F.2d at 1023 (“As judges, we are
aware that, even in routine criminal cases, veniremen are often
uncomfortable with disclosure of their names and addresses to
a defendant. . . . If . . . jury anonymity promotes impartial
decision making [in high-profile cases], that result is likely to
hold equally true [even] in less celebrated cases.”).
102
right to have access to trial proceedings is not absolute.71 Smith,
123 F.3d at 147. It is, rather, a presumptive right that can be
overcome where there is a compelling reason to close the
proceedings or withhold the information. See Press-Enterprise
I, 464 U.S. at 509 (requiring the district court to show cause
“that outweighs the value of openness”). As the Supreme Court
suggested in Press-Enterprise I, a district court must place
sufficient and compelling reasoning on the record such that “a
reviewing court can determine whether the closure order was
properly entered.” See id. at 510. In light of the Supreme
Court’s jurisprudence in this area, it is necessary to determine
whether there is a compelling reason for the actions taken by the
District Court and whether those actions are narrowly tailored to
achieve the goals of the District Court. See Antar, 38 F.3d at
1359.
1.
The District Court had a number of concerns in mind
when it prepared its jury selection order. The District Court
expressed a great deal of concern about the harassment that the
71
As the Supreme Court acknowledged, some parts of the
judicial process may need to be temporarily shielded from the
scrutiny of the media in order to protect the rights of the
defendant or the rights of the jurors. See Press-Enterprise I, 464
U.S. at 509. Certain parts of the process, such as sidebar
discussions or private discussions between the parties in
chambers, have been historically conducted away from the
public. In addition to the common practice in courts, the United
States Code also protects information and records used by the
clerk of courts in connection with the jury selection process.
See 28 U.S.C. § 1867(f).
103
jurors, as well as their families, friends, and co-workers, would
face were their identities known to the media prior to the trial.
The District Court also noted that its reluctance to release the
names of the jurors prior to empanelment of the jury was based,
in part, on the effect that such media exposure would have on
the ability to select a jury that would be fair, impartial, and
willing to serve.72 As this Court has noted, a fair and impartial
jury is an essential part of our system of justice. See Gov’t of
Virgin Islands v. Riley, 973 F.2d 224, 226 (3d Cir. 1992) (“It is
axiomatic that one of the fundamental rights a defendant
possesses is the right to a fair trial before an impartial,
72
The Majority casually casts aside the District Court’s
concern that the Media-Intervenors want to publish stories about
the prospective jurors prior to the empanelment of the jury. In
light of the prevalence of the news media in modern society and
the risk that jurors could be influenced by media coverage or
hindered in their ability to be impartial, I would not be so
cavalier in dismissing the District Court’s concerns. It is
difficult to imagine that it would be possible to pick a fair,
impartial, and willing jury that has no outside knowledge of the
case if the news media camps outside of the jurors’ houses and
questions them on their way to the courthouse. This is not to
suggest that the Media-Intervenors’ motives are improper or that
these particular media outlets will attempt to harass or write
stories about these jurors. Nevertheless, other members of the
media could do so. The District Court is likely correct,
however: the media in general wants the names of the
prospective jurors in order to publish stories about them. Such
stories will arguably require contact between the Media-
Intervenors, or other members of the media, and the prospective
jurors, which runs the risk of further diminishing the pool of
impartial prospective jurors in a case that has already received
a great deal of local, state, and national media attention.
104
‘indifferent’ jury of his peers.”). Thus, protecting the jury from
harassment and outside influence is essential to ensuring that the
jury’s verdict is free from doubt.
The District Court’s concern about protecting the privacy
of the jurors goes in tandem with the aforementioned concern
about avoiding potential outside influences on the jury. In the
December 21 Order, the District Court noted its concern about
the privacy of the prospective and trial jurors given the
tremendous media attention this trial has garnered. The privacy
of jurors is a significant interest, as protecting that privacy is the
best way to avoid harassment of the jurors. See Press-Enterprise
I, 464 U.S. at 511-12; see also id. at 519 (Stevens, J.,
concurring) (“As the Court recognizes, the privacy interests of
jurors may in some circumstances provide a basis for some
limitation on the public’s access to voir dire.”). As with the
concern about the potential for the Media-Intervenors to
influence or deter the jury from impartial consideration of the
case, however, the Majority dismisses this concern without
much discussion, noting that: “The District Court has not
established that there is anything unusual about this case, aside
from a locally prominent defendant, that makes the prospective
jurors’ hypothetical privacy concerns more compelling than
usual.” 73 See Maj. Op., supra, at 45. Certainly, ensuring that
jurors are not harassed, influenced, deterred from service, or
hindered in their ability to be honest in their answers at voir dire
73
Arguably, the number of pre-trial motions and
interlocutory appeals, the prominence of the defendant, the
intervention of the media in the matter, and the significant media
coverage this case has already garnered suggest that this case is
far from the usual, run-of-the-mill criminal prosecution.
105
in such a high-profile criminal case 74 is a compelling reason for
limiting the amount of information to which the media has
access before and during the trial.75
74
The Supreme Court discussed how jurors in another
high-profile case were harassed:
As a consequence [of publishing the names and
addresses of the prospective jurors], anonymous
letters and telephone calls, as well as calls from
friends, regarding the impending prosecution
were received by all of the prospective jurors. . .
. [N]umerous pictures of the jurors, with their
addresses, which appeared in the newspapers
before and during the trial itself exposed them to
expressions of opinion from both cranks and
friends. The fact that anonymous letters had been
received by prospective jurors should have made
the judge aware that this publicity seriously
threatened the jurors’ privacy.
Sheppard, 384 U.S. at 342, 353.
75
The Majority suggests, without qualification or
explanation, that making the identities of the prospective jurors
known to the media prior to empanelment of the jury might deter
misrepresentation or reveal juror bias. Just as strong an
argument can be made that allowing the media to report on the
answers given by the individual jurors during jury selection
would make those jurors less likely to be forthcoming in their
answers. See In re South Carolina Press Ass’n., 946 F.2d at
1044 (“[T]he potential jurors will be more candid in their
responses if they do not have to worry about what the public’s
opinion of those responses might be.”). Certainly in a case such
as the instant one, which has political, religious, and cultural
undertones, it is more compelling to ensure that prospective
jurors are more open in revealing their personal biases, not less
106
The other concerns voiced by the District Court are no
less compelling. The District Court considered the possibility
that friends or enemies of Dr. Wecht might attempt to harass or
influence the jury were the identities of the prospective and trial
jurors known to the public before and during the trial. Dr.
Wecht is a prominent political figure in western Pennsylvania,
and many may perceive this prosecution as politically-
motivated. Dr. Wecht has testified in hundreds of trials
regarding causes of death, and his testimony has frequently led
to findings of guilt or liability. He is a prominent commentator
and writer as well, as the letters to the editor included in the
record reveal. Although Dr. Wecht is not of the same ilk as the
organized crime figures in cases such as United States v. Scarfo,
he is nonetheless a prominent and controversial figure. Given
his position as a prominent political figure and an elected
official, it is entirely possible that there are members of the
public who have an interest is seeing a particular outcome in this
case.76 In addition, Dr. Wecht stands to be deprived of his
open, as will likely be the result of the Majority’s decision to
grant the Media-Intervenors unlimited pre-trial access to the
identities of the prospective and trial jurors.
76
Both the Majority and Dr. Wecht acknowledge that he
has enemies that might be interested in seeing that he is found
guilty. See Maj. Op., supra, at 49 (“Wecht made these
statements [concerning the possibility that his enemies might
attempt to influence the jury] in support of the opposite
conclusion: that the jury should not be anonymous because the
defense and the media must be able to ensure that Wecht’s
enemies do not enter the jury pool without being detected.”).
Although the Majority refers to this portion of Dr. Wecht’s brief
in support of openness, the fact that those enemies might attempt
107
liberty based on the jury’s verdict, so ensuring that the jury is
fair and impartial, and that their verdict is free from doubt, is
even more compelling in the instant case. As the District Court,
and not this Court, is in the best position to judge the likelihood
of potentially harmful influences on the jury, we should give the
District Court’s evaluation of the “local ambience” of the trial
a great deal of weight when deciding whether its reasons for
limiting the media’s access are in fact compelling. See Scarfo,
850 F.2d at 1023.
2.
With regard to the second part of the First Amendment
test, that the procedures adopted by the district court be narrowly
tailored to achieve the court’s stated goals, the District Court’s
limit on the media’s access to the names of the prospective and
trial jurors only before and during the trial passes constitutional
muster. The District Court’s restrictions on media access in this
case are extremely limited. According to the District Court’s
order, the media is entitled to be present for all phases of voir
dire. They are entitled to review the questions asked on the
questionnaire prior to the beginning of jury selection. The
challenges for cause, although made solely on the basis of the
questionnaire and without the benefit of in-court questioning,
will be made in open court. The parties will then interview the
individual prospective jurors before making their peremptory
to influence the trial does not logically require that the District
Court must disclose the names prior to empanelment.
Additionally, it would seem to be a common sense proposition
that it is much harder for non-jurors to influence the jury if they
do not know who the actual jurors are.
108
challenges; this will likewise be done in open court and under
the scrutiny of the media. Finally, the media will have access to
the completed questionnaires following the conclusion of the
trial. The media thus has access to almost every aspect of, and
piece of information related to, jury selection. The only
information that the media is not permitted to know before and
during the trial is the identity of the individual prospective and
trial jurors, as they will be referred to only by their assigned
number. Thus, the District Court’s restrictions are entirely
different from those at issue in Antar, on which the Majority
relies. See Antar, 38 F.3d at 1350 (holding that sealing of
transcript of voir dire proceedings was improper and that the
media was entitled to the complete transcripts after the trial
concluded). In Antar, unlike this case, the media was denied
access to the entirety of the voir dire process by virtue of the
seal placed on the transcripts.77 Here, the District Court’s
measures to ensure a fair and proper trial were much more
narrowly tailored.78
77
As I noted in previous sections, almost all of the case
law concerning the right of access deals with complete closure
or post-trial denials of access to judicial records. See, e.g.,
Press-Enterprise I, 464 U.S. at 504 (discussing the fact that the
trial judge held only three days of public voir dire hearings and
closed the additional six weeks of jury selection to the public);
Antar, 38 F.3d at 1351 (noting that although the voir dire
proceeding was technically “open” to the public, the press was
excluded based on an order from the trial judge for the purpose
of freeing up additional seats).
78
Indeed, the Second Circuit suggested that although
complete closure of the voir dire process was improper, more
limited closure, including the withholding of the identities of the
109
B.
The jury selection procedure employed by the judge in
the instant matter was a compromise based on the various
interests at stake: the public’s interest in openness, the media’s
interest in knowing certain information, the defendant’s interest
in a fair trial, the jury’s interest in privacy and being free from
harassment and intimidation, and the judicial system’s interest
in fairness and efficiency. Certainly, the District Court could
have taken other action, including sequestering the jury.79
Sequestration, however, is “one of the most burdensome tools
of the many available to assure a fair trial,” and it should only be
employed if there are no other, less burdensome or more
effective options available. See Mastrian v. McManus, 554 F.2d
813, 819 (8th Cir. 1977); see also Gannett, 571 A.2d at 751. In
the instant case, the extremely limited restrictions on media
access were far more accommodating to the Media-Intervenors,
as well as far less burdensome on the jurors and the court, than
sequestration would have been.
In order to effectively satisfy the various, and often
competing, interests of the public, the media, the defendant, the
government, the jurors, and the courts, the District Court in this
case chose the least restrictive means to achieve its goals when
it permitted the media access to everything except the identities
prospective jurors, would pass constitutional muster. See
Stewart, 360 F.3d at 104-06.
79
And, of course, we would review such a decision for
abuse of discretion. See United States v. Shiomos, 864 F.2d 16,
18 (3d Cir. 1988) (citing Holt v. United States, 218 U.S. 245,
251 (1910)).
110
of the prospective and trial jurors. The District Court clearly
stated sufficiently compelling reasons to warrant some manner
of protection for the jurors. The concerns of the District Court
were not, as the Majority so casually suggests, merely
generalized concerns about juror privacy.80 Given the District
Court’s extremely narrow and temporary imposition on the
Media-Intervenors, the Majority’s conclusion that the District
Court’s actions were not narrowly tailored to protect a
80
In fact, the District Court considered and made findings
related to every potential risk to the jury from overexposure that
the Majority articulates in its opinion. See Maj. Op., supra, at
40 (“First, when the names of jurors are public, friends or
enemies of a criminal defendant may find it easier to influence
the jury’s decision. In an extreme case, this could take the form
of threats to the jurors or their family members. Second, if
jurors know that the media will attempt to contact them or their
families, they may resist serving on high-profile cases at all
because they fear that their privacy will be threatened. Third,
public knowledge of jurors’ identities might actually increase
the risk of misrepresentation at voir dire, because some jurors
will be tempted to lie in order to avoid the disclosure of
embarrassing information.”). The Majority’s disagreement with
the District Court’s conclusions as to the dangers to the jury and
the trial process is not by itself a sufficient reason to overturn
the District Court’s jury selection procedures. Although I
recognize that our standard of review is less deferential to the
findings of the District Court where a constitutional right to
access is raised, the Majority today not only fails to defer to the
District Court’s evaluation of the circumstances surrounding its
trial, it appears to ignore the District Court’s judgment entirely.
111
compelling interest is incorrect.81 Accordingly, I would have
upheld the District Court’s jury selection order.
IV.
The biggest problem with the Majority’s holding is the
nature of the remedy the Majority fashions for the alleged
violation of the First Amendment. To reverse the District
Court’s December 21 Order and to order the District Court to
disclose the names of the prospective and trial jurors is not only
premature, it improperly invades the traditional purview of the
district courts. Given the state of the law and the facts of this
case, as well as the fact that the case was neither further briefed
nor argued, the Majority’s decision to grant the Media-
Intervenors’ request for reversal is not appropriate.
The Majority today redefines the contours of the well-
established right of access in such a way as to now include a
constitutional right to know the names of the prospective and
81
As I noted in Part II, supra, the First Amendment does
not require that the District Court disclose the names of the
prospective and trial jurors prior to the empanelment of the jury.
We should reserve judgment on the question of whether such a
right may exist after the conclusion of the trial, as that is not the
question before us. As the District Court’s order related to the
conduct of the trial, a province left almost entirely to the control
of the District Court, its actions should be reviewed to determine
if there was an abuse of discretion. In light of the foregoing
discussion, the reasons cited by the District Court are more than
sufficient to uphold its discretionary decision to withhold the
names of the prospective and trial jurors during the pendency of
the trial. Thus, there was no abuse of discretion.
112
trial jurors even before the trial jury is seated. As discussed in
the preceding sections, the law is far from clear that the right of
access includes such information. There is even less support in
the case law for the Majority’s holding that this right to know
the names of the jurors must be vindicated before the jury is
empaneled. Despite this seeming lack of clarity, which the
Majority does acknowledge, the Majority nonetheless holds that
the law is so clear as to warrant vacating the District Court’s
December 21 Order and ordering it to divulge the names of the
prospective and trial jurors. Announcing a new constitutional
protection for the media’s interest in learning juror identities
before empanelment without additional briefing or oral
argument on the unsettled legal question is ill-advised.82
The Majority also should not have reversed the District
Court without giving it an opportunity to make additional
findings in light of the new constitutional right announced by
the Majority. The District Court clearly believed that the ability
to establish such procedures for jury selection was within in its
82
The Media-Intervenors’ motion asked this Court for
summary reversal under I.O.P. 10.6 or a stay of jury selection.
Accordingly, the briefs filed by the parties addressed and
focused on those questions. Both Rule 10.6 and the rules
governing stays have different standards and tests than does the
question before us, however. There was no additional briefing
specifically focusing on the issues of whether the right of access
includes a right to force the disclosure of the jurors’ names and
whether the right must be vindicated prior to the empanelment
of the jury, as the Majority suggests. This Court would have
benefitted from more deliberation and either additional briefing
at the direction of this Court or oral argument on these
questions.
113
discretion. There is little in the record that suggests that the
District Court was aware that the media’s interest in knowing
the names of the prospective jurors was protected as a
constitutional right, and thus it did not analyze the Media-
Intervenors’ motion under the more rigorous First Amendment
test. Effectively, the Majority substitutes its judgment for that
of the District Court, which is clearly in a better position to
judge the problems that may arise. We should not micro-
manage aspects of district court proceedings that are
traditionally within the discretion of those courts. Simply
because we might have done otherwise if we were the trial
judges does not mean that the circumstances of this case do not
warrant such action.83
83
See, e.g., Gall v. United States, 128 S. Ct. 586, 597
(2007) (“The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.”). Indeed, if
this were a sentencing case in which a district court failed to
give sufficient reasons to warrant a variance, we would vacate
the sentence and remand for additional reasoning supporting
such a variance. See, e.g., United States v. Kononchuk, 485 F.3d
199, 206 (3d Cir. 2007) (vacating the defendant’s sentence and
remanding for a new sentence with additional explanation after
determining that the District Court’s consideration and
explanation of the § 3553(a) factors was insufficient). We
would not, nor have we ever, remanded and ordered the district
court to impose a particular sentence. See Greenlaw v. United
States, 554 U.S. — (2008) (holding that absent government
appeal or cross-appeal, appellate courts cannot sua sponte
increase a defendant’s sentence, even if the district court
committed procedural error in calculating the appropriate
sentence). Additionally, we would not have allowed an appeal
before the district court had even imposed sentence.
114
As this Court has noted, “‘[a] criminal trial is, even in the
best of circumstances, a complicated affair to manage.’” United
States v. Rivera, 384 F.3d 49, 55 (3d Cir. 2004) (quoting United
States v. Jorn, 400 U.S. 470, 479-80 (1971)). By holding today
that the media has a right to the identities of the jurors that
attaches before empanelment, and by permitting appeals of
alleged deprivations of that right on an interlocutory basis, the
Majority handcuffs the district courts and makes it all the more
difficult for district judges to manage the complexities of
criminal trials. In effect, the Majority today elevates almost
every voir dire procedure the media finds inconvenient to a
constitutional issue. In addition, the Majority draws a line
delineating when the “right” to know the identities of the jurors
purportedly attaches, despite a great deal of case law and
practice that suggests that no such right exists or that if the right
does exist, it can be fully vindicated at a later time. And the
Majority does all of this without argument or additional briefing
as to whether declaring the existence of this right is consistent
with traditional practices.
We should have charted a much more cautious course in
light of the admittedly unclear state of the law on this question.
Rather than act in so hasty a fashion and without more
information and deliberation, we should have remanded the
issue to the District Court for additional fact-finding in light of
the newly-announced constitutional protection for access to the
identities of prospective jurors. The District Court, and not this
Court, is most familiar with the particular issues surrounding the
conduct of the trial and the pressures facing jurors. We should
give some credit to the District Court’s evaluation of the “local
115
ambience” surrounding the trial of Dr. Wecht.84
The District Court took the actions it believed were
necessary to effectively protect the various competing interests
and rights implicated by such a public and lengthy trial. The
District Court should not be doomed and controlled in the
conduct of its trial merely because it failed to articulate clearer
reasons to satisfy a standard it could not have been aware
existed before today’s opinion. If the refusal to disclose the
names of the prospective jurors prior to the empanelment of the
jury is now a constitutional violation, as the Majority’s holding
establishes, the District Court should have the opportunity to
modify its trial procedures to comport with this new rule. 85
V.
As I have set forth in the preceding sections, I dissent
84
As we have noted, we should defer to the trial court
judge’s evaluation of the need to protect the jurors, as he is “on
the scene and [has] a vantage point superior to ours.” See
Shiomos, 864 F.2d at 18. The Majority recognizes as much,
noting that “district judges are well-positioned to address these
risks on a case-by-case basis, and in such cases, to make
particularized findings on the record . . . .” See Maj. Op., supra,
at 41. Despite this recognition, the Majority affords the District
Court almost no deference in its review of the need to protect
the jurors in this case.
85
At the very least, this Court should have deferred
judgment on the issue of whether the Media-Intervenors are
entitled to the names of the jurors until after the trial, at which
point the interest in protecting the jurors is less persuasive.
116
from the Majority’s holding on a number of grounds. I do not
believe that an order setting forth trial procedures is generally
appealable as a collateral order, nor do I believe that the order
at issue in this case is sufficiently final such that interlocutory
review is warranted. Additionally, I disagree with the
Majority’s analysis of Press-Enterprise II, as it either ignores or
marginalizes a statute passed by Congress, a great deal of case
law, a history of giving trial judges significant discretion over
the conduct of jury selection, the recommendations of the
Judicial Conference, and the practices of many of this nation’s
courts.
In this age of pervasive media coverage, which is
necessary to ensure that the public is informed and can satisfy its
duty of overseeing the judicial process, it is critical to permit
district courts to do what is necessary to ensure that the judicial
system functions properly. If anything, giving the district courts
the discretion to keep the identities of jurors confidential for a
period of time significantly advances the goal of ensuring a fair
and impartial criminal justice system. See Scarfo, 850 F.2d at
1023; see also Sheppard, 384 U.S. at 362-63. The District
Court’s voir dire procedures sufficiently balance the various and
often competing interests implicated by such high-profile
criminal trials, and the procedures it selected are far less onerous
than sequestering the jury would be. See Gannett, 571 A.2d at
751. I cannot support the Majority’s decision to micro-manage
the voir dire procedures of the Wecht trial by vacating the
District Court’s order.
In my opinion, the District Court should, in the exercise
of its discretion, release the names of the prospective jurors who
were not selected for the trial jury following the seating of the
117
trial jury. I hold this opinion because I believe that in light of
the facts and circumstances of this case, such action would be an
appropriate exercise of the District Court’s discretion. With
regard to the names of the actual trial jurors, the District Court
is entitled to keep the names of the trial jurors confidential
during the trial. I express no opinion as to whether the names of
the trial jurors should be released after the trial, whether as a
matter of constitutional right or the District Court’s discretion,
though I note that the reasons it has set forth for concealing the
identities of the trial jurors become less persuasive once the trial
is completed. See Capital Cities Media, Inc. v. Toole, 463 U.S.
1303, 1306 (1983) (“[T]he State’s interest . . . in shielding
jurors from pressure during the course of the trial . . . becomes
attenuated after [the verdict].”). I do not mean to suggest,
however, that the District Court has to do what I have suggested
because the Constitution requires it. The Constitution does not,
as the Majority suggests, require pre-empanelment disclosure;
thus, the Majority’s invasion of the traditional realm of the
district courts’ discretion is not justified.
Because I cannot join in an opinion that will cause so
many problems in our district courts, that establishes a new class
of interlocutory orders, that effectively creates a new
constitutional right, and that sets a precedent of permitting our
Court to micro-manage trial procedures established by the
district courts, I respectfully dissent.
118