United States v. Rod Blagojevich ( 2010 )

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 14, 2010
By the Court:
No. 10-2359
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OD B LAGOJEVICH and R OBERT B LAGOJEVICH,
Defendants.
A PPEAL OF:
C HICAGO T RIBUNE C OMPANY, T HE N EW Y ORK T IMES
C OMPANY, ILLINOIS P RESS A SSOCIATION, and
ILLINOIS B ROADCASTERS A SSOCIATION
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 888—James B. Zagel, Judge.
Order
After the court issued its opinion on July 2, 2010, a
judge called for a vote on the judge’s suggestion of re-
hearing en banc. This procedure is appropriate under
2 No. 10-2359
Fed. R. App. 35(a), because, although Rule 35 authorizes
litigants to file petitions for rehearing en banc, it does not
condition en banc consideration on the filing of a peti-
tion. This court regularly hears cases en banc, without a
litigant’s petition, under the procedure established by
Circuit Rule 40(e). A grant of rehearing en banc on the
court’s own motion is equally permissible when the
panel issues its opinion without a Rule 40(e) circulation.
A majority of the judges in active service have voted
not to hear this appeal en banc. Judges Posner, Kanne,
Williams, and Sykes voted to hear the appeal en banc.
Circuit Judge Flaum did not participate in the con-
sideration or decision of this case.
P OSNER, Circuit Judge, with whom K ANNE, W ILLIAMS,
and SYKES, Circuit Judges, join, dissenting from denial of
rehearing en banc. An experienced trial judge made a
reasonable determination that the release of jurors’
names before the end of the trial would expose the
jurors to the widespread mischief that is a daily if not
hourly occurrence on the Internet. The jury is not “anony-
mous.” The jurors’ names are known to the parties and
will be available to the public at the end of the trial. Given
the extremely high profile of this case nationwide as well
No. 10-2359 3
as in Illinois, and the unusual attention-getting conduct of
the principal defendant and his wife, there is no good
argument for releasing the jurors’ names before the trial
ends.
I’d like to be able to end this opinion right here. But the
procedural complexities of the case and the unsound and
confusing analysis in the panel’s opinions require that
I soldier on.
The original panel opinion was issued on July 2 (the
amended opinion was issued on July 12). Later that day
a member of the court asked for a vote on whether to
rehear the case en banc. That is a sufficiently rare proce-
dure to merit a brief comment.
A court is authorized to rehear a case without a request
by a party. Western Pacific R.R. Corp. v. Western Pacific
R.R. Co., 345 U.S. 247, 262-63 (1953); see also 28 U.S.C.
§ 46(c); Fed. R. App. P. 35(a) and Committee Notes;
United States v. Shapiro, 383 F.2d 680, 681 n. 1 (7th Cir. 1967)
(en banc); Radiant Burners, Inc. v. American Gas Ass’n, 320
F.2d 314, 317 (7th Cir. 1963) (en banc); United States v.
Padilla, 403 F.3d 780 (1st Cir. 2005) (en banc); Cooper v.
Woodford, 357 F.3d 1054 (9th Cir. 2004); Mahony v. CSX
Transportation, Inc., 980 F.2d 1379 (11th Cir. 1993) (en banc).
Although such requests have been rare in this court,
several years ago another member of the court did make
one, United States v. Gipson, 431 F.3d 993 (7th Cir. 2005), and
the propriety of doing so cannot be questioned.
After the judges exchanged comments, but before the
voting on whether to grant rehearing en banc was com-
4 No. 10-2359
plete, the panel decided to alter its opinion to meet some
of the concerns expressed in the exchange of comments.
This is not an unusual response when rehearing en banc
is sought; it is entirely proper. But what is irregular is
that the panel issued its amended opinion at the same
time that it circulated it, even though several judges
eligible to vote on whether to rehear the case en banc
had not yet done so—they were awaiting the circulation
of the amended opinion. In any event the amendments
to the original opinion are perfunctory, confusing, and
internally inconsistent.
The case is exceptional and the issue presented by
the appeal merits the attention of the full court. The trial
of ex-governor Rod Blagojevich and his brother is the
most closely followed criminal proceeding in this circuit
since the trial of Rod Blagojevich’s predecessor as gov-
ernor of Illinois, George Ryan; and the reversal of Judge
Zagel’s denial of the media’s request for access to the
names of the jurors while the trial is still going on has
cast a cloud over the trial.
Before jury selection, the district judge promised the
pool of prospective jurors that he would not make
public the names of the jurors selected for the trial until
the trial ended. If as a result of the panel’s decision and
the hearing that it has ordered, or of a subsequent
appeal should the judge reaffirm his ruling after the
hearing, he is forced to renege on his promise, the jurors
may well be upset, concerned for their privacy, fearful
of the prospect of harassment (the prosecutors have
already sought a gag order against Rod Blagojevich
No. 10-2359 5
because of his out-of-court statements about the case), and
angry at having been induced by false pretenses to agree
to take months out of their life to perform jury service.
(Although jurors are conscripts rather than volunteers,
as a practical matter jurors unwilling to sit in cases ex-
pected to last months are excused.)
The jurors know by now that a hearing has been
ordered to explore whether to continue to maintain the
confidentiality of their identities. One of the successful
media appellants lost little time in spreading the word. See
John Chase, “Identities of Blagojevich Jurors Could Be
Made Public,” Chicago Tribune, July 2, 2010, http://articles.
chicagotribune.com/ 2010-07-02/news/ct-met-blagojevich-
jurors-20100702_1_juror-names-jurors-names-corruption-
trial (visited July 7, 2010). Other media have chimed in.
See “Blagojevich Jurors,” Google, www.google.com/#hl=
en & & sa=X & ei=j-c3T K f4M 8 W B l A e p q 5 n T B w & ved =
0C BsQvw UoA Q & q =blagojevich +ju rors& sp ell=1& fp =
45f7bf772e327ef3 (visited July 9, 2010); see also
“Blagojevich Jurors Identities,” Google, www.google.com/
#hl= en&source=hp&q= blagojevich+ jurors+identities&aq=
f& aqi=g-p 1& aql=& oq=& gs_rfai=CL9ZBbXg8TNfgFJX
6gAS684TmBwAAAKoEBU_Q9NOn&fp=45f7bf772e327ef3
(visited July 13, 2010). The panel opinions ignore the
jurors’ likely reactions to the news that the judge must
conduct a hearing to determine whether to reveal their
names. Conceivably he may decide to declare a mistrial.
Should that happen, and the case be retried, what will the
new pool of prospective jurors think?
The elaborate preparations that the government would
have had to make for presenting the extensive evidence
6 No. 10-2359
called for by the original panel opinion would have
delayed the end of a trial that even without such an in-
terruption was expected to last between 15 and 17 weeks.
(The trial began on June 3, and so may last another 10 to
12 weeks, although there is speculation in the media that
it will be over sooner.) Jurors wouldn’t like to be told
that it would take even longer for them to regain
their freedom because of the judge’s having to conduct
a hearing of uncertain length to determine whether they
shall retain their privacy—a matter of great interest to
them, though the panel opinions do not suggest that they
be consulted about it.
The original panel opinion told the district judge to
conduct a hearing that would produce answers to
the following “vital questions. Have jurors in other publi-
cized cases been pestered electronically (email, instant
messaging, or phone calls), or by reporters camped out
on their doorsteps? If judges in other high-visibility
cases have told the jurors to ignore any unsolicited email
or text messages, have those instructions been obeyed?
If not, do any practical alternatives to sequestration
remain? The Department of Justice, and the lawyers
who represent the press, may be able to present evidence
and arguments that would be helpful in addressing
those issues.” (Emphasis in original. As a detail, the
word “sequestration” is used in error; it means isolating
the jurors from contact with the outside world during
the trial.) Evidence about jury experiences or behavior
in similar trials would be difficult to obtain, especially
since electronic harassment is a relatively new phenome-
No. 10-2359 7
non of which little empirical evidence may yet exist. A
hearing to address these issues in the depth required by
the original opinion could not have been completed
quickly.
The amended opinion substitutes for “vital” the words
“potentially important,” while leaving the list of eviden-
tiary inquiries unchanged. The opinion then inserts a
new paragraph, which I must quote in full:
What evidence the judge must consider depends on
what the parties submit. We do not imply that any of
the subjects mentioned above is indispensable to a
decision. In Black the parties chose not to present any
evidence, and the court then decided in light of the
parties’ arguments and the judge’s experience with
jurors’ concerns and behavior. The district judge in
this case has referred elliptically to efforts to contact
him by email and in other ways; perhaps putting
details on the record would help to make concrete
some potential effects of disclosing jurors’ names
while the trial is under way. What is essential—what
occurred in Black but not so far in this case—is
an opportunity for the parties (including the inter-
venors) to make their views known in detail, followed
by a considered decision that includes an explana-
tion why alternatives to delayed release of the
jurors’ names would be unsatisfactory.
In fact the parties in this case had exactly the same
opportunity “to make their views known in detail” and,
if they wanted, present evidence as the parties in the
Black case (discussed later in this opinion); in neither case
8 No. 10-2359
did the parties present any evidence of consequence.
(Paradoxically, some evidence was presented in this
case—none in Black.) The handling of the issue by the
two district judges was materially identical, and the
amended opinion is as a result incoherent. That is the
central issue, to which I return later in this opinion. For
now the point to note is that the new paragraph of the
amended opinion contradicts an unaltered portion of the
original opinion in which the panel indicated that an
evidentiary hearing is required whenever media seek
the names of jurors before the end of a trial because
otherwise the district judge would be “act[ing] without
evidence,” contrary, the panel said, to Presley v. Georgia, 130
S. Ct. 721 (2010) (per curiam), and Waller v. Georgia, 467
U.S. 39 (1984). That is wrong. Presley just requires appro-
priate findings, and Waller protects the defendant’s Sixth
Amendment right to a public trial, which is not infringed
when the media rather than the defendant object to a
closed proceeding. Extending the defendant’s entitlement
to the media, whose right under the First Amendment
to information is no greater than the ordinary citizen’s,
Pell v. Procunier, 417 U.S. 817, 833-35 (1974); Branzburg v.
Hayes, 408 U.S. 665, 684-85 (1972); Hammer v. Ashcroft, 570
F.3d 798, 799 (7th Cir. 2009) (en banc), would mean that
anytime someone objected to the temporary concealment
of the jurors’ identities the judge would have to inter-
rupt the trial to hold a hearing.
One way to read the new paragraph of the amended
opinion is that there must be an evidentiary hearing,
covering the “important” issues flagged in the opinion’s
preceding paragraph (no other issues relating to whether
No. 10-2359 9
to release the jurors’ names before verdict are men-
tioned), unless it is waived. It was waived, as we’ll see,
but in any event trial-type evidence is neither required
for, nor likely to be helpful in, the judge’s exercise of dis-
cretion to withhold jurors’ names from the public until
the trial ends. Most trial rulings that a judge makes are
based on experience and common sense rather than on
evidence. Think of the jury voir dire, the phrasing of
instructions, the allotment of trial time to the parties,
rulings under open-ended standards such as Fed. R.
Evid. 403 on objections to the admission of evidence, the
trial schedule, and when to direct a mistrial if the jury
seems hung. Whether to protect the jurors’ identities
until the end of the trial is a similar question, calling for
an exercise of judgment rather than a taking of evidence.
The panel’s initial decision to require a hearing was
based on a misreading of Presley, a case in which the
trial judge had closed the entire jury voir dire to the
public on no coherent ground. At one point he sug-
gested that there was no space in the courtroom for the
defendant’s uncle, at another that he didn’t want family
members “interming[ling] with members of the jury
panel.” The Supreme Court reversed but expressly de-
clined to consider what procedures a court must use
to determine whether to exclude members of the public.
130 S. Ct. at 725. The misreading of Presley remains
unchanged in the amended opinion, while the insistence
on a hearing, which the panel had inferred from that
misreading, has been either eliminated or diluted—
I wish I knew which.
10 No. 10-2359
Judge Zagel, the district judge in the present case,
ruled that the appellants’ complaint was untimely. Their
opening brief in this court did not challenge that ruling.
The judge had told the media on May 17 of his decision to
protect the confidentiality of the jurors’ identities. Al-
though trial had already been scheduled to begin on June
3, the media did not move to intervene to challenge the
judge’s decision until June 1. Whether that was too late is
arguable; what is unarguable is that the appellants, having
failed to challenge the judge’s ruling on timeliness, for-
feited the challenge. J.S. Sweet Co. v. Sika Chemical Corp., 400
F.3d 1028, 1035 n. 2 (7th Cir. 2005).
The panel opinion (in this as in most respects un-
amended) says the government waived the appellants’
forfeiture at the oral argument. But a waiver is a
voluntary relinquishment of a known right, United States
v. Olano, 507 U.S. 725, 733 (1993); Estate of Luster v.
Allstate Ins. Co., 598 F.3d 903, 912 (7th Cir. 2010), and by
not complaining about the appellants’ failure to chal-
lenge the judge’s ruling on timeliness the government
forfeited rather than waived its complaint. At argument
the government’s lawyer said “it would appear that the
government, by not raising the potential waiver of the
timeliness issue by our opponent, could be seen by the
court as having waived the waiver, so we acknowledge
that fact. However, the court does not need to accept our
waiver, and we don’t express an opinion regarding the
briefs.” It is apparent from the passages that I’ve
italicized that the lawyer was acknowledging forfeiture,
not waiver, though as lawyers (and for that matter judges)
often do was using “waiver” as a synonym for “forfeiture.”
No. 10-2359 11
Anyway a court is not bound by a waiver or forfeiture,
and not only when the waived or forfeited argument is
jurisdictional. United States v. Schmidt, 47 F.3d 188 (7th
Cir. 1995); United States v. Contreras-Ramos, 457 F.3d 1144,
1145 (10th Cir. 2006); see also United States National Bank
v. Independent Ins. Agents of America, Inc., 508 U.S.
439, 447 (1993); City of Oklahoma City v. Tuttle, 471 U.S. 808,
815-16 (1985); Humphries v. CBOCS West, Inc., 474 F.3d
387, 391-92 (7th Cir. 2007); Massachusetts Bay Ins. Co. v. Vic
Koenig Leasing, Inc., 136 F.3d 1116, 1122 (7th Cir. 1998);
Amcast Industrial Corp. v. Detrex Corp., 2 F.3d 746, 749-50
(7th Cir. 1993); Aetna Casualty Surety Co. v. P & B Autobody,
43 F.3d 1546, 1571 (1st Cir. 1994). I don’t know why the
government forfeited the timeliness objection to the
appeal. It may have sought a broader victory. But a liti-
gant’s tactical decision to go for broke should not tie
our hands. This is a case of successive forfeitures, by the
appellants and by the appellee. As in Schmidt and
Contreras-Ramos, we should excuse the second forfeiture
rather than the first.
Ordinarily the question whether to accept or reject a
forfeiture would not warrant consideration by the entire
court. But a decision that threatens to derail a very im-
portant case, and on unsound grounds, does warrant
such consideration. A narrow ruling, enforcing the ap-
pellants’ forfeiture, would prudently defer resolution of
the larger issues to a case in which they were inescapable
and in which the court would not be rushed in con-
sidering them because a trial clock was ticking.
I have thus far treated the substantive question—whether
the district court should be affirmed or reversed—as one
12 No. 10-2359
of trial management. But the appellants’ entire argument
is that they have a constitutional right to the jurors’ names
before verdict, and they have support for that view in
the majority opinion in United States v. Wecht, 537 F.3d
222 (3d Cir. 2008). But there was a powerful dissent in
Wecht which points out (id. at 254-55) that other circuits
have suggested that limiting the public disclosure of
jurors’ identities during trial is an acceptable alternative
to conducting the voir dire—to which the media has a
presumptive right of access under Press-Enterprise Co. v.
Superior Court of California, 464 U.S. 501 (1984)—in secret.
See, e.g., ABC, Inc. v. Stewart, 360 F.3d 90, 104-05 (2d Cir.
2004); United States v. Brown, 250 F.3d 907, 917 (5th Cir.
2001); United States v. Wong, 40 F.3d 1347, 1376-77 (2d Cir.
1994). These cases seem right. (The panel has declined to
address the constitutional issue.) Judge Zagel did not
conduct the voir dire in secret, as did the trial judge in
the Presley case, or conceal the jurors’ names from the
parties and their lawyers.
The majority opinion in Wecht oddly emphasizes the
role of public disclosure of jurors’ identities in
preventing “corruption and bias” in a trial, and states
that “corruption and bias in a jury should be rooted out
before a defendant has to run the gauntlet of trial.” 537
F.3d at 239. The emphasis is odd because it falls on a
Sixth Amendment argument, grounded in the defen-
dant’s interests, and the Sixth Amendment was invoked
neither in Wecht nor in the present case. And although
some psychologists have speculated that jury anonymity
increases the probability of conviction, see, e.g., D. Lynn
Hazelwood & John C. Brigham, “The Effects of Juror
No. 10-2359 13
Anonymity on Jury Verdicts,” 22 Law & Human Behavior
695, 695-700 (1998), they are talking about cases in
which the names of the jurors are never revealed to the
public or the parties, which is not our case. Hazelwood
and Brigham’s study finds a higher rate of conviction
only when evidence against the defendant is strong,
which suggests that anonymity may actually improve
jury decisionmaking by removing impediments to ren-
dering a correct guilty verdict. They find no evidence
that anonymous jurors feel less accountable than ones
whose names are publicly disclosed. And while some
critics of anonymity worry that it impairs jurors’ sense of
personal responsibility for the outcome and causes jurors
to infer that the defendant is guilty, see, e.g., Ephraim
Margolin & Gerald F. Uelman, “The Anonymous Jury,”
Criminal Justice, Fall 1994, pp. 14, 16, 61, again these
critics are referring to jurors whose names are never
revealed. More to the point, the defendants in this case
have not objected to Judge Zagel’s order; and in the case
against Conrad Black (see below) the defendant wanted
the jurors’ identities concealed during the trial.
The interest of the public, as distinct from the interest of
the litigants, in learning jurors’ identities before the end of
a trial is slight in comparison to the jurors’ interest in
their privacy during a protracted high-profile trial. Jurors
are entitled to be treated with respectful regard for their
privacy and dignity, rather than as media prey. Anderson
v. Griffin, 397 F.3d 515, 519 (7th Cir. 2005); Tyus v. Urban
Search Management, 102 F.3d 256, 262 (7th Cir. 1996); In re
Globe Newspaper Co., 920 F.2d 88, 95 (1st Cir. 1990); cf. Press-
Enterprise Co. v. Superior Court of California, supra, 464 U.S.
14 No. 10-2359
at 511-12. Most people dread jury duty—partly because
of privacy concerns. See Kenneth J. Melilli, “Disclosure of
Juror Identities to the Press: Who Will Speak for the
Jurors?,” 8 Cardozo Pub. L., Policy & Ethics J. 1 (2009); David
Weinstein, “Protecting a Juror’s Right to Privacy: Con-
stitutional Constraints and Policy Options,” 70 Temple L.
Rev. 1, 2-3 (1997); Nancy J. King, “Nameless Justice: The
Case for the Routine Use of Anonymous Juries in
Criminal Trials,” 49 Vand. L. Rev. 123, 129 (1996). A degree
of anonymity safeguards jurors from intimidation during
trial, promotes vigorous debate in the jury room, allows
jurors to focus on the facts rather than on how the public
might receive their verdict, reduces jurors’ anxiety (which
may improve jury deliberations), and makes people less
reluctant to serve on juries. See, e.g., id. at 129; Kenneth B.
Nunn, “When Juries Meet the Press: Rethinking the
Jury’s Representative Function in Highly Publicized
Cases,” 22 Hastings Const’l L.Q. 405, 429-34 (1995); Abra-
ham S. Goldstein, “Jury Secrecy and the Media: The
Problem of Postverdict Interviews,” 1993 U. Ill. L. Rev. 295.
These studies focus on full juror anonymity, but their
arguments apply, albeit with lesser force, to the issue of
partial anonymity involved in this case.
“In a case like this that has garnered intense national
and international media attention, releasing juror names
during the pendency of trial threatens the integrity of the
jurors’ ability to absorb the evidence and later to render
a verdict based only on that evidence. This is the case
because disclosure increases the risk of third-party con-
tact by the press or by non-parties who are monitoring
these proceedings through the vast media attention this
No. 10-2359 15
case has gathered.” United States v. Black, 483 F. Supp. 2d
618, 628 (N.D. Ill. 2007); see also United States v. Vario,
943 F.2d 236, 240 (2d Cir. 1991); United States v. Doherty, 675
F. Supp. 719, 725 n. 7 (D. Mass. 1987); cf. Sheppard v.
Maxwell, 384 U.S. 333, 342, 353 (1966). “Not all celebrated
trials merit an anonymous jury, but ‘[t]he prospect of
publicity militates in favor of jury anonymity to prevent
exposure of the jurors to intimidation or harassment.’ ”
United States v. Branch, 91 F.3d 699, 724 (5th Cir. 1996),
quoting United States v. Wong, supra, 40 F.3d at 1377.
The approach that Judge Zagel’s colleague Judge St. Eve
took in the Black opinion from which I have just quoted
was sensible, and the panel’s amended opinion endorses
it—or at least purports to. (The Black opinion had been
cited in the panel’s original opinion, but noncommittally.)
Her ruling, protecting the jurors’ identities until verdict,
was made without an evidentiary hearing. It was based
on the high-profile nature, of which she could take
judicial notice, of the prosecution of Conrad Black. The
prosecution of Rod Blagojevich is higher profile—anyone
who doubts that has only to do a Google search under
“Blagojevich.”
Judge St. Eve’s approach is a model of how to deal with
the publicity sought by the media in a high-profile case,
though she based her ruling not on the kind of evidence
that the original panel opinion would have required
Judge Zagel to obtain but on her gut sense of what
was likely to happen if the jurors’ names were released
during the trial. She said that “to disclose the jurors’
names in a high-profile trial such as this would create
16 No. 10-2359
the unnecessary risk that, during the course of the trial,
jurors will be subjected to improper and presumptively
prejudicial contact.” 483 F. Supp. 2d at 630. She noted
the “intense” media interest in the case, as well as in the
blogosphere. Id. at 621. The media and blog interest in
the Blagojevich trial is greater than it was in the Black
trial. Rod Blagojevich is a better known and more colorful
figure than Conrad Black, and online reporting has ex-
panded rapidly in the last three years. “The Official
Guide to Blagojevich Blogs,” http://legalinsurrection.
b logspot.com /2008/12/official-guide-to-bla goje vic h-
blogs.html (visited July 13, 2010), lists six “Pure Blago
Blogs,” two “Blago Blog Aggregators,” twelve “Illinois
Blogs” that have extensive coverage of Blagojevich’s
travails, and twenty-three other blogs that provide occa-
sional coverage of Blagojevich. The blogs do not discuss
only Blagojevich’s criminal trial, but that is the focus
of their current postings.
Judge St. Eve predicted that releasing juror names
during the trial of Conrad Black would impair the jurors’
ability to render a verdict based only on the evidence,
because it would “increase[] the risk of third-party contact
by the press or by non-parties.” 483 F. Supp. 2d at 628.
Likewise Judge Zagel said in denying the media’s mo-
tion in the present case that it is a unique case involving
“enormous public attention, an enormous expression of
views.” He observed that there had already been “extra-
ordinary attention paid to this case.” He had received
unsolicited emails and letters regarding the trial. He noted
the risk that people might attempt to influence the jurors
at their homes. And, he added, “these are all problems
No. 10-2359 17
that we’ve dealt with before.” He considered an alterna-
tive to concealing the jurors’ identities—instructing the
jurors not to read emails—but rejected it because it
would “impose burdens on jurors that are unfair.”
In distinguishing between Judge St. Eve’s handling of
the juror privacy issue in Black’s case and Judge Zagel’s
handling of the same issue in the Blagojevich case, the
panel is splitting hairs. Judge St. Eve invited the lawyers
to submit briefs, and they did, but they briefed the legal
issue—the standard for determining whether to conceal
the jurors’ identity until the end of the trial—and it is
the focus of her opinion. The opinion does not refer to
submissions by the parties, let alone to factual submis-
sions. There were none, except some excerpts from
media coverage of the case and a letter to Judge Pall-
meyer, the judge presiding at the criminal trial of
Blogojevich’s predecessor as governor, George Ryan,
introduced to rebut Black’s claim that the press had been
instructed in Ryan’s case not to reveal the jurors’ names.
The only facts referred to in Judge St. Eve’s opinion
concern the publicity attending the prosecution, which
were matters of public record and common knowledge
rather than of “evidence,” and her receipt of expressions
of concern from members of the venire about publicity.
(The amended panel opinion suggests that Judge Zagel, if
he wants to refer to communications with him, must
put them on the record. Judge St. Eve had not done
so.) Judge Zagel actually had a bit of trial-type evidence
before him (Judge St. Eve did not)—an affidavit from a
Chicago Tribune reporter listing the high-profile trials in
the Northern District of Illinois in which jurors’ names
18 No. 10-2359
had been made public at the outset of the trial. So the
media have submitted evidence, that evidence was
before Judge Zagel when he ruled, and the media do not
argue that they were prevented from submitting more
evidence. Doubtless they submitted no additional evidence
because they believe—it is the only ground of their
appeal—that the First Amendment entitles them to the
jurors’ names unless threats are made against the jurors.
The sources that Judge St. Eve cited in support of her
concern that the media and the blogs might invade the
jurors’ privacy and by doing so disrupt the trial were all
published materials rather than trial-type evidence.
And from similar sources we know and Judge Zagel
knows that there is much more publicity attending the
Blagojevich prosecution and therefore greater danger if
the jurors’ names are revealed before the trial ends.
After Black the prosecution of Blagojevich presented an
a fortiori case for protecting the juries’ identities until
verdict and so Judge Zagel could just have said “I agree
with Judge St. Eve. Jurors’ names should be withheld in
a high-profile case. This case has an even higher profile
than Black’s.” (He did say he agreed with her handling
of the Black case; the appellants in the present case take
strenuous issue with Black.) If there is a right to public
knowledge of jurors’ identities before the end of trial, all
concede that it is a qualified right; and in light of the
Supreme Court’s reservation in Presley, its procedural
contours are unsettled. All Presley requires is that the
trial judge identify “the particular interest, and the threat
to that interest,” that justify concealing material informa-
tion from the public. 130 S. Ct. at 725. That requirement
No. 10-2359 19
was satisfied in this case, as it had been in Black—in
both cases with notable informality so far as compiling
evidence was concerned, and without a hearing.
The only difference is that Judge Zagel decided to
protect the jurors’ privacy before he heard from the
media. If that was an error, it was harmless, as this case
is an even stronger one than Black for juror privacy. But
it was not an error, because it was a tentative ruling and
the media had an opportunity to ask the judge to recon-
sider it, and they took the opportunity. That places
Judge Zagel’s decision on a more solid foundation than
Judge St. Eve’s because the present case has a much
higher public profile than the prosecution of Conrad
Black, a Canadian businessman.
If there was an error by Judge Zagel (there was not), not
only was it harmless; it was forfeited, because the appel-
lants have not asked for a hearing. Their motion to inter-
vene did not ask for one, nor their briefs in this court. In
the district court they asked for the jurors’ names and in
this court they ask that Judge Zagel be ordered to give
them the names. Having waited to move to intervene
until two days before the trial was scheduled to begin,
they had to realize that it was too late for an evidentiary
hearing. Knowing from the precedent of the Black trial
that the jurors’ names might be withheld from the
public until the verdict was rendered, and warned by
remarks made by Judge Zagel himself back in June of
last year that he might do the same in this case, the media
would have had their motion to intervene ready to file
in time for the holding of a pretrial hearing had they
20 No. 10-2359
wanted a hearing. They didn’t want one, as further
shown by the statement in their opening brief in this
court that “there is no justification that could have been
made for empanelling an anonymous jury in this case”
(emphasis added). They argue that only threats against
jurors can justify concealing their names. Their decision
not to ask for a hearing is the second forfeiture we
should enforce.
So, to quote from the new paragraph of the amended
opinion, there was “an opportunity for the parties (in-
cluding the intervenors) to make their views known in
detail, followed by a considered decision that includes
an explanation why alternatives to delayed release of
the jurors’ names would be unsatisfactory.”
The informality of Judge St. Eve’s proceeding in the
Black case was doubtless related in her mind to her
having ruled that there is no presumptive right of public
access to jurors’ names during the trial. 483 F. Supp. 2d at
625. That put the burden of producing facts on the
media, and they produced none. She noted that the
secrecy of jury deliberations is sacrosanct, and that it is
anomalous to turn jurors into public figures. Id.; cf. United
States v. Doherty, supra, 675 F. Supp. at 725 n. 7; Gannett Co.
v. State, 571 A.2d 735, 750-51 (Del. 1989). Indeed much
that goes on in a criminal trial as in a civil trial is closed
to the public. The English courts, in contrast, have, until
quite recently when rising caseloads forced the courts to
change their practice, followed a strict rule of “orality.”
Everything that judges did had to be done in public—so no
judicial deliberations in appeals, for example, or even
No. 10-2359 21
judges’ reading pleadings and briefs other than during
trial or appeal (and no law clerks or secretaries). Robert J.
Martineau, Appellate Justice in England and the United
States: A Comparative Analysis 101-03 (1990). That is not
our tradition.
The panel opinion overrules Judge St. Eve’s sensible
ruling rejecting any presumption in favor of disclosure
of jurors’ names before verdict. It does so on the basis not
of the First Amendment but of a purported “common-
law right of access by the public to information that
affects the resolution of federal suits,” a right said to be
based on the “common-law tradition of open litigation,”
and of the Jury Selection and Service Act, 28 U.S.C. §§ 1861et seq. These parts of the opinion are unaltered by the
amendment. They are unsound.
Whatever the situation in England, there is no general
federal common-law right of public access to informa-
tion relating to federal litigation. Such a right would create
a presumption of access to jury deliberations, appellate
judicial deliberations, depositions whether or not used
at trial, terms of settlement, grand jury proceedings,
judges’ discussions with their law clerks, and so on. No
one thinks that the media can demand access to any of
these phases of the litigation process, or that if they do
the judge must hold a hearing to consider their demand;
why should the media have a presumptive right to the
names of the jurors before a trial ends?
The panel cites Nixon v. Warner Communications, Inc., 435
U.S. 589, 602 (1978), which created a “presumption . . . in
favor of public access to judicial records” to enable the
public to “monitor the functioning of our courts, thereby
22 No. 10-2359
insuring quality, honesty and respect for our legal system.”
In re Continental Illinois Securities Litigation, 732 F.2d 1302,
1308 (7th Cir. 1984). But jurors’ names—as distinct from
evidence, United States v. Criden, 648 F.2d 814, 822 (3d Cir.
1981), materials attached to dispositive motions, Republic
of Philippines v. Westinghouse Electric Corp., 949 F.2d 653,
660 (3d Cir. 1991), and judicial rulings—are not judicial
records. “The courts have not extended [the common-law
right of access] beyond materials on which a court relies in
determining the litigants’ substantive rights.” Anderson v.
Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986); see also United
States v. Amodeo, 44 F.3d 141, 145-46 (2d Cir. 1995). (And
thus, for example, the right of access does not extend to
discovery materials. Anderson v. Cryovac, Inc., supra, 805
F.2d at 13.) “[J]uror names and addresses are collateral
information kept by the court for its necessary administra-
tive purposes, rather than being court proceedings or
records of such proceedings.” In re Globe Newspaper Co.,
supra, 920 F.2d at 94; contra, In re Baltimore Sun Co., 841
F.2d 74, 75 (4th Cir. 1988). Anyway the jurors’ names are to
be protected only until verdict.
If there is a federal common-law right of access to
information other than “materials on which a court
relies in determining the litigants’ substantive rights,”
Anderson v. Cryovac, Inc., supra, 805 F.2d at 13, then,
being a common-law right rather than a constitutional
right, it can be supplanted by legislation. E.g., United States
v. Gonzales, 150 F.3d 1246, 1262-63 (10th Cir. 1998). And it
has been. The panel has turned the Jury Selection and
Service Act on its head. The Act requires each district
court to adopt a plan for jury selection, and section
No. 10-2359 23
1863(b)(7) provides that the plan must “fix the time
when the names drawn from the qualified jury wheel
shall be disclosed to parties and to the public.” The im-
plication is that the plan can withhold disclosure of
jurors’ names until the trial ends, or later for that mat-
ter. That is what Judge St. Eve concluded in the opin-
ion that the panel otherwise admires. 483 F. Supp. 2d at
626. The conclusion is supported by the Act’s legislative
history. The Act “permits the present diversity of practice
to continue. Some district courts keep juror names confi-
dential for fear of jury tampering. Other district courts
routinely publicize the names.” See H.R. Rep. 1076, 90th
Cong., 2d Sess. 11 (1968). The Act was passed in 1968,
and the passage I just quoted from the House Report
shows there was no common-law right of access to
jurors’ names then; nor could one evolve after the Act
was in place, occupying the field.
The jury selection and service plan for the U.S. District
Court for the Northern District of Illinois, which the
appeal does not challenge, provides that “any judge of
this Court may order that the names of jurors involved
in a trial presided over by that judge remain confidential
if the interests of justice so require.” That is what
Judge Zagel found. The plan creates no presumption of
public access and does not require the judge to hold a
hearing to make this determination. “[T]he decision as
to access is one best left to the sound discretion of the
trial court.” Nixon v. Warner Communications, Inc., supra,
435 U.S. at 599. There was no abuse of discretion by
Judge Zagel, just as there was none by Judge St. Eve in
the hearing-less Black case.
24 No. 10-2359
The original panel opinion had held explicitly that
federal common law and the jury selection and service
statute create a presumptive right of public access to
jurors’ names before verdict. Nothing in that part of the
opinion was changed. Yet the amended opinion casts
doubt on whether the panel adheres to its original
holding, for the other new paragraph of the amended
opinion begins: “Instead of constructing a framework
for hearings, findings, and rules of decision, we think it
best to wait until a hearing has been held” (emphasis
added). The original opinion, in a part that survived
into the amended one, establishes a rule of decision: a
presumption of access based on federal common law and
the jury statute. Notice also how in this passage the
requirement of an “opportunity” for a hearing in the
preceding new paragraph of the amended opinion
molts into a requirement for a hearing.
One last point: the panel has ducked the constitutional
issue because it thinks it has alternative, nonconstitu-
tional grounds for a presumption that the media are
entitled to the names of jurors in advance of verdict. If
those grounds fail, as I think they do, a fortiori there
has been no showing of a violation of the media’s con-
stitutional rights.
We should vacate the panel opinions and affirm the
district court.
7-23-10