United States v. Wecht , 537 F.3d 222 ( 2008 )

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 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 over the Media-Interve-nors’ 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., 387 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (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) the order must “be effectively unreviewable on appeal from a final judgment.” See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (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, 114 S.Ct. 1992, 128 L.Ed.2d 842 (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 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. Roller, 472 U.S. 424, 430-31, 105 S.Ct. 2757, 86 L.Ed.2d 340 (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, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989); Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 79 L.Ed.2d 288 (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, 98 S.Ct. 1547, 56 L.Ed.2d 18 (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 law1 ”); 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, 104 S.Ct. 1051.

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 & Lyb-rand] requirements, it is not an appeal-able collateral order.”).

1.

The first prong of the Coopers & Lyb-rand test requires that the order at issue “conclusively determine the disputed question.” See Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. 2454. 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, 69 S.Ct. 1221. The District Court’s December 21 Order sets forth what it considered to be the 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 “[bjeeause 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

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 230 n. 14; see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 11-13 & n. 14, 103 S.Ct. 927, 74 L.Ed.2d 765 (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 230 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 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 the final word on jury selection. If anything, the record indicates that had the Media-Inter-venors 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 230 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 satisfy the first prong of the Coopers & Lybrand test at this time. 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 229. 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., 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, 98 S.Ct. 1547 (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, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (quoting Cohen, 337 U.S. at 546, 69 S.Ct. 1221) (emphasis added); see also Flanagan, 465 U.S. at 265, 104 S.Ct. 1051 (“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 jurors⁴⁸ or whether that right would be “seriously undermined.”⁴⁹ See Maj. Op., supra, at 229. 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, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I ”); Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 598-99, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 559-61, 100 S.Ct. 2814, 65 L.Ed.2d 973 (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, 123 S.Ct. 2174, 156 L.Ed.2d 197 (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, 123 S.Ct. 2174 (“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. 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, 123 S.Ct. 2174. 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, 104 S.Ct. 1051. 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, 104 S.Ct. 1051. 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 jeopardy grounds, and an order refusing to dismiss an indictment for violation of the Speech and Debate Clause. See id. at 266, 104 S.Ct. 1051; see also Maj. Op., supra, at 228.

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-Inter-venors is completely and irretrievably lost once the trial commences.⁵¹ Accordingly, the District Court’s order is not effectively unreviewable post-trial.⁵²

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-Inter-venors’ 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 claims⁵⁴ are only 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 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, 100 S.Ct. 2814, 65 L.Ed.2d 973 (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 233 (citing Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. 819). 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.

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, 106 S.Ct. 2735, 92 L.Ed.2d 1 (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, 106 S.Ct. 2735 (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, 104 S.Ct. 819. 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 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 question⁵⁶ 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 235-36. For this reason, according to the Majority, the Media-In-tervenors 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 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, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966),⁵⁷ Congress passed 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 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 236-37.

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.Pa. July 13, 2006), 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 Grand 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 Selection and Service Act of 1968, at ¶ I, http://www.njd.uscourts.gov/jury/ JURY-PLAN-FINAL-l-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, re-printed, 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 “[djirection 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 SI 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 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.

Hi

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, 104 S.Ct. 819 (“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 274 (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 “[ajnonymity 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, 104 S.Ct. 819 (“When limited closure 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.”); 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 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, 86 S.Ct. 1507 (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 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 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, 106 S.Ct. 2735. 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 238. 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 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, 99 S.Ct. 2898, 61 L.Ed.2d 608 (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, 773 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:

[Pjromotion of informed discussion of governmental affairs by providing the public with 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 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 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 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-em-panelment 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, 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 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 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 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 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.

£

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 737. Gannett, the publisher of a state-wide daily newspaper, intervened and petitioned the trial court to release the names of 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 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.

S.

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 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.

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 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 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 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, 104 S.Ct. 819 (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, 104 S.Ct. 819. 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 jurors, as well as their families, Mends, 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, ‘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, 104 S.Ct. 819; see also id. at 519, 104 S.Ct. 819 (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-Interve-nors 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 240. 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 in such a high-profile criminal case⁷⁴ is a compelling reason for limiting the amount of information to which the media has access before and during the trial.⁷⁵

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. Scavfo, 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 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 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 An-tar, 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

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 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-Inter-venors, the Majority’s conclusion that the District Court’s actions were not narrowly tailored to protect a 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 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 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

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, 91 S.Ct. 547, 27 L.Ed.2d 543 (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 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 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, 86 S.Ct. 1507. 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 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, 103 S.Ct. 3524, 77 L.Ed.2d 1284 (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.

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 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.

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, 69 S.Ct. 1221, 93 L.Ed. 1528 (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.... ”).

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.

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.

44 . At the very least, the District Court should have been given the opportunity to make further modifications in light of the Media-In-tervenors' arguments. A better method for challenging these procedures prior to empan-elment 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 why such an application to the District Court would have been impracticable. See Fed. R.App. P. 8(a).

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.

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 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-Inter-venors 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 230. 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 230 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.

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 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 229. 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.

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, 104 S.Ct. 1051 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (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).

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 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 defeated]” were they not enforced pretrial, 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, 104 S.Ct. 1051; MacDonald, 435 U.S. at 860, 98 S.Ct. 1547; Abney, 431 U.S. at 658, 97 S.Ct. 2034. 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.

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 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.

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 235. 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 235-36.

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, 86 S.Ct. 1507. 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, 86 S.Ct. 1507. 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, 86 S.Ct. 1507. 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 jurors.” Id. at 342, 86 S.Ct. 1507. The Court also noted that pictures of the prospective jurors appeared in the newspaper during the course of jury selection. See id. at 343, 86 S.Ct. 1507.

58 . The chairman of the subcommittee that studied these issues was Third Circuit Chief Judge Collins J. Seitz.

59 . 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).

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.

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 analy-ses in Press-Enterprise I and In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir.1988). Although these cases begin their examination of the histoiy 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 became much more pervasive.

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.

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 238. 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.

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 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 pretrial 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.

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, 104 S.Ct. 819; 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 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.

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.

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 234 (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, 106 S.Ct. 2735; 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 mischaracter-ization of the burden. See Maj. Op., supra, at 236 n. 27 ("CT]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.

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.'').

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 /, 464 U.S. at 509, 104 S.Ct. 819. 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(0.

72 .The Majority casually casts aside the District Court’s concern that the Media-Interve-nors 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.

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.

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.... [Njumerous 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, 86 S.Ct. 1507.

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 ("[TJhe 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 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 242 ("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 juiy 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 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.

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, 104 S.Ct. 819 (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 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, 31 S.Ct. 2, 54 L.Ed. 1021 (1910)).

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 238 (“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-

81 . As I noted in Part1 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.

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 benefited from more deliberation and either additional briefing at the direction of this Court or oral argument on these questions.

83 . See, e.g., Gall v. United States, - U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (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. -, 128 S.Ct. 2559, 171 L.Ed.2d 399 (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.

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 239. 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.