United States v. Brown

_______________________
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-30953
cons/w 00-31042 and
00-31179
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HARVEY BROWN, also known as Jim Brown; ALFRED FOSTER
SANDERS, III, also known as Foxy Sanders; EDWIN W. EDWARDS,
also known as The Governor; ROBERT A. BOURGEOIS, also known
as Bob Bourgeois, DAVID JUDD DISIERE, RONALD R. WEEMS, also
known as Ron Weems,
Defendants-Appellees,
versus
THE TIMES PICAYUNE PUBLISHING CORPORATION; ASSOCIATED PRESS;
CAPITAL CITY PRESS; HEARST-ARGYLE TELEVISION, INC.; THE
LOUISIANA PRESS ASSOCIATION,
Appellants.
____________________
00-31284
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HARVEY BROWN, Etc; ET AL,
Defendants,
JAMES HARVEY BROWN, also known as Jim Brown; EDWIN
WASHINGTON EDWARDS, also known as The Governor; RONALD R.
WEEMS, also known as Ron Weems,
Defendants-Appellees,
versus
TIMES PICAYUNE PUBLISHING CORPORATION; CAPITAL CITY PRESS,
the Advocate, Saturday and Sunday Advocate, the “News Media”,
Appellants.
_________________________
Appeals from the United States District Court
for the Middle District of Louisiana
_________________________
_______________
00-31069
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In Re: THE TIMES-PICAYUNE PUBLISHING CORPORATION; THE
ASSOCIATED PRESS; CAPITAL CITY PRESS, INC., (The Advocate,
Saturday and Sunday Advocate); HEARST-ARGYLE TELEVISION
INC. (WDSU-TV); THE LOUISIANA PRESS ASSOCIATION,
Petitioners,
_______________
2
00-31201
_______________
In Re: HEARST-ARGYLE TELEVISION INC. (WDSU-TV);
CAPITAL CITY PRESS (The Advocate, Saturday and
Sunday Advocate); THE TIMES-PICAYUNE PUBLISHING
CORPORATION,
Petitioners.
_________________________
Petitions for Writ of Mandamus
to the United States District Court
for the Middle District of Louisiana
_________________________
May 1, 2001
Before JOLLY, JONES and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
By appeals or, in the alternative, petitions for a writ
of mandamus, various “News Media”,1 challenge measures used by the
court to protect juror anonymity in a much-publicized criminal
trial. Those measures included certain orders implementing an
anonymous jury order, and the district court’s refusal to grant the
News Media’s motion for post-verdict access to juror information.
Finding that a portion of the district court’s orders supplementing
its anonymous jury order was an unconstitutional prior restraint,
we reverse in part. We reject, however, the News Media’s requests
1
The “News Media” include Times-Picayune Publishing Corporation, the
Associated Press, Capital City Press, Inc., Gannett River States Publishing,
Inc., Hearst-Argyle Television, Inc. (WDSU-TV), WGNO Inc., WWL-TV Inc., Emmis
Television Broadcasting L.P. (WVUE-TV) and the Louisiana Press Association.
3
that the district court be ordered to release the jurors’
identifying information and juror questionnaires.
I. BACKGROUND
Former Louisiana Governor Edwin Edwards and several
others, including state Insurance Commissioner Jim Brown, were
indicted for various federal crimes allegedly committed in
connection with a “‘sham settlement’ that derailed a $27 million
lawsuit threatened by the state against David Disiere, president of
Cascade Insurance Co., a failed automobile insurance carrier.”
United States v. Brown, 218 F.3d 415, 418 (5th Cir. 2000). The
indictment included numerous counts of conspiracy, mail and wire
fraud, insurance fraud, making false statements, and witness
tampering. The trial at issue in this appeal was the second of
three federal prosecutions involving former Governor Edwards. In
the first trial, Edwards and several other defendants were
convicted in June, 2000, of charges based on bribery to obtain a
riverboat gambling license. The third trial, also involving
bribery allegations, was held in March, 2001. The jury convicted
Cecil Brown on seven out of nine counts. Edwards was an unindicted
co-conspirator in that case and appeared as a witness for Brown.2
Trial on this second indictment began on September 18,
2000. On October 11, Edwards and Shreveport lawyer Ronald Weems
2
A fourth related trial for federal tax evasion by former Edwards aide
Andrew Martin will commence in July, 2001.
4
were acquitted of all charges. Brown was acquitted on most charges
but convicted on seven counts of making false statements to an FBI
agent. The district court threw out two of these counts.
A. Pretrial Proceedings
On March 31, 2000, the United States filed a motion for
the impanelment of an anonymous jury. The defendants opposed the
motion. On July 13, the district court continued the trial until
September 18, 2000, and it granted the Government’s motion for an
anonymous jury.
The News Media, as intervenors, requested on July 26 that
the district court reconsider its approval of an anonymous jury.
In the alternative, the News Media asked for access to the names,
addresses, and places of employment of the jurors upon entry of the
verdict, to the extent that the information might be withheld
during trial.
The district court issued reasons for granting the
anonymous jury motion on August 9. Stating that anonymity has long
been an important element of the jury system, the court reasoned
that its order “merely increased the degree of anonymity by
withholding the jurors’ names, addresses, and places of
employment.” The court found that three of five non-exclusive
5
factors3 that the Fifth Circuit has stated may justify impaneling
an anonymous jury were present in this case. First, there have
been charges that the defendants have attempted to interfere with
the judicial process or witnesses through witness tampering,
attempting to bribe a judge, attempting to illegally terminate a
federal investigation and influencing a court-appointed special
master. Two of the defendants have pled guilty to witness
tampering, another to misprision of a felony. In addition, Edwards
was convicted in the first trial of interfering with Louisiana’s
judicial and administrative processes for licensing riverboat
casinos.
Second, the district court stated that an anonymous jury
is appropriate when defendants face a lengthy incarceration and
substantial monetary penalties, as they did here. Third, this case
has received extensive publicity, enhancing the “possibility that
jurors’ names would become public and expose them to intimidation
and harassment.” Krout, 66 F.3d at 1427. In addition, in the
previous Edwards trial, “despite extensive and expensive
precautions by the United States Marshals Service to protect the
3
As discussed in United States v. Krout, the five factors are: “(1)
the defendants’ involvement in organized crime; (2) the defendants’ participation
in a group with the capacity to harm jurors; (3) the defendants’ past attempts
to interfere with the judicial process or witnesses; (4) the potential that, if
convicted, the defendants will suffer a lengthy incarceration and substantial
monetary penalties; and, (5) extensive publicity that could enhance the
possibility that jurors’ names would become public and expose them to
intimidation and harassment.” 66 F.3d 1420, 1427 (5th Cir. 1995).
6
anonymity of the jury, certain members of the media aggressively
followed, identified, and contacted jurors in violation of the
anonymous jury order. . . .” Therefore, the district court
concluded, “the media’s intense interest in gaining access to the
jurors’ names, addresses, and place of employment strongly counsels
the Court to protect the panel from foreseeable harassment by the
media and others.” The district court continued: “Any attempts by
the media or others to interfere with this order will not be
tolerated.”
On August 10, the district court denied the Media’s
motions for reconsideration of the anonymous jury order and
deferred ruling on the media’s alternative motion for access to
jury information upon entry of verdict but stated that “[i]n the
meantime, the media is ordered not to attempt to circumvent this
Court’s ruling preserving the jury’s anonymity.”
The News Media promptly appealed, challenging: (1) the
district court’s August 9, 2000 Order to the extent it stated that
“any attempt by the media or others to interfere with this Order
will not be tolerated”; (2) the district court’s August 10, 2000
minute entry stating that “the media is ordered not to circumvent
this Court’s ruling preserving the jury’s anonymity”; and (3) the
district court’s minute entry of August 10, 2000 indefinitely
deferring the News Media’s request for post-verdict access to the
jurors’ names, addresses, places of employment and the juror
7
questionnaires.4 The News Media do not, however, challenge the
substantive merit of the anonymous jury order.
B. The Trial and Its Aftermath
Voir dire began on September 18, 2000. After the
district court closed portions of the jury voir dire, the News
Media sought a writ of mandamus ordering the district court to open
the voir dire proceedings to the public and the press and to
transcribe immediately and release any portion of voir dire held
behind closed doors. The district court entered its reasons for
closing the voir dire on September 19, 2000. On October 3, the
News Media filed a notice of appeal regarding the same matter.
On October 11, before the verdict was announced, the
district court told the jurors that it was not going to release
their identities unless they wished to waive or release themselves
from anonymity. The trial judge also informed the jurors that they
did not have to speak to anyone about the case and that, absent
court order, they could not be interviewed about the jury
deliberations, but that they could discuss their general reactions
to the trial. When asked by the district court whether they wished
to waive anonymity, none of the jurors indicated a desire to do so.
However, the judge stated that if any juror later sought to be
4
On September 5, the News Media filed a mandamus petition challenging
the same orders. This court consolidated the writ of mandamus with the
aforementioned appeals.
8
released from the confidentiality agreement, the court would put an
order in the record identifying the person.
The News Media immediately sought a post-verdict writ of
mandamus ordering the district court to release the names,
addresses and places of employment of the anonymous jurors and the
completed juror questionnaires that were sealed during the trial.
In the alternative, the News Media also filed a notice of appeal.
On October 16, the court granted a motion to unseal the
transcript of the closed voir dire.5 The district court denied the
News Media’s motion for access to juror questionnaires, however, on
the grounds that the questionnaires assured the jurors that all
information would remain confidential and that the court would not
breach this confidentiality agreement. The court offered to
release the questionnaires of consenting jurors, but it again
refused to release jurors’ names, addresses, and places of
employment (without their consent). Further, the court repeated
that if any juror requested to be released from the confidentiality
agreement, the court would place an order in the record identifying
the juror. The News Media have appealed and sought mandamus to
reverse these orders.
5
The district court’s order granting the motion to unseal the
transcript of the closed voir dire renders moot the mandamus petition of
September 18, 2000.
9
The court went to extraordinary lengths to preserve the
integrity of the jury system and conduct a fair trial in the face
of relentless publicity, some of it generated by the parties
themselves. Eager media have entertained the citizens of Louisiana
and beyond with nonstop coverage of the current prosecutions of
Louisiana’s colorful ex-Governor. The court’s protective measures
in this trial included: (1) a gag order on all trial participants;6
(2) an anonymous, but not sequestered jury; (3) closure during
trial of the jury selection process; (4) the August 9 and 10 orders
that admonished against any attempt to circumvent or interfere with
the anonymous jury order; and (5) post-verdict orders that
(a) continue, until each individual juror requests otherwise, the
confidentiality of juror identity and questionnaires, and
(b) shroud the jury deliberations. These orders have not
noticeably interfered with vigorous press coverage, except to limit
inquiry into the background and makeup of the jury. Among all
these orders, the News Media appealed the (now-moot) closure of
jury selection, the non-circumvention orders and the post-verdict
juror identification orders.7 They argue in addition that the
6
The gag order on trial counsel, defendants and potential witnesses
in this second Edwards trial was upheld after an appeal by defendant Harvey Brown
in United States v. Brown, supra. The News Media appeared as amici in that
appeal.
7
Following oral argument, on October 6, 2000, this court dismissed
without prejudice, on grounds of prematurity, that portion of the News Media’s
appeal/mandamus petition challenging the indefinite deferral of their motion for
post-verdict access to juror information. The issue is again before us on appeal
10
cumulative effect of all the protective orders denied public access
to the trial. Each of the News Media’s issues deserves close
attention.
II. DISCUSSION
Because this case involves constitutional and other legal
questions, we review the district court’s orders de novo. See
American Civil Liberties Union of Mississippi, Inc. v. Mississippi,
911 F.2d 1066, 1069 (5th Cir. 1990). “Specific factual findings of
the district court on the issue are, of course, entitled to review
under the clearly erroneous standard.” Id.A. The District Court’s Orders that the Media Not Circumvent
Its Anonymous Jury Order8
after the court entered its post-verdict juror identification orders.
8
At the outset, we must consider whether the non-circumvention order
is moot and whether our jurisdiction is defeated. Two conditions must be
satisfied in such a case for jurisdiction to be valid and the order considered
not moot: “‘(1) the challenged action [must] in its duration [be] too short to
be fully litigated prior to its cessation or expiration, and (2) there [must be]
a reasonable expectation that the same complaining party would be subjected to
the same action again.’” Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377,
99 S.Ct. 2898, 2904 (1979)(quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96
S.Ct. 347, 349 (1975). Considering an order prohibiting the public and press
from a pretrial suppression hearing, the Supreme Court concluded in Gannett that
it had jurisdiction to review such a controversy and that the case was not moot.
Id. The Court stated that a pretrial hearing was too short in duration to permit
full review and that an order denying access to a transcript would nearly always
be lifted prior to the completion of appellate review. The Court also concluded
that it was reasonable that the petitioner, a newspaper publisher, would be
subject to similar closure orders in the future. Id. Likewise, in Nebraska
Press Assoc. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791 (1976), the Court reviewed
an order restraining the news media from publishing or broadcasting accounts of
confessions or admissions. The Court held that the controversy was “capable of
repetition” because the defendant’s conviction could be reversed and the trial
court could issue “another restrictive order to prevent a resurgence of
prejudicial publicity before [the defendant’s] retrial.” Id. at 546, 96 S.Ct.
at 2797. Because similar circumstances exist here, we likewise conclude that the
controversy is neither moot nor our jurisdiction defeated. This is a
11
This is the first time an appellate court has been asked
to consider how far a trial court may go, consistent with the First
Amendment, in enforcing an order on juror anonymity. The News
Media contend that the district court’s orders amounted to a prior
restraint, “freezing” their publication of information about the
jurors and juror conduct that might arise during trial. Nebraska
Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803
(1976). The government responds that since the court’s orders
intended no more than to prevent publication of information from
which the jurors could be identified, they fell within the court’s
broad discretion to manage the trial.
Between the parties’ positions lies an area of agreement:
the court could determine that maintaining jury anonymity was
“controversy . . . capable of repetition under circumstances in which each
repetition may evade review.” United States v. Chagra, 701 F.2d 354, 358 (5th
Cir. 1983).
In addition, our appellate jurisdiction lies under the collateral order
doctrine. “Congress has limited the jurisdiction of this Court to ‘final
decisions of the district courts.’” U.S. v. Brown, 218 F.3d 415, 420 (5th Cir.
2000). Although the district court’s orders are not final orders, the Supreme
Court has recognized a collateral order exception to this final order requirement
because “certain decisions of the district court are final in effect although
they do not dispose of the litigation.” Davis v. East Baton Rouge Parish Sch.
Bd., 78 F.3d 920, 925 (5th Cir. 1996). Such orders may be appealed “if they (1)
are conclusive, (2) resolve important questions that are separate from the
merits, and (3) are effectively unreviewable on appeal from the final judgment
in the underlying action.” Brown, 218 F.3d at 420. Courts have applied this
doctrine to appeals of orders affecting the media’s First Amendment rights. See,
e.g., United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir. 1977). The
challenge to the district court’s orders meet these criteria because: (1) the
orders were conclusive “with no further consideration . . . contemplated,”
Gurney, 558 F.2d at 1206; (2) they involve important questions unrelated to the
merits of the case; (3) and the issues would otherwise essentially be
unreviewable on appeal from the final judgement.
12
necessary to prevent extraneous harassment and intimidation of
jurors. It could enter an order preventing court personnel from
disclosing, or the media from eliciting official court records that
would identify the jurors. The News Media have conceded these
points by not appealing the anonymous jury order itself. We must
assume that that order, unusual as it is, was both fully supported
in the record and fully enforceable against parties within the
court’s control.9
The media assert, however, that the non-circumvention
orders threaten also to proscribe independent newsgathering, e.g.
any story not derived from confidential court records, that might
deal with jurors. While this is a self-justifying argument, to the
extent that the media never properly sought clarification of the
orders,10 it is not without force. The language of the court’s
orders, which restricts “interference” and “circumvention”, is
ambiguous. Alternatively, it may connote “not going around” either
the substance of the order, i.e. by destroying juror anonymity, or
9
Compare 28 U.S.C. § 1863(b)(7) (a jury plan “may . . . permit . . .
[the court] to keep these [jurors’] names confidential in any case where the
interests of justice so require.”).
10
We decline to consider self-serving correspondence that the media
sent the trial court in an effort to clarify the judge’s non-circumvention
orders. Neither such correspondence, nor the court’s alleged oral interpretation
of the order, is part of the record. The motion to supplement the record to
include this correspondence is denied.
13
the integrity of court procedures, i.e. by obtaining confidential
court data.
The latter interpretation poses no problem. While the
news media are entitled to receive, investigate and report on all
public proceedings involved in a trial, the right to gather news,
much like other first amendment rights, is not absolute. See In re
Express News Corp., 695 F.2d 807, 809 (5th Cir. 1982) (citing Zemel
v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281 (1965)). It does not
“guarantee journalists access to sources of information not
available to the public generally.” Id. (citing Branzburg v.
Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658 (1972)); see also
United States v. Gurney, 558 F.2d 1202, 1208 n.9 (5th Cir.
1977)(“‘When representatives of the communications media attend
trial they have no greater rights than other members of the
public.’”) (quoting Estes v. Texas, 381 U.S. 532, 584, 85 S.Ct.
1628, 1654 (1965) (Warren, C.J., concurring)). As this court has
held, a trial court may refuse to allow the media to inspect
documents not a matter of public record, including jurors’ names
and addresses; such orders are distinct from prior restraints.
Gurney, 558 F.2d at 1210. To the extent the orders warned the
media not to publish information illegally gleaned from
confidential court files, it was justified. See Florida Star v.
14
BJF, 491 U.S. 524, 534, 109 S.Ct. 2603, 2609 (1989).11 Similarly,
although the media generally have a right to publish information
that they obtain, “[n]either the First Amendment nor the Fourteenth
Amendment mandates a right of access to government information or
sources of information within the government’s control.” Houchins
v. KQED, Inc., 438 U.S. 1, 15, 98 S.Ct. 2588, 2597 (1978).
If the court intended the former connotation, however,
then it could be tricky to determine how much information revealed
in an independently gathered news article might compromise juror
anonymity. Nevertheless, a violation of the orders would subject
the press to sanctions. The orders thus plausibly constituted a
11
In Florida Star v. BJF, 491 U.S. 524, 109 S.Ct. 2603 (1989), the
Court held that imposing damages on a newspaper for publishing the name of a rape
victim violated the First Amendment. In so doing, however, the Court refused to
hold broadly that truthful publication may never be punished consistent with the
First Amendment. Id. at 532, 109 S.Ct. at 2609 (“Our cases have carefully
eschewed reaching this ultimate question, mindful that the future may bring
scenarios which prudence counsels our not resolving anticipatorily.”). Rather,
the government “retains ample means of safeguarding significant interests upon
which publication may impinge.” Id. at 533, 109 S.Ct. at 2609. This includes
protecting anonymity.
To the extent sensitive information rests in private hands,
the government may under some circumstances forbid its non-
consensual acquisition. . . . To the extent sensitive
information is in the government’s custody, it has even
greater power to forestall or mitigate the injury caused by
its release. The government may classify certain information,
establish and enforce procedures ensuring its redacted
release, and extend a damages remedy against the government or
its officials where the government’s mishandling of sensitive
information leads to its dissemination.
Florida Star, 491 U.S. at 534, 109 S.Ct. at 2609. In Florida Star, the
imposition of damages was unconstitutional in part because the government itself
made the information available to the media.
15
prior restraint because it gagged the press from reporting some
kinds of independently gathered stories pertinent to the trial.12
Prior restraints on publication by the press are
constitutionally disfavored in this nation nearly to the point of
extinction. To avoid redundancy in the case reports, we forbear
repeating the background and caselaw that compel this conclusion
under the First Amendment. See generally Nebraska Press Ass’n v.
Stuart, 427 U.S. 539, 96 S.Ct. 2791 (1976); Brown, supra. But
vital as it is to protect freedom of the press, especially in
reporting about the criminal justice system,13 the rights of the
press may collide with a criminal defendant’s equally significant
Sixth Amendment right to a fair trial. “In general, a prior
restraint (usually directed at the press) will be upheld only if
the government can establish that ‘the activity restrained poses
either a clear and present danger or a serious and imminent threat
to a protected competing interest.’” Brown, 218 F.3d at 424
(citing Levine v. U.S. Dist. Court, 764 F.2d 590, 595 (9th Cir.
1985) (citations omitted)). In Nebraska Press, the Supreme Court
examined a restraint against pretrial publication of certain
12
“A prior restraint . . . has an immediate and irreversible sanction.
If it can be said, that a threat of criminal or civil sanctions after publication
“chills” speech, prior restraint ‘freezes’ it at least for the time.” Nebraska
Press, 427 U.S. at 559, 96 S.Ct. at 2801.
13
See generally Sheppard v. Maxwell, 334 U.S. 333, 86 S.Ct. 1507(1966).
16
evidence inculpating the defendant. The state courts had intended
to stanch excessive publicity that might taint a small town’s jury
pool. The Court examined the evidence before the trial judge to
determine “(a) the nature and extent of pretrial news coverage; (b)
whether other measures would be likely to mitigate the effects of
unrestrained pretrial publicity; and (c) how effectively a
restraining order would operate to prevent threatened danger.” 427
U.S. at 562, 96 S.Ct. at 2804. The district court’s non-
circumvention orders in this case must be examined by the Nebraska
Press criteria.
In Nebraska Press, the court’s gag order was first
examined in light of the goal of minimizing prejudicial pretrial
publicity. In this Edwards prosecution, by contrast, the court was
trying to prevent harassment and intimidation of venire members and
jurors by the press and the defendants. Evidence supporting the
court’s fears of an imminent and serious threat from both these
sources was abundant. Two of the defendants had been charged in
the indictment and pled guilty to witness tampering and another to
misprision of a felony. This particular prosecution involved
charges of interfering with state judicial processes through
attempted bribery of a judge, attempting illegally to terminate a
federal investigation, and influencing a court-appointed special
master. In the first Edwards prosecution, allegations that the
former Governor and his son bugged the office of an FBI agent had
17
been severed for separate trial. Edwards was convicted in the
first trial of interfering with Louisiana’s judicial and
administrative processes for licensing riverboat casinos. During
the first trial, the media had identified and pursued jurors and
attempted to interview them despite an anonymity order. Repeated
allegations of juror misconduct were raised in the first trial,
necessitating inquiries by the court concerning possible outside
influences on those jurors. In this prosecution, the media
zealously sought to access sealed information. Finally, when
Governor Edwards was tried on criminal charges several years ago,
there was evidence of possible attempts to influence jurors through
their relatives. The district court could well conclude that the
integrity and independence of the jury process were at risk.
Protecting against these unique threats to the integrity
of the jury process posed a significant challenge in addition to
and different from the relatively well-charted field of excessive
pretrial publicity. To a greater extent than in Nebraska Press,
then, the trial court could justifiably find a clear and present
danger to the integrity of the jury process if juror anonymity were
compromised.
Because the fair trial threat in this case originates
from different sources from that in Nebraska Press, the evaluation
of less restrictive means, the second of the Supreme Court’s
criteria, must also differ. In Nebraska Press, the Court
18
enumerated several alternatives that would minimize the effect of
excessive publicity short of gag orders on the press. Those
alternatives included imposing gag orders on trial participants,
granting a change of venue, delaying the trial, or sequestering
jurors. In Brown, this court has already upheld a gag order on the
trial participants in the second Edwards trial, while emphasizing
the determined efforts of defendants and all counsel to circumvent
it.
For purposes of combating direct intimidation by the
press or the defendants, however, the only obvious alternative to
enforcing juror anonymity seems to be sequestration. Because the
media did not challenge the anonymous jury order, they should not
be able to back into the issue with a collateral attack. And in
any event, “sequestering the jury imposes well-known and serious
burdens.” Brown, 218 F.3d at 431. Moreover, juror anonymity and
sequestration are remedies for overlapping but distinct problems.14
Sequestration protects the jury from trial publicity, extraneous
influences and harassment. See e.g., Mayola v. State of Ala., 623
F.2d 992, 1002 (5th Cir. 1980); United States v. Harris, 458 F.2d
14The ABA Standards for Criminal Justice Fair Trial and Free Press
states, in its section about the conduct of a criminal trial when problems
relating to the dissemination of potentially prejudicial materials are raised,
that “[a]s an alternative to sequestration in a case where there is a significant
threat of juror intimidation during or after the trial, the court may consider
an order withholding public disclosure of jurors’ names and addresses as long as
that information is not otherwise required by law to be a matter of public
record.” ABA Standards, § 8-3.6(b).
19
670, 674 (5th Cir. 1972)(“The purpose of sequestering is, the cases
agree, to protect the jury from interference.”). Anonymity
protects, in addition to the jurors, the venire persons and the
jurors’ families from influence exerted by outside parties. See
Krout, 66 F.3d at 1427 (“‘[T]he use of an anonymous jury is
constitutional when, 'there is strong reason to believe the jury
needs protection' and the district court 'tak[es] reasonable
precautions to minimize any prejudicial effects on the defendant
and to ensure that his fundamental rights are protected.'")(quoting
United States v. Wong, 40 F.3d 1347, 1376 (2d Cir. 1994)). To
insist on a sequestered, but not anonymous, jury in this case would
not necessarily have prevented undue influence being brought to
bear through harassment of jurors’ families. Sequestration is an
imperfect alternative to address the court’s particular concerns
about juror intimidation in this case.
The third factor discussed in Nebraska Press was the
efficacy of the prior restraint. The Supreme Court demonstrated
that the Nebraska courts’ order preventing publication of certain
inflammatory information was overbroad, unenforceable, and unlikely
to fulfill its purpose. On examination, this is the Achilles heel
of the district court’s noncircumvention orders. In the instant
case, the gag order is generally, though not fully, enforceable,
since acts that would compromise a juror’s anonymity would almost
20
surely take place within the court’s jurisdiction, no matter where
publication occurred.15 But the district court could not punish
every potentially offending publication outside its jurisdiction.
Moreover, the court’s orders are overbroad, based on the ambiguity
of the terms “circumvent” and “interfere” and the various
gradations of information that, if published, might conceivably
reveal a juror’s identity. The orders may also ultimately fail to
achieve their purpose; restraining the press from independent
investigation and reporting about the jurors would not necessarily
deter defendants who have already manifested a willingness to
tamper with court processes. Just as obviously, however, enforcing
a prior restraint on the press would make it more difficult for the
defendants to obtain information compromising juror integrity.
Without a prior restraint on these overeager media representatives,
juror anonymity might not be enforceable at all.
With considerable doubt, we conclude that under the
standards of Nebraska Press, particularly the requirement that a
court’s prior restraint order be narrowly efficacious, the
noncircumvention orders were unconstitutional insofar as they
interdicted the press from independent investigation and reporting
about the jury based on facts obtained from sources other than
15
There is of course the possibility that a member of the media might
innocently, and without knowledge of the court’s noncircumvention order, publish
information that violated the anonymity of jurors, but we need not hypothesize
so far for purposes of this case.
21
confidential court records, court personnel or trial participants.
Our doubt is based on the uncertainty whether the press would have
cooperated with an anonymous jury order whose enforceability was so
limited. Can it be that the First Amendment prevents a court from
fully enforcing orders it strongly believes necessary to protect
jurors, the jury system and the defendant’s fair trial rights?
Since the Supreme Court has not in recent history upheld any limit
on the press,16 we decline to be the first court to do so. We also
hope that the press understand that their enormous power under the
First Amendment should be tempered with respect for the judicial
system that protects the press as well as criminal defendants and
that inherent in such respect there should be deference to the
spirit of the court’s anonymous jury order.
B. The Order Denying Post-Verdict Access to Juror
Information
The News Media assert that there is no compelling reason
justifying continued “secrecy” about the jurors. In particular,
they submit that the district court’s reason for not releasing
jurors’ names and addresses - its promise of confidentiality - is
insufficient, and the “severe restriction” on the News Media’s
ability to contact jurors is not narrowly tailored to prevent a
substantial threat to the administration of justice. Since the
judicial system is presumptively open, access to information about
16
Apart from dicta in Florida v. BJF - supra.
22
jurors cannot be denied absent extraordinary circumstances. We
disagree with this characterization of the court’s reasoning, the
News Media’s interpretation of the scope of the court’s order, and
their reading of caselaw.
Tensions between First Amendment rights and the right of
an accused to trial by an impartial jury frequently develop in a
“sensational” case like this. Nebraska Press, 427 U.S. at 551, 96
S.Ct. at 2799. While a denial of access to confidential court
information may hamper newsgathering, this burden is thought to be
incidental when strong governmental interests are involved.
Gurney, 558 F.2d at 1209. Ensuring that jurors are entitled to
privacy and protection against harassment, even after their jury
duty has ended, qualifies as such an interest in this circuit.
United States v. Harrelson, 713 F.3d 1114, 1116 (5th Cir. 1983);
Express News, 695 F.2d at 810; Gurney, 558 F.2d at 1210 n.12
(“[T]he judge was following a well-established practice when he
refused to publicly release the jury list, which included the
names, addresses, and other personal information about the jurors.
Such protection of the privacy of the jurors was clearly
permissible, and certainly appropriate in a trial which attracted
public attention as this one did.”).17 The judge’s power to prevent
17
We note that in Press-Enterprise Co. v. Superior Court of California,
the Supreme Court held that a trial court could not constitutionally close all
but three days of six weeks of voir dire to protect privacy interests of
prospective jurors without considering alternatives to closure and articulating
23
harassment and protect juror privacy does not cease when the case
ends. Harrelson, 713 F.2d at 1117; see also United States v.
Edwards, 823 F.2d 111, 120 (5th Cir. 1987)(“[A]lthough post-trial
restrictions on news gathering must be narrowly tailored, the
jurors are entitled to privacy and protection from harassment even
after completing their duties.”).
The News Media preliminarily complain that the district
court did not issue findings that support continued juror
anonymity. Specific findings are not required in this circuit
where the reasons for the court’s decision are obvious and
compelling. In a case where a district court placed restrictions
on proposed interviews with discharged jurors, this court stated
that there was no need for the district court judge to hold
hearings18 before issuing such an order, especially in a highly
findings to support the broad order. 464 U.S. 501, 510, 104 S.Ct. 819, 824
(1984). The Court, however, was concerned with the broad sweep of the closure
order and stated that the trial judge could seal “such parts of the transcript
as necessary to preserve the anonymity of the individuals sought to be
protected.” Id. at 513, 104 S.Ct. 825-26. Applying Press-Enterprise, in Edwards
this court stated that “the Press I Court instructed that redaction of juror
names or portions of the transcript may constitute a reasonable alternative to
safeguard jurors from unwarranted embarrassment and yet preserve the competing
interests served by disclosure.” Edwards, 823 F.2d at 120. Likewise, this court
rejects the News Media’s argument that “‘minor discomfort’ of jurors does not
warrant the level of solicitude afforded the jurors in Press I,” finding instead
that the “usefulness of releasing jurors' names appears to us highly
questionable.” Id.18
The ABA Standards for Criminal Justice Fair Trial and Free Press
state that a court may issue a closure order denying access to specified portions
of judicial proceedings or related documents only after the parties and the
public are provided reasonable notice and an opportunity to be heard. ABA
Standards, § 8-3.2(b)(1). In addition, the standards state that the court should
24
publicized case. Harrelson, 713 F.2d at 1117. “A federal judge is
not the mere moderator of a jury trial; he is its governor for the
purpose of insuring its proper conduct.” Id. The trial court has
broad discretion, “‘based on law and on his own and common
experience,’ over aspects of the trial concerning the ‘handling of
jurors,’ e.g. sequestration, juror access to information, and
‘harassment of jurors.” Edwards, 823 F.2d at 116 (quoting
Harrelson, 713 F.2d at 1117); see also Gurney, 558 F.2d 1202, 1209
(“Within this discretion, therefore, the district judge can place
restrictions on parties, jurors, lawyers, and others involved with
the proceedings despite the fact that such restrictions might
affect First Amendment considerations.”). The district court’s
order maintaining a level of post-verdict juror anonymity must be
make specific findings that: “(A) unrestricted access would pose a substantial
probability of harm to the fairness of the trial or other overriding interest
which substantially outweighs the defendant’s right to a public trial; (B) the
proposed order will effectively prevent the aforesaid harm; and (C) there is no
less restrictive alternatively reasonable available to prevent the aforesaid
harm.” The Reporter’s Key to the standards makes clear that the principle of
access extends to jury selection, although it does not indicate whether this
section applies to the release of information regarding anonymous jurors. The
Reporter’s Key accompanying that section of the standards governing the selection
of a jury, Standard § 8-3.5, discusses whether a court may restrain the press
from knowing and/or publishing the names and addresses of jurors. The Reporter’s
Key suggested that “[c]ourts may withhold jurors’ names and addresses upon
particularized findings that ‘the interests of justice so require.’” However,
“[t]he mere desire of jurors to maintain privacy is not enough to support a
decision to withhold names and addresses.” Reporter’s Key to ABA Standard § 8-
3.2, http://www.abanet.org/media/nclm. This court’s cases have afforded greater
discretion to the district court than the ABA Standards recommend. Although this
court takes these recommendations into consideration, we are not bound by them
and have previously declined to follow them. See United States v. Capo, 595 F.2d
1086, 1092 n.6 (5th Cir. 1970) (refusing to adopt an ABA Standard regarding
jurors exposed to pre-trial publicity because it would require that this court
invoke its supervisory powers where the trial court took appropriate measures).
25
placed in context. It rests on an earlier promise of anonymity,
which itself was grounded in well-documented threats by the media
and the defendants to jurors’ privacy and independence. The
drumbeat of publicity surrounding the Edwards prosecutions
continues to this day. Requiring the court to recite such details
and repeat obvious facts would be a meaningless exercise.19
Turning to the scope of the court’s order, the News Media
overlook that this court refused, in Harrelson, to hold that a
district judge abused his discretion by banning repeated requests
for post-trial juror interviews where jurors expressed a desire not
to be interviewed. Harrelson, 713 F.2d at 1118. There is little
practical difference between the Harrelson order and the district
court’s order in the instant case. Here, the district judge polled
the jurors before releasing them from service to ask whether they
wished to have their names made public. None desired to waive
anonymity. The judge informed the jurors that if anyone later
wanted to have his identity released, he could do so. Both orders,
though slightly different in mechanism, have the same effect; they
protect the jurors from unwanted harassment. As this court has
observed:
19
The cases from other circuits on which the News Media rely for a rule
requiring specific findings were invariably those where the trial courts made no
effort to support their orders, and the case circumstances did not justify them.
See U.S. v. Antar, 38 F.3d 1348 (3d Cir. 1994); In re Globe Newspaper Co., 920
F.2d 88 (1st Cir. 1990); but compare U.S. v. Three Juveniles, 61 F.3d 86 (1st
Cir. 1995) (upholding federal statute allowing closure of federal prosecutions
involving juveniles).
26
[c]ommon sense tells us that a juror who has once
indicated a desire to be let alone and to put the matter
of his jury service behind him by declining to be
interviewed regarding it is unlikely to change his mind;
and if he does, he is always free to initiate an
interview. The court’s order does no more than forbid
nagging him into doing so.
Id. at 1118. Moreover, the district court’s order does not ban all
media interaction with the jurors, it just allows the jurors to
signal their willingness to submit to media contact.20
Significantly, at least one juror was interviewed following the
conclusion of the trial.
The News Media rely principally on this court’s decision,
In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982), to
challenge the district court’s post-verdict order limiting jury
contact. In Express-News, we vacated a district court rule that
categorically forbade interviews of any juror concerning the
deliberations or the jury verdict, except by leave of court granted
upon good cause shown. Id. at 807. Such a restriction could not
be imposed on newsgathering “unless it is narrowly tailored to
prevent a substantial threat to the administration of justice.”
695 F.2d at 810.
20
While the News Media assume that the post-verdict juror anonymity
permitted by the court’s order violates their right of access to juror
identities, what they are really complaining about is the enhanced difficulty of
contacting former jurors to interview them. The court’s order does not mandate
anonymity; it permits it.
27
Express-News marks only the beginning of this court’s
series of cases on post-verdict access to jurors, however.
Recently, this court upheld an order limiting access to jurors.
See United States v. Cleveland, 128 F.3d 267, 269 (5th Cir. 1997).
There, the judge instructed the jurors that they had no obligation
to speak to anyone about the case. In addition, she instructed
that “absent a special order by me, no juror may be interviewed by
anyone concerning the deliberations of the jury. I also instruct
you that the lawyers and the parties are not to attempt to question
you without an order from me.” The order was held sufficiently
narrow because it applied only to interviews with the jurors
themselves and only concerning their deliberations, but did not
apply to the verdict itself. Id. at 269. The order did not
foreclose “questions about a juror’s general reactions,” id., nor
did it “prevent jurors from speaking out on their own initiative.”
Id. Also in contrast to Express-News, the order did not impose
restrictions on post-verdict interviews and then condition those
restrictions by requiring “those who would speak freely to justify
special treatment by carrying the burden of showing good cause.”
Id. at 270 (quoting Express-News, 695 F.2d at 810). That the order
was unlimited in time was not in itself dispositive, because we
previously upheld similar restrictions in Harrelson, supra.
Likewise, the fact that the order applied equally to jurors willing
28
to speak and to those desiring privacy was not decisive. Cleveland
was distinguishable from Express News because it attracted a great
deal of media coverage. Id.
The district court’s order denying the request for juror
identifying information and questionnaires in this case is
analogous to the order upheld in Cleveland. The order is
sufficiently narrow. It has no requirement for a showing of good
cause for conducting post-verdict interviews. It merely states
that the court will not release juror information without the
juror’s consent. The judge affirmatively asked the jurors whether
they wished to relinquish their privacy.21 Any juror may, at any
time, voluntarily decide to relinquish his confidentiality. The
only restriction placed on such interviews is the court’s
instruction that jurors may not be interviewed concerning juror
deliberations absent a special order from the judge. This is
consistent with our understanding that “[c]ompelling governmental
interest[s] in the integrity of jury deliberation require that the
21
In In the Matter of Dallas Morning News Co., 916 F.2d 205, 206 (5th
Cir. 1990), this court denied a petition for writ of mandamus under a similar set
of circumstances. There, a newspaper requested that this court direct the
district court to conduct voir dire proceedings in public, attended by the press.
We recommended that the district court, “rather than closing a portion of the
voir dire proceeding in anticipation of privacy concerns, . . . inform the
prospective jurors carefully, in advance, that any of them may request to be
questioned privately . . .” Id. at 206. The judge here followed a similar
practice by asking the jurors whether they wished to be released from their
confidentiality agreements.
29
privacy of such deliberations and communications dealing with time
be preserved.” Gurney, 558 F.2d at 1210-11.
According to this circuit’s established caselaw,
protecting jurors from post-verdict harassment and invasions of
privacy is a legitimate concern. The measures used by the district
court, while at the outer limit of permissible restrictions, were
narrowly tailored to prevent real threats to the administration of
justice, not just in this case but in the subsequent related
prosecutions. If jurors voluntarily waive their anonymity and
consent to interviews on matters other than jury deliberations, so
be it. They need not become unwilling pawns in the frenzied media
battle over these cases.
The News Media finally contend that they do not desire
simply juror interviews but the basic information revealed by the
jurors’ names, addresses and still-confidential questionnaires.
Juror anonymity, in other words, should have ceased when the trial
ended. No caselaw requires this result, and the question appears
closely tied to the rationale for initially convening an anonymous
jury, an order they did not appeal. Threats of intimidation and
harassment do not necessarily end with the conclusion of trial. In
these prosecutions, several post-verdict motions have assailed
jurors’ conduct; without continuing anonymity, jurors would remain
vulnerable to abuse by those acting for the defendants. There may
be cases where a district court would abuse its discretion by
30
refusing to revoke an order of juror anonymity post-trial, but this
is not one of them.
C. The Synergistic Impact of Closure Orders
Although the News Media failed to challenge the initial
jury anonymity order, they nevertheless assert that the closure and
gag orders designed to protect the integrity of trial, even if not
individually unconstitutional, cumulatively deprived the public of
the constitutional openness required in our criminal trials. These
orders included (a) the gag order on trial participants, upheld by
this Court in Brown, supra; (b) the sealing of the juror
questionnaires; (c) the initial closure of most of the voir dire
hearings; (d) the noncircumvention orders preventing identification
during trial of the jurors; and (e) the confidentiality orders
protecting the jury after trial. Under the circumstances of this
case, they did not.
Very real threats were posed by excessive media coverage,
by the trial participants’ eagerness to manipulate the News Media,
and by the risk of jury harassment and taint. The judge was
empowered and entitled to counteract each of these threats in order
to assure a fair trial. With the sole exception of the overbroad
noncircumvention orders, her actions were appropriate. And as for
the public perception of the trial’s fairness, it cannot have been
harmed. Except for a blackout on the jurors’ identities, media
31
coverage of the trial was extensive. The public knew what was
going on. They knew that the jury rendered split verdicts,
exonerating all but defendant Brown and convicting him only on some
of the counts. The public can perceive that the jurors were
neither in the prosecution’s pocket, nor, because of their
anonymity, could they have been improperly influenced by the
defendants.22 The result of the trial seems to belie any contention
that the public’s rights to a transparent criminal justice system
were unconstitutionally compromised.
III. CONCLUSION
For the foregoing reasons, we first conclude that the
district court imposed an unconstitutional restraint to the extent
it ordered the News Media not to interfere with or circumvent the
anonymous jury order by wholly independent, legal newsgathering.
We reverse the district court’s orders to that extent and, in light
of our disposition, deny the mandamus petition on this matter.
Second, the district court’s order of October 16 granting the News
Media’s motion to unseal the transcript of the closed voir dire
renders the News Media’s petition for writ of mandamus moot on that
issue and we deny it without prejudice. Third, we affirm the
court’s post-verdict orders maintaining juror confidentiality,
22
In commenting on how juror anonymity might have affected the public’s
perception of the openness and fairness of the trial, we do not reach the direct
question whether anonymity was justified. That question is not before us.
32
limiting the release of juror information, and placing restrictions
on juror interviews.
The orders of the district court are AFFIRMED in Part,
REVERSED in Part. Petitions for writ of mandamus are DENIED.
33