Central South Carolina Chapter, Soc. of Professional Journalists, Sigma Delta Chi v. U.S. Dist. Court for Dist. of South Carolina, 76-1757

Citation551 F.2d 559
Decision Date13 January 1977
Docket NumberNo. 76-1757,76-1757
Parties2 Media L. Rep. 1193 CENTRAL SOUTH CAROLINA CHAPTER, SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, et al., Appellants, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF SOUTH CAROLINA et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

T. Travis Medlock, Columbia, S. C. (Medlock & Davis, Columbia, S. C., on brief), for appellants.

Glen E. Craig, Asst. U. S. Atty., Columbia, S. C. (Mark W. Buyck, Jr., U. S. Atty., and Wistar D. Stuckey, Asst. U. S. Atty., Columbia, S. C., on brief), for appellees.

Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

The district court, in the criminal case of United States v. J. Ralph Gasque, et al., No. 76-104, in the District of South Carolina, entered an order, previous to the trial, which has not yet been held, regulating the conduct of the participants in the trial and the conduct and seating of the press in the courtroom.

From this order, Central South Carolina Chapter, Society of Professional Journalists, Sigma Delta Chi, (Society) appeals those parts regulating the conduct of the participants in the trial and the conduct of the press in the courtroom.

It is clear, so far as this record now shows, that the criminal case involved was of great public interest and that it is easily classified as a widely publicized or sensational case as mentioned in the report of the Committee on the Operation of the Jury System hereinafter referred to. The defendant Gasque, for example, was a State Senator and was in a campaign for reelection at the time the order was entered. Extensive press coverage followed the case.

The order, set out in the margin, 1 prohibited participants in the trial, including lawyers, parties, witnesses, jurors, and court officials from making "extrajudicial statements which might divulge prejudicial matter not of public record," and from "mingling with or being in proximity" to reporters and photographers in the environs of the court. It prohibited the release of names and addresses of prospective jurors, and the sketching or photographing of jurors within the environs of the court. It prohibited witnesses from news interviews during the trial period.

Pursuant to Rule 21(b) of the Federal Rules of Appellate Procedure, we entered an order permitting the district judge and the parties to the criminal action to respond to the purported appeal, for which purpose we treated the papers as a petition for mandamus. The Society is not a party to the criminal prosecution. Pursuant to 28 U.S.C. § 1651, we also entered a stay of the order.

We think the answer of the district judge correctly points out that we should not grant relief upon the petition for mandamus. We, therefore, vacate the stay, and, for reasons indicated below, dismiss the appeal.

This court may issue all writs "necessary or appropriate in aid of (its) . . . jurisdiction and agreeable to the usages and principles of law." 28 U.S.C. § 1651. But the traditional use of the writ of mandamus under the All Writs Act, "in aid of appellate jurisdiction . . . has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1942). In issuing this order, the district judge neither exceeded nor refused to exercise jurisdiction. The most that the Society can claim is that he has erred in matters within his jurisdiction. Extraordinary writs do not reach to such cases. Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 100 L.Ed. 1377 (1955). 2

A writ of mandamus is not a substitute for an ordinary suit. It will issue only where the duty to be performed is ministerial and the obligation to act peremptory and plainly defined. The law must not only authorize the demanded action, but require it; the duty must be clear and indisputable. United States v. Wilbur, 283 U.S. 414, 420, 51 S.Ct. 502, 75 L.Ed. 1148 (1930). It has been said that the writ of mandamus will not issue to compel an act involving the exercise of judgment and discretion, Louisiana v. McAdoo, 234 U.S. 627, 633, 34 S.Ct. 938, 58 L.Ed. 1506 (1913), and that a Court of Appeals cannot use the writ to actually control the decision of the trial court, Platt v. Minnesota Mining Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), although the standard at least once has been stated in this court as abuse of discretion. Akers v. N&W Ry., 378 F.2d 78 (4th Cir. 1967).

The order issued by the district judge was a result of his judgment that it was necessary to protect the defendant's right to a fair trial. We do not reach the merits of the order and we express no opinion concerning its validity. We note only that it involved the exercise of judgment by the district court on a question not nearly conclusively settled in law, especially adversely to the opinion of the district court, that is, whether, rather than prohibiting the press from publishing information already obtained, which the district court did not do, and which may only be done in extraordinary circumstances not shown to be present here, it may indirectly prevent the press from obtaining information by regulating trial procedures and ordering the trial participants not to speak with members of the press.

In view of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), and Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1973), the Society's right to relief from the order is far from clear and indisputable. Even considering abuse of discretion to be the standard, that has not been shown. Thus, we do not grant relief on the petition for mandamus. 3

In Sheppard, the Supreme Court suggested several remedial procedures to prevent prejudicial publicity: closely regulating conduct of newsmen in the courtroom, insulating witnesses, and proscribing "extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests . . . the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case." 384 U.S. at 361, 86 S.Ct. at 1521. Thus, we see that, on its face, the district court's order falls within the Sheppard prescription. The Report of the Committee on the Operation of the Jury System on the "Free Press Fair Trial" Issue, 45 F.R.D. 391, especially 404-13, is of like effect.

In Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the Court struck down an order restraining publication of confessions, admissions, or facts "strongly implicative" of the accused in a widely reported murder of six persons. The order also prohibited reporting or commentary on judicial proceedings held in public. But, in so doing, it did not overrule Sheppard. Indeed, the Court cited with approval several passages from the Sheppard opinion, including the following:

"Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused

Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming within the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures." (Emphasis added by the Court in Nebraska ).

Finally, in Pell, the press challenged a regulation by the California Department of Correction on first amendment grounds. The regulation prohibited interviews with specific individual inmates. The Supreme Court upheld the regulation, saying: . . . "(T)he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." 417 U.S. at 833, 94 S.Ct. at 2810. From these cases, it can be seen that the Society's right to the relief it seeks is far from clear and indisputable.

We also dismiss the Society's attempted appeal from the district court's order. It is clear that the Society should not participate in a case to which it is not a party. Even in civil cases, intervention requires an interest in the transaction or property before the court. FRCP 24. But the Society has no interest in the determination of the defendant's guilt or innocence to justify its intervention. Moreover, there is no counterpart to intervention in the criminal law or rules.

But it has been suggested that in keeping with the spirit of the Federal Rules, 4 we now treat the Society's motion for a stay in the district court as a complaint initiating an action against the district court's order, that is, that we treat this case as one which may be initiated on motion without a complaint. See Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1961); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1930); Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1928).

In Go-Bart, the Supreme Court permitted a third person to make a motion in a criminal case for return of his illegally seized property, even though the movant was not a defendant, himself, and had no stake in the defendant's guilt or innocence. Rule 41(e) 5 of the Federal Rules of Criminal Procedure is not inconsistent with the Go-Bart procedure and...

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