Sacramento Bee v. U.S. Dist. Court for Eastern Dist. of California, Northern Div., 81-7255

• Decision Date: 06 November 1981
• Docket Number: No. 81-7255,81-7255
• Citation: 656 F.2d 477
• Parties: 7 Media L. Rep. 1929, 7 Media L. Rep. 2376 The SACRAMENTO BEE, published by McClatchy Newspapers, Petitioner, v. UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OF CALIFORNIA, NORTHERN DIVISION, Respondent, United States of America, William Dale Smith, Cheryl Bickford, James Cameron, Julius Fisherman, Norman Heifner, Andrew Pope, and Norman Truax, Real Parties In Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 477

656 F.2d 477

7 Media L. Rep. 1929, 7 Media L. Rep. 2376

The SACRAMENTO BEE, published by McClatchy Newspapers, Petitioner, v. UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OF CALIFORNIA, NORTHERN DIVISION, Respondent United States of America, William Dale Smith, Cheryl Bickford, James Cameron, Julius Fisherman, Norman Heifner, Andrew Pope, and Norman Truax Real Parties In Interest.

No. 81-7255.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 15, 1981.

Decided Sept. 14, 1981.

As Corrected on Denial of Rehearing and Rehearing En Banc

Nov. 6, 1981.

Douglas T. Foster, Sacramento, Cal., for petitioner.

E. Richard Walker, Sacramento, Cal., for respondent.

Petition for Writ of Mandamus to the United States District Court for the Eastern District of California.

Before WRIGHT, TRASK and ANDERSON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The Sacramento Bee petitions for a writ of mandamus directing the district court to issue no further orders excluding the press from any stage of a criminal trial. We conclude that the court's decision to close two brief hearings during the course of a two-month trial, after it had carefully considered alternatives and made findings in support of its closure decision, does not warrant issuance of the writ.

FACTS

The jury trial of seven of 22 persons indicted for trafficking in heroin began in Sacramento early in March 1981. Before trial, the defendants and the approaching trial were well publicized by the Bee.

In selecting a jury, the judge determined that the jurors had no prejudicial information. After selection, he instructed the jury to avoid any media accounts of the trial.

At the start of the trial, the Bee published a story about the prior criminal activities of one defendant. Counsel for that accused, joined by other defense counsel, moved to sequester the jury. Having learned that one juror had seen but not read the story, the judge granted the motion.

It appeared, after a conference with the federal marshal, that sequestration would require two weeks to arrange, would require housing of the jurors away from their homes, constant attendance by marshals, and transportation by chartered bus with covered windows.

Defense counsel then decided the sequestration was not in the best interests of their clients. The earlier order was vacated, and the court directed that government personnel, defense counsel, court personnel and the defendants refrain from communicating with the press about the trial.

The court admonished the jurors again to ignore media reports about the trial and directed them to have family members remove from newspapers any accounts of the trial.

After another Bee article about the trial on March 31, the court polled the jury. The juror who had seen the earlier story had read the later one and learned of inadmissible evidence about alleged organized crime connections of one defendant. Because of the prejudicial nature of that information, the court removed that juror.

On April 3, the court excused the jury, the public and the press from the courtroom for an evidentiary side bar conference. The defendants and their families remained. Neither the press nor public objected and the court made no findings supporting closure.

On April 7, in open court without the jury, the court excluded the press, but allowed the public to remain while the government made an offer of proof.

When a Bee reporter asked for reasons to justify closure, the judge said that he feared that the jury might learn indirectly of inadmissible evidence. He noted that one juror already had been disqualified for that reason.

He explained that he had tried to balance the rights of the news media and the defendants by refusing to sequester the jury, and by refusing to exclude the press from each motion out of the presence of the jury. He proposed that motions to exclude the press would be considered as each problem arose, and said that he would grant such motions only "where there is a substantial possibility that evidence will not be put before the jury, (because) I don't want them to get it indirectly through the media." The reporter left the courtroom without objecting.

Counsel for the Bee appeared on April 8 and objected to exclusion of the press. The judge told him

I am just telling you that I sat and thought through every alternative that I could find that I have been able to think of and they all don't meet the problem. Now I am anxious for you to supply me with an alternative that would work.

When counsel for the Bee suggested sequestration, the judge explained that was not feasible because it would mean

in effect, putting the jury in prison, in effect putting them in a posture in which there will be deep resentment against the Court, and perhaps the government, and perhaps the defendants in this matter, having results which will be unpredictable but clearly serious.

He explained the mechanical complications of sequestration. He noted also that the jury was annoyed at the length of the trial, then in its eighth week, and said that sequestration could impose otherwise avoidable hardships because the jury had received no advance warning. One juror, a pregnant woman, might have asked to be excused had she known sequestration was possible.

When the court asked the parties again about sequestration, all said that they preferred exclusion of the media.

On April 10, a Bee attorney restated the newspaper's opposition to closure. The court again considered and rejected admonishing the jury because one juror had been excused after he learned of inadmissible evidence, despite warnings to avoid news accounts of the trial.

It rejected the suggestion to clip the jurors' newspapers because the electronic media were broadcasting the newspaper's stories, the excused juror had learned of the prejudicial information despite taking that precaution, and it would be impractical to have marshals go to jurors' homes to remove stories of the trial from all newspapers.

The Bee again suggested sequestration, but offered no new arguments or better suggestions.

The judge rejected considering evidentiary matters in side bar discussions because it would be "terribly inhibiting to whisper with the jury here when there are important things to be said which I want to think about and hear clearly."

When defense attorney suggested holding evidentiary hearings in chambers or in the jury room, Bee counsel challenged the right of the court to hold bench conferences on evidentiary questions.

Finally, the court said that closure caused only a temporary denial of information because reporters' transcripts would be available immediately at the end of the trial.

DISCUSSION

I Jurisdiction

The Bee seeks a writ of mandamus under 28 U.S.C. § 1651 and has standing because it was excluded from a criminal trial and was inhibited from reporting news. See United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978). The case is not moot, although the trial is completed, because closure orders are likely to escape appellate review. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980).

II Standard of Review

Writs of mandate are issued only in extraordinary circumstances, guided by '(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires, (2) the petitioner will be damaged or prejudiced in a way not correctable on appeal, (3) the district court's order is clearly erroneous as a matter of law, (4) the district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules, and (5) the district court's order raises new and important problems, or issues of first impression.' (citations omitted)

these factors, all of which need not be present

Wheeler v. United States, 640 F.2d 1116, 1120 n.9 (9th Cir. 1981).

The first, second and fifth factors weigh heavily in favor of issuance of the writ because (1) the Bee is not a party to the criminal case and lacks standing to bring a direct appeal, see United States v. Sherman, 581 F.2d 1358, 1360 (9th Cir. 1978), (2) the court could continue to close hearings at criminal trials before an appeal could be heard, and (3) this case raises an important issue of first impression.

The fourth factor does not support issuance because two closure orders in an unusually well-publicized criminal trial do not qualify as oft-repeated error.

The key factor is whether the closure orders are so clearly erroneous as a matter of law that the Bee's right to issuance of the writ is clear and indisputable. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980).

III. The Closure Orders

In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court held that the press has a First Amendment right of access to a criminal trial. ¹

The plurality said that the court should consider alternatives to closure, and that "(a)bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public." Id. at 581, 100 S.Ct. at 2830. It held that the trial court improperly closed the trial because the judge made no findings to support closure, made no inquiry into less intrusive alternatives, such as sequestration, and did not recognize the public's and the press's constitutional right to attend a trial. Id.

It cautioned that this right of access is not absolute and that courts may still impose reasonable restrictions to ensure a fair trial. Id. at 581 n.18, 100 S.Ct. at 2830 n.18. It did not, however, indicate how courts should balance these interests.

Richmond Newspapers followed a confusing decision in Gannett Co., Inc. v. De Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), which sustains closure of a...