U.S. v. Peters
| Citation | 754 F.2d 753 |
| Decision Date | 08 February 1985 |
| Docket Number | Nos. 84-1723,s. 84-1723 |
| Parties | 11 Media L. Rep. 1513 UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. PETERS, et al., Defendants-Appellees. Appeal of the HEARST CORPORATION. UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. PETERS, et al., Defendants-Appellees. Appeal of NEWSPAPERS, INC., et al. & 84-1724. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Matthew J. Flynn, Quarles & Brady, Ralph J. Ehlinger, Meissner, Tierney, Ehlinger & Whipp, S.C., Milwaukee, Wis., for defendant-appellant.
Irvin B. Charne, Charne, Glassner, Tehan, Clancy & Taite, Milwaukee, Wis., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, BAUER, and WOOD, Circuit Judges.
This case involves the appeals of television and radio subdivisions of the Hearst Corporation located in Milwaukee, Wisconsin, of Newspapers, Inc., the publisher of the Milwaukee Sentinel, and of Michele Derus, a reporter for the Sentinel, from an order of the district court excluding the public and the media from the voir dire of prospective jurors in the case of United States v. Anthony Peters, et al., and from an order excluding Derus from access to admitted exhibits during the pendency of the Peters trial. We vacate both the closure order and the Derus exclusion order and declare that the closure and exclusion were erroneous.
In the case underlying this appeal, United States v. Peters, No. 83 CR 60 (E.D.Wis.1984), the defendants were charged with various offenses related to the distribution of cocaine. The Milwaukee media extensively publicized the arrests of the defendants and other pretrial events in this case. The voir dire of prospective jurors began on April 16, 1984 after the trial judge denied a defense motion to close the voir dire of prospective jurors to the public and the press. In seeking closure, defense counsel referred to the fact that prospective jurors were being questioned individually while the rest of the venire waited in a separate room, and stated that "it's not going to do a lot of good to have all those jurors sitting in the other room not hearing what happened in this room if they can go home tonight and read about it." Tr. at 4/16/84, 103. Although Judge Warren denied defense counsel's motion, he agreed to question each prospective juror on the subject of pretrial publicity. On April 16 three of the seven potential jurors questioned about pretrial publicity were dismissed for cause.
On April 17, the Milwaukee Sentinel, a morning newspaper, published an article written by Michele Derus describing the April 16 voir dire. Included in the text of the article were quotations of responses given by three dismissed individuals to inquiries about pretrial publicity. Neither names nor personal backgrounds of the prospective jurors were included in the April 17 article. On April 17, the second day of voir dire, one of the defendants renewed his motion to sequester the panel of over ninety prospective jurors citing the Sentinel article as grounds. One of the counsel for the defense conceded that the trial judge had instructed the jury not to read the newspapers, but asserted that such an instruction would be ineffective to secure an impartial jury. The judge refused to reconsider his original ruling. Another defense counsel, however, renewed the motion to close the voir dire on the grounds that the Sentinel's reporting had been allegedly irresponsible, arguing that "the danger of contaminating or interfering with free questions and answers and exchange of information on the individual voir dire is seriously impeded by this type of journalism." Tr. at 4/17/84, 110. Counsel argued that Derus' stories were "not accurate" and based on "hearsay." 1 A third defendant's counsel joined in the motion to close the voir dire. Although the judge noted that there was only one reporter and an artist in court at the time of the motions for closure on the morning of April 17, apparently implying that the defendants' concerns about publicity therefore might be unfounded, the court nonetheless granted the defense motion for closure because of his "concern for the degree to which the voir dire examination of potential jurors has been reported in the newspapers while the case is going on." The court also stated that he "was a little bit chagrined ... that some of the answers of the individual prospective jurors were in the newspaper." Referring to Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), the court indicated that he'd "have to take as narrow a solution as possible." Finally, the court ordered that the transcript of the voir dire be "made available at court expense ... to anybody that seeks it in the public record in the clerk's office after the voir dire is closed and the jury is formed."
The court then cleared the courtroom of members of the public and the media. The court made no inquiry to ascertain whether any prospective juror had read or heard about the Sentinel article. Neither Derus nor any attorneys representing the media were present to argue against the motion. On the afternoon of April 17, counsel for the Sentinel appeared and moved the court to reconsider its closure order, but the court denied this motion.
Attorneys for the various appellants appeared before the court to argue against the closure on April 18, but the court repeatedly refused to vacate his order and open the voir dire to the public. All subsequent voir dire proceedings regarding pretrial publicity were conducted in camera. The voir dire proceedings were concluded on April 20, 1984.
On April 20, a panel of this court denied as moot the Hearst Corporation's petition for mandamus to direct the trial judge to open the voir dire. On May 9, 1984, the same panel granted the Hearst Corporation's petition for a rehearing, vacated its original order, and denied the petition for a writ of mandamus because review of the district court's closure order would be entertained more appropriately through an appeal on the merits.
The jury trial in Peters began April 23, 1984, and concluded with a jury verdict on May 12, 1984. The jury heard the case without being sequestered until May 5th, on which day another article written by Derus appeared in the Sentinel. That article recited information contained in two documents which had been marked and used in an attempt to impeach a government witness during the Peters trial on May 3rd, but which had not been offered and received into evidence. The documents, which were summaries of statements made by the witness to federal investigators had been included in a stack of exhibits shown to Derus on Friday afternoon by one of the trial judge's law clerks who was unfamiliar with the case. The article quoted portions of the documents which identified five major league baseball players, two of whom were members of the Milwaukee Brewers, as allegedly having purchased cocaine from one of the defendants. The jury had heard testimony to the effect that professional athletes had been customers of that defendant, but those athletes had not been identified to the jury.
During a hearing on the morning of May 5, of which appellants were not notified and at which appellants were not present, the court ordered the jury sequestered as a result of the Sentinel article. In the course of the hearing to determine whether the jurors had seen or been influenced by the Sentinel article, the court also announced that for the duration of the trial, the trial exhibits would be made available to the public and the media only in the chambers of the trial judge between 8:30 and 9:00 a.m. on trial days. On each of the mornings of May 8, 9, and 10, Derus attempted to see the exhibits but each time she was told that the judge had instructed his staff to refuse to let her see the exhibits and that she was the only person barred from seeing them. On May 10th, the judge denied appellant's motion to vacate the court's order denying Derus access to the exhibits, stating "I don't have any doubt whatsoever that a court with an on-going criminal trial in process has the ability to and the power to control access to documents just in terms of case management." Tr. at 5/10/84, 204. The court implied that Derus had deliberately consulted only the law clerk unfamiliar with the case in order to gain access to the unadmitted exhibits, stating that he considered that conduct "a breach of proper etiquette, a breach of ethics, and a breach of trust." The court closed by noting that the press had a right to exercise "the very strong first amendment rights," and that his office had always tried to "honor the rights of the press," but that he believed that "the responsibility that goes with" the exercise of first amendment rights had not been shown in this case.
On appeal both the Hearst Corporation and Newspapers, Inc. challenge the district court's order closing the voir dire and Newspapers, Inc. challenges the court's order barring Derus from viewing the trial exhibits. Both appellants ask this court to vacate the district court's closure order and exclusion order and declare that those orders were in error. Because none of the defendants in United States v. Peters filed a brief in this matter, and because the government in its brief indicates that it takes no position on the correctness of the orders entered by the trial judge, except insofar as it cites at length from the statement of policy of the United States Department of Justice which advocates generally that the government exercise an "affirmative duty" to oppose the closure of judicial proceedings, this court asked Attorney Irvin B. Charne of Milwaukee to file a brief and argue as amicus in support of the trial court's decision. We appreciate Mr. Charne's efforts in this case and thank him for his assistance.
The voir dire of United States v. Peters from which Newspapers, Inc. and Hearst...
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