920 F.2d 88 (1st Cir. 1990), 90-1338, In re Globe Newspaper Co.

Docket Nº:90-1338, 90-1349.
Citation:920 F.2d 88
Party Name:In re GLOBE NEWSPAPER COMPANY, Petitioner. UNITED STATES of America, Appellee, v. Edmund M. HURLEY, et al., Defendants, Appellees, Appeal of GLOBE NEWSPAPER COMPANY, Appellant.
Case Date:November 28, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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920 F.2d 88 (1st Cir. 1990)

In re GLOBE NEWSPAPER COMPANY, Petitioner.

UNITED STATES of America, Appellee,

v.

Edmund M. HURLEY, et al., Defendants, Appellees,

Appeal of GLOBE NEWSPAPER COMPANY, Appellant.

Nos. 90-1338, 90-1349.

United States Court of Appeals, First Circuit

November 28, 1990

Heard June 6, 1990.

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E. Susan Garsh with whom Jonathan M. Albano, Tory A. Weigand and Bingham, Dana & Gould, Boston, Mass., were on Petition for Writ of Mandamus and Prohibition, for petitioner, appellant.

James C. Heigham and Choate, Hall & Stewart, Boston, Mass., on brief, for Massachusetts Newspaper Publishers Ass'n, amicus curiae.

F. Dennis Saylor, IV, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., and Robert L. Ullmann, Deputy Associate U.S. Atty., were on brief for the U.S.

Charles Fried, Cambridge, Mass., with whom John G. Fabiano, Waban, Mass., Christopher J. Supple, Needham, Mass., and Hale and Dorr, Boston, Mass., were on Petition for Writ of Mandamus and Prohibition, for respondent, the Honorable Edward F. Harrington.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge and LEVIN H. CAMPBELL, Circuit Judge.

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LEVIN H. CAMPBELL, Circuit Judge.

The Globe Newspaper Company ("Globe") appeals from an order of the District Court for the District of Massachusetts which effectively denied to Globe reporters permission to examine the names and addresses of jurors who had participated in a just-completed criminal trial. The Globe alternatively petitions for a writ of mandamus directing the district court to release the jury list. The Globe argues that the First Amendment to the United States Constitution, as well as the Jury Selection and Service Act, 28 U.S.C. Sec. 1861 et seq., the relevant local district court jury selection rule, and the common law, all entitle the newspaper to be told the juror names and addresses after completion of the trial.

The criminal trial to which the Globe's request relates began on March 5, 1990 and ended in April 1990. There were originally seven defendants, including a prominent Boston defense attorney, several other attorneys, a reputed fugitive Mafia member, and a member of the Bahamian parliament. The charges centered around an alleged conspiracy to conceal illegal drug profits from the Internal Revenue Service. Several defendants and charges were dismissed by the court during the trial. The jury eventually convicted two defendants and acquitted one of them.

Pursuant to the judge's express order, the court records listing names and addresses of jurors were kept confidential during the trial. The court's right to do so during the trial is not an issue in the present proceeding.

Immediately following the verdict and jury's discharge on April 19, 1990, the judge advised as follows:

Members of the jury, the press may call you. It is up to you whether to speak with them.

My suggestion is this, though: These are very grave matters. You have deliberated as a body, in confidence, and it is best that the result of your deliberations should remain in confidence.

The same day Globe reporters sought access to the court's record of the juror names and addresses. Access was refused, and the Globe then formally moved to intervene in the case and for access to the list of the jurors, and their addresses. The district court denied the motion to intervene. 1 The Globe thereupon appealed from the order denying intervention and it also filed in this court a petition for a writ of mandamus.

I.

Because the Globe was never a party to the criminal proceeding below, and because the right of a non-party to intervene in a criminal proceeding is doubtful, we decline (without deciding if there is, in fact, a right to intervene under these circumstances) to entertain the Globe's appeal from denial of that order. In re Globe Newspaper Co., 729 F.2d 47, 50 & n. 2 (1st Cir.1984). Instead, we find jurisdiction to review under the All Writs Act, 28 U.S.C. Sec. 1651. As we held in the cited case, "the issue that [the] Globe raises is sufficiently novel and important to justify mandamus review." Id. See In re Berkan, 648 F.2d 1386, 1389 (1st Cir.1981); Miller v. United States, 403 F.2d 77, 79 (2d Cir.1968). Denial of access to the jurors' list adversely affects newsgathering, compare Data Processing Service v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970); denial also implicates important constitutional rights, while, on the other

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hand, release may impinge upon juror privacy and raise important court administration issues, infra. The district court's ruling is accordingly an appropriate matter for consideration under our supervisory powers. We note that the district judge was ably represented on appeal by experienced counsel. This was helpful to this court, as the position taken by the United States Attorney on behalf of the United States, being in accord with that of the Globe, did not articulate the judge's position favoring jury privacy.

II. Synopsis

The upshot of our mandamus review, as we explain below, is that we now direct the district court to turn over the requested juror names and addresses to the Globe. We interpret Sec. 10(c) of the District of Massachusetts Plan for Random Selection of Jurors as making this information available to the public unless the presiding judge identifies specific, valid reasons necessitating confidentiality in the particular case. To justify impoundment after the trial has ended, the court must find a significant threat to the judicial process itself. No threat of this dimension was found here. The court did not find, for instance, that the personal safety of the jurors would in any way be compromised by revealing their identities. No doubt stronger reasons to withhold juror names and addresses will often exist during trial than after a verdict is rendered. After the verdict, release normally would seem less likely to harm the rights of the particular accuseds to a fair trial. Compare In re Globe Newspaper Co., 729 F.2d at 52-53. Even so, there could be circumstances necessitating withholding of juror identities after verdict--such as, most obviously, when there is some special risk of personal harm to the jurors. Failure of the court to shield jurors from threatened harm could seriously damage the functioning of the courts and the jury system. Were jurors to feel that their personal safety was at risk, they might not only be reluctant to serve but might tailor verdicts so as to forestall harm to themselves, thus depriving the parties of an impartial jury.

However, where--as here--the trial judge points to no special reasons for confidentiality other than the personal preferences of the jurors and the judge's distaste for exposing them to press interviews, the public's long-term interest in maintaining an open judicial process must prevail in the balance. In a democracy, criminal trials should not, as a rule, be decided by anonymous persons.

A reason the district judge suggested for withholding the names and addresses in the present case was his concern that reporters might question jurors as to what transpired during jury deliberations. We share his view that it is unfortunate when a juror divulges the jury's deliberations. Here the judge properly urged the jurors to keep their deliberations confidential. 2 Nonetheless, we do not think the mere possibility of ill-advised disclosures ordinarily justifies withholding the juror identities.

III. Requirement of Disclosure Under Federal Jury Selection

Rules

The Globe argues that denial of access to juror identities in this case violates the Jury Selection and Service Act of 1968, 28 U.S.C. Sec. 1861, et seq. (1982) 3 and the District of Massachusetts Plan for Random

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Selection of Jurors, Sec. 10(c), 4 which implements the Act in the District of Massachusetts. The Globe contends that these regulations carry a presumption of public access to petit jury lists which may be overcome only when "the interests of justice so require." The Globe further argues that the reasons the district judge advanced here for withholding the names and addresses failed to meet the interests-of-justice standard.

We agree with the Globe on both counts. The local jury selection plan adopted by the District of Massachusetts pursuant to authority of the federal statute bars disclosure of the names of potential jurors until the persons called for jury service "have appeared, or failed to appear, in response to the summons." The plan goes on to provide that "[a]ny judge of this Court may order that the names of jurors remain confidential even thereafter if the interests of justice so require." (Emphasis provided.) The interests-of-justice language in the local rule conforms to the language found in 28 U.S.C. Sec. 1863(b)(7), authorizing local jury plans to permit district judges to keep confidential the names drawn from the jury wheel "in any case where the interests of justice so require."

The second sentence in Sec. 1863(b)(7) is, to be sure, prefaced with the words, "If the plan permits these names to be made public ...", suggesting that a local plan might optionally decline to permit juror names to be made public at all. This option was apparently inserted to allow

the present diversity of practice [around the nation] to continue. Some district courts keep juror names confidential for fear of jury tampering. [ 5] Other district courts routinely publicize the names. H.R.Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 1792, 1801.

The fact remains, nonetheless, that the District of Massachusetts has chosen to be in the latter camp--that is, to allow juror names to be made public after summons and...

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