United States v. Blagojevich, 071410 FED7, 10-2359

Docket Nº:10-2359
Party Name:United States of America, Plaintiff-Appellee, v. Rod Blagojevich and Robert Blagojevich, Defendants. APPEAL OF: CHICAGO TRIBUNE COMPANY, THE NEW YORK TIMES COMPANY, ILLINOIS PRESS ASSOCIATION, and ILLINOIS BROADCASTERS ASSOCIATION
Judge Panel:Circuit Judge Flaum did not participate in the consideration or decision of this case. Posner, Circuit Judge, with whom Kanne, Williams, and Sykes, Circuit Judges, join, dissenting from denial of rehearing en banc.
Case Date:July 14, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

United States of America, Plaintiff-Appellee,


Rod Blagojevich and Robert Blagojevich, Defendants.


No. 10-2359

United States Court of Appeals, Seventh Circuit

July 14, 2010

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 CR 888-James B. Zagel, Judge.


After the court issued its opinion on July 2, 2010, a judge called for a vote on the judge's suggestion of rehearing en banc. This procedure is appropriate under Fed. R. App. 35(a), because, although Rule 35 authorizes litigants to file petitions for rehearing en banc, it does not condition en banc consideration on the filing of a petition. This court regularly hears cases en banc, without a litigant's petition, under the procedure established by Circuit Rule 40(e). A grant of rehearing en banc on the court's own motion is equally permissible when the panel issues its opinion without a Rule 40(e) circulation.

A majority of the judges in active service have voted not to hear this appeal en banc. Judges Posner, Kanne, Williams, and Sykes voted to hear the appeal en banc.

Circuit Judge Flaum did not participate in the consideration or decision of this case.

Posner, Circuit Judge, with whom Kanne, Williams, and Sykes, Circuit Judges, join, dissenting from denial of rehearing en banc.

An experienced trial judge made a reasonable determination that the release of jurors' names before the end of the trial would expose the jurors to the widespread mischief that is a daily if not hourly occurrence on the Internet. The jury is not "anonymous." The jurors' names are known to the parties and will be available to the public at the end of the trial. Given the extremely high profile of this case nationwide as well as in Illinois, and the unusual attention-getting conduct of the principal defendant and his wife, there is no good argument for releasing the jurors' names before the trial ends.

I'd like to be able to end this opinion right here. But the procedural complexities of the case and the unsound and confusing analysis in the panel's opinions require that I soldier on.

The original panel opinion was issued on July 2 (the amended opinion was issued on July 12). Later that day a member of the court asked for a vote on whether to rehear the case en banc. That is a sufficiently rare procedure to merit a brief comment.

A court is authorized to rehear a case without a request by a party. Western Pacific R.R. Corp. v. Western Pacific R.R. Co., 345 U.S. 247, 262-63 (1953); see also 28 U.S.C. § 46(c); Fed. R. App. P. 35(a) and Committee Notes; United States v. Shapiro, 383 F.2d 680, 681 n. 1 (7th Cir. 1967) (en banc); Radiant Burners, Inc. v. American Gas Ass'n, 320 F.2d 314, 317 (7th Cir. 1963) (en banc); United States v. Padilla, 403 F.3d 780 (1st Cir. 2005) (en banc); Cooper v. Woodford, 357 F.3d 1054 (9th Cir. 2004); Mahony v. CSX Transportation, Inc., 980 F.2d 1379 (11th Cir. 1993) (en banc). Although such requests have been rare in this court, several years ago another member of the court did make one, United States v. Gipson, 431 F.3d 993 (7th Cir. 2005), and the propriety of doing so cannot be questioned.

After the judges exchanged comments, but before the voting on whether to grant rehearing en banc was complete, the panel decided to alter its opinion to meet some of the concerns expressed in the exchange of comments. This is not an unusual response when rehearing en banc is sought; it is entirely proper. But what is irregular is that the panel issued its amended opinion at the same time that it circulated it, even though several judges eligible to vote on whether to rehear the case en banc had not yet done so-they were awaiting the circulation of the amended opinion. In any event the amendments to the original opinion are perfunctory, confusing, and internally inconsistent.

The case is exceptional and the issue presented by the appeal merits the attention of the full court. The trial of ex-governor Rod Blagojevich and his brother is the most closely followed criminal proceeding in this circuit since the trial of Rod Blagojevich's predecessor as governor of Illinois, George Ryan; and the reversal of Judge Zagel's denial of the media's request for access to the names of the jurors while the trial is still going on has cast a cloud over the trial.

Before jury selection, the district judge promised the pool of prospective jurors that he would not make public the names of the jurors selected for the trial until the trial ended. If as a result of the panel's decision and the hearing that it has ordered, or of a subsequent appeal should the judge reaffirm his ruling after the hearing, he is forced to renege on his promise, the jurors may well be upset, concerned for their privacy, fearful of the prospect of harassment (the prosecutors have already sought a gag order against Rod Blagojevich because of his out-of-court statements about the case), and angry at having been induced by false pretenses to agree to take months out of their life to perform jury service. (Although jurors are conscripts rather than volunteers, as a practical matter jurors unwilling to sit in cases expected to last months are excused.)

The jurors know by now that a hearing has been ordered to explore whether to continue to maintain the confidentiality of their identities. One of the successful media appellants lost little time in spreading the word. See John Chase, "Identities of Blagojevich Jurors Could Be Made Public, " Chicago Tribune, July 2, 2010, http://articles. chicagotribune.com/ 2010-07-02/news/ct-met-blagojevich-jurors-20100702_1_juror-names-jurors-names-corruption-trial (visited July 7, 2010). Other media have chimed in. See "Blagojevich Jurors, " Google, www.google.com/#hl= en&&sa=X&ei=j-c3TKf4M8WBlAepq5nTBw&ved= 0CBsQvwUoAQ&q=blagojevich+jurors&spell=1&fp= 45f7bf772e327ef3 (visited July 9, 2010); see also "Blagojevich Jurors Identities, " Google, www.google.com/ #hl= en&source=hp&q= blagojevich+ jurors+identities&aq= f&aqi=g-p1&aql=&oq=&gs_rfai=CL9ZBbXg8TNfgFJX 6gAS684TmBwAAAKoEBU_Q9NOn&fp=45f7bf772e327ef3 (visited July 13, 2010). The panel opinions ignore the jurors' likely reactions to the news that the judge must conduct a hearing to determine whether to reveal their names. Conceivably he may decide to declare a mistrial. Should that happen, and the case be retried, what will the new pool of prospective jurors think?

The elaborate preparations that the government would have had to make for presenting the extensive evidence called for by the original panel opinion would have delayed the end of a trial that even without such an interruption was expected to last between 15 and 17 weeks. (The trial began on June 3, and so may last another 10 to 12 weeks, although there is speculation in the media that it will be over sooner.) Jurors wouldn't like to be told that it would take even longer for them to regain their freedom because of the judge's having to conduct a hearing of uncertain length to determine whether they shall retain their privacy-a matter of great interest to them, though the panel opinions do not suggest that they be consulted about it.

The original panel opinion told the district judge to conduct a hearing that would produce answers to the following "vital questions. Have jurors in other publicized cases been pestered electronically (email, instant messaging, or phone calls), or by reporters camped out on their doorsteps? If judges in other high-visibility cases have told the jurors to ignore any unsolicited email or text messages, have those instructions been obeyed? If not, do any practical alternatives to sequestration remain? The Department of Justice, and the lawyers who represent the press, may be able to present evidence and arguments that would be helpful in addressing those issues." (Emphasis in original. As a detail, the word "sequestration" is used in error; it means isolating the jurors from contact with the outside world during the trial.) Evidence about jury experiences or behavior in similar trials would be difficult to obtain, especially since electronic harassment is a relatively new phenomenon of which little empirical evidence may yet exist. A hearing to address these issues in the depth required by the original opinion could not have been completed quickly.

The amended opinion substitutes for "vital" the words "potentially important, " while leaving the list of evidentiary inquiries unchanged. The opinion then inserts a new paragraph, which I must quote in full:

What evidence the judge must consider depends on what the parties submit. We do not imply that any of the subjects mentioned above is indispensable to a decision. In Black the parties chose not to present any evidence, and the court then decided in light of the parties' arguments and the judge's experience with jurors' concerns and behavior. The district judge in this case has referred elliptically to efforts to contact him by email and in other ways; perhaps putting details on the record would help to make concrete some potential effects of disclosing jurors' names while the trial is under way. What is essential-what occurred in Black but not so far in this case-is an opportunity for the parties (including the intervenors) to make their views known in detail, followed by a considered decision that includes an explanation why alternatives to delayed release of the jurors' names would be unsatisfactory.

In fact the parties in this case had exactly the same opportunity "to make their views known in detail" and, if they wanted, present evidence as the parties in the Black case (discussed later in this opinion); in neither case did the parties present any evidence of consequence. (Paradoxically, some evidence was presented in this case-none in Bla...

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