Des Moines Register & Tribune Co. v. Osmundson

• Decision Date: 15 December 1976
• Docket Number: No. 2--59429,2--59429
• Citation: 248 N.W.2d 493
• Parties: 2 Media L. Rep. 1321 DES MOINES REGISTER AND TRIBUNE COMPANY and Michael Pauly, Plaintiffs, Cedar Rapids Gazette Co., et al., Intervenors, v. Honorable Robert OSMUNDSON, Defendant.
• Court: Iowa Supreme Court

Page 493

248 N.W.2d 493

2 Media L. Rep. 1321

DES MOINES REGISTER AND TRIBUNE COMPANY and Michael Pauly, Plaintiffs Cedar Rapids Gazette Co., et al., Intervenors, v. Honorable Robert OSMUNDSON, Defendant.

No. 2--59429.

Supreme Court of Iowa.

Dec. 15, 1976.

Robert G. Riley and Glenn L. Smith of Duncan, Jones, Riley & Finley and Gary G. Gerlach, Des Moines, for plaintiffs.

David A. Elderkin of Wadsworth, Elderkin, Pirnie & Von Lackum, Cedar Rapids, for intervenor Cedar Rapids Gazette Co.

Robert C. Tilden and Patricia N. Fetzer of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for intervenor Cedar Rapids Television Co.

Kermit S. Sutton of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for intervenor Des Moines Professional Chapter, Society of Professional Journalists, Sigma Delta Chi Edward J. Kelly and David L. Phipps of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for intervenor Palmer Broadcasting Co.

William R. King of Thoma, Schoenthal, Davis, Hockenberg & Wine, Des Moines, for intervenor WMT, Inc.

Richard C. Turner, Atty. Gen., and Jim P. Robbins, Asst. Atty. Gen., for defendant.

En banc.

McCORMICK, Justice.

In this case we are in the unusual position of issuing an opinion to explain a decision we have already made. On May 11, 1976, we entered an order in this original action enjoining defendant Honorable Robert Osmundson from enforcement of an order he entered a day earlier restraining all persons from disclosing the names, addresses and telephone numbers of jurors and alternates during the murder trial of Kandee Jacoby, then in progress in the Linn County district court. We ordered defendant to file the jury list forthwith as a public record in the Linn County clerk's office. Because of the exigencies of time we decided the case without opinion, reserving jurisdiction to issue an opinion after supplementary briefing of the issues by the parties. In the ensuing months the parties filed their additional briefs, and we now issue our opinion.

The principal question is whether defendant's order of May 10 restraining disclosure of jurors' identities was an unwarranted restraint on freedom of the press. A subsidiary question is whether a list of trial jurors is a public record.

The facts upon which these questions must be decided are not in dispute. Kandee Jacoby was charged with the murder of her husband Douglas. The homicide occurred January 3, 1976. Pretrial discovery and other procedures took several months, and the case was reached for trial on May 3, 1976. Before trial defendant sustained a defense motion requesting that Voir dire of potential jurors be conducted individually and with the public excluded. On the morning Voir dire was to commence, defendant entered the following order without request from anyone that he do so:

It is herewith ordered that during the trial of this case and until the jury is discharged:

1. No person shall disclose or in any way make public, the name, address or telephone number or in any way identify any individual juror.

2. No person shall photograph or make public any drawing, sketch or other reproduction of the physical appearance of any juror.

4. No photographs or pictures shall be taken above the second floor of the Linn County Court House until after the jury has been discharged.

A copy of the order was furnished to the jury panel before commencement of Voir dire.

A transcript of Voir dire discloses that thirty-six panel members were examined. Only two persons were excused for cause during the process of selecting twelve jurors and two alternates. The State and defense each interrogated the panelists extensively regarding the homicide victim's membership in a motorcycle gang called the 'Chosen Few'. The persons excused for cause expressed apprehension about retaliation by the Chosen Few against them or their families if they were members of a jury which acquitted defendant. Most panelists did not share this apprehension. In addition, most had been unaffected by pretrial publicity; few could remember what they may have read or heard about the case.

Almost all panelists, when asked, said defendant's order relating to publicity during trial would not affect them. None of the jurors expressed any fear about intimidation or influences during the course of the trial. The only juror who said the restraint on publicity eliminated her apprehension about the motorcycle gang appears not to have understood the order would be in effect only during the trial, as shown by this colloquy Q. As a result of anything you may have read or heard about this case or read or heard about the Chosen Few Motorcycle Club, do you have any fear or apprehension that might in any way make you a little bit fearful of returning a verdict of not guilty if that's the way the evidence was?

A. Any fear I might have had was removed when Judge Osmundson said that the jurors' nemes would not be published.

The record does not show that the order served and purpose in allaying apprehension of any other panel members about the propensities of the Chosen Few. Among the several panelists who expressed apprehension about post-verdict retaliation, no specific basis having any relationship to the Jacoby case was revealed. The apprehension appears to have been rooted in the generally bad reputation of the motorcycle gang or general suspicion of those who ride motorcycles. One juror said, 'Well, * * * I just don't like motorcycles and anybody that's got to do with that.'

The selection process was completed on May 5, 1976. Defendant called the names of the jurors selected to serve on the case. The jurors were seated with the public excluded. However, the public was not excluded from the swearing of the jury which immediately followed nor from any subsequent stage of the trial. Defendant kept the jury list, and no copy was filed in or available to the clerk's office.

On May 6, 1976, during the trial, plaintiffs Des Moines Register and Tribune Company, a publisher of newspapers of statewide circulation, and Michael Pauly, the company's state editor, filed an application in the criminal case asking that defendant revoke his May 3 order restraining publicity. When defendant informed counsel for plaintiffs that he would neither rule on the application nor revoke his order, plaintiffs brought an original action in this court seeking a temporary injunction restraining defendant from enforcement of his May 3 order.

Plaintiffs' petition for temporary injunction was heard by three members of this court on May 7, 1976. On the same date, this court entered an order sustaining the petition. This court's order provided in relevant part:

* * * It appears that the Order (of May 3) was entered without notice or evidentiary hearing in which the media might be heard and in which evidence on the critical issues involved could be developed. In these circumstances, and on the showing made on this submission, the Court finds that * * * the petition should be sustained. If the trial court's concern arises from apprehension about improper influences being brought to bear upon jurors during the course of the trial, other means including sequestration are available to protect the jurors.

Defendant was restrained from carrying out or enforcing his order of May 3.

Subsequent to entry of this court's order, plaintiffs published a courtroom sketch of the Jacoby jury and a photograph of several jurors taken outside the courthouse. They were unable to obtain a copy of the jury list because defendant had not received this court's order and had not filed the list in the clerk's office. On Saturday May 8, 1976, while the Jacoby trial was in recess for the weekend, defendant issued an order setting a hearing at 8:30 a.m. on Monday, May 10, 1976, to determine whether a new restraint on publicity should be imposed, limited to the following terms:

1. No person shall disclose or in any way make public the name, address, or telephone number of an individual juror, or alternate.

2. No photographs or pictures shall be taken above the second floor of the Linn County Courthouse until after the jury has been discharged and left the courthouse.

Notice of hearing was given to plaintiffs and local news media as well as to the parties in the Jacoby trial.

At the hearing on May 10, 1976, statements were made by defense counsel in the Jacoby case and by counsel for the news media. In addition counsel for plaintiffs questioned defendant. At the conclusion of the hearing, defendant found that the publicity surrounding the case, including publicity about his May 3 order, created a danger that influences might be brought to bear on jurors during the trial if their identities were known. He said, 'And we know of the actual fact of the case in another district where there were actual calls and a mistrial had to be declared.'

He added:

Sequestration of the jury is not feasible or practical because of family and business commitments of the jurors who would have been available for selection, the concern expressed by the various jurors for the safety of their children and in some instances for themselves.

Now, it need not be their infallible judgment, nor it need not be real, but only apparent, and the concern was apparent to them.

The prior order was known to the prospective jurors and to counsel, and had an effect on the selection of the jurors * * *. And probably last, and least important of any reason, the cost of sequestration of twelve jurors and two alternates, at least two bailiffs to provide their rooms, three meals a day, supervision of these jurors, is an expense which the Court in its discretion determines * * * is not desirable in this case.

The judge then entered an order restraining publicity in the two particulars set out in his order of May 8.

Plaintiffs, joined by intervenors Cedar Rapids Gazette Co., Cedar Rapids Television Co., Des Moines Professional Chapter of Sigma Delta Chi, Palmer Broadcasting Co., and ...