Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona

• Decision Date: 14 September 1998
• Docket Number: No. 97-71119,97-71119
• Citation: 156 F.3d 940
• Parties: 26 Media L. Rep. 2291 PHOENIX NEWSPAPERS, INC., an Arizona corporation; KPNX Broadcasting, Petitioners, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, Respondent. United States; John Fife Symington, III, Real Parties in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 940

156 F.3d 940

26 Media L. Rep. 2291

PHOENIX NEWSPAPERS, INC., an Arizona corporation; KPNX Broadcasting, Petitioners, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Respondent United States; John Fife Symington, III, Real Parties in Interest.

No. 97-71119.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 1998.

Decided Sept. 14, 1998.

David J. Bodney, Peter B. Swann, Steptoe & Johnson, LLP, Phoenix, AZ, for Petitioners.

George Cardova, David J. Schindler, Asst. U.S. Attys., Los Angeles, CA, for Real Party in Interest, U.S.

Petition for a Writ of Mandamus to the United States District Court for the District

of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CR-96-00250-RGS.

Before: HUG, Chief Judge, FERNANDEZ and THOMAS, Circuit Judges.

THOMAS, Circuit Judge:

Phoenix Newspapers, Inc. and KPNX Broadcasting Co. (collectively, "the Press") petition for a writ of mandamus challenging the district court's order sealing the transcripts of hearings conducted during jury deliberations in a criminal trial. We hold that the district court erred by denying access to the hearing transcript without complying with the procedural and substantive requirements for sealing the record from the public.

I

On May 13, 1997, the criminal jury trial of John Fife Symington, the sitting Governor of Arizona, began. During the approximately three full months of the trial and thereafter, the case received extensive media coverage. On August 8, 1997, the case was sent to the jury, which deliberated for three and a half weeks before returning a guilty verdict on seven counts of fraud on September 3, 1997.

On August 22, 1997, in the midst of jury deliberations, the district court conducted two hearings to investigate the reports of two jurors and Symington's secretary that they had received threatening telephone calls during the previous night. At the beginning of the first hearing, the court announced that because the hearing dealt with "a matter relating to security issues," the proceeding would be closed and sealed. During this hearing, Carol Henderson, Symington's secretary, testified that during 8:15 and 8:30 p.m. the previous evening, while she was dining at her home with John Dowd, Symington's attorney, she had received a telephone call from an unidentified man who had addressed her by name and said, "If Fife goes down, you get $10,000. If he goes free, you die." In addition, Juror No. 114 reported that at approximately 8:15 p.m. the previous evening, she too had received a telephone call from a male stranger who had said, "[E]ither [Symington] will get the death penalty or you'll get the death penalty." She subsequently contacted the police and told them that the voice on the telephone had sounded like Dowd's. However, after the court had assured her that Dowd could not have made the telephone call, she affirmed that the call would not affect her ability to perform as a juror. Finally, Juror No. 105 described the telephone call she had received the previous night, during which an unidentified man addressed her by name and said, "Fife goes free, you get ten grand." She stated that the call would not affect her ability to weigh the evidence in the case. Both jurors received assurances that the investigation of these telephone calls would be deferred until after the jury had completed its deliberations. The court also informed both jurors that it planned to ask in open court whether any juror had encountered difficulties in abiding by the admonitions regarding media coverage or had been contacted by anyone outside the jury. The court told the two jurors that they did not need to respond to this open-court inquiry as the communications they had received had already been investigated, an instruction both jurors duly heeded.

In response to the closure of this hearing, the Press filed a motion that same day for access to the proceeding and for an expedited hearing thereon. The Press argued that the court had failed to issue specific findings justifying closure of the hearing. At the end of the first closed hearing, the district court heard argument on the Press's motion in an open hearing and reiterated its intention to seal the transcript of the closed hearing. In addition, the court asserted that it would close and seal the second hearing addressing the threatening telephone calls. In support of its decision, the district court explained:

The proceeding this morning, and indeed the proceeding that will resume at 1:00 o'clock is a matter that brings security issues to the Court's concern. And it is for that reason that the proceeding is closed and sealed.

The security--the nature of the security interest is what forms the basis and rationale and reasoning for the closure. It is related to the fair administration of the trial and to the processes that are ongoing in the trial. And so in a sense, it is both security issues and the interest that the Court has in assuring a fair and orderly judicial process in this trial.

It is the Court's belief, and therefore its finding that not holding this proceeding that we held this morning and the one that is contemplated for 1:00 o'clock today, if they--if those proceedings were not held in closed session, it is the Court's belief and thus its finding that matters of security and issues relating to the security issues that were brought to the Court's attention this morning could be jeopardized as well as the fair administration of the case and its proceedings that are now ongoing in the absence of closure.

The Court has not been able to determine an alternative for closure.... [W]hen we talk about alternatives, ofttimes that has come up in cases where there might well be differing ways in proceeding, either by sequestering juries or by changing venue or by engaging in other procedures that would safeguard the fundamental interest at stake, but, nonetheless, not require closure.

The court also conceded that it may not have employed the "appropriate techniques" to resolve the issue of the closure of the first hearing before the hearing occurred, in light of Ninth Circuit case law and the First Amendment. Hence, the court pledged that in future, it would always give the media an opportunity to inquire about alternatives to closure of a proceeding before the proceeding actually took place.

On the afternoon of the same day, the court conducted a second closed hearing to investigate the telephone threats. At the beginning of this hearing, the court declared:

This proceeding is closed because it is a matter relating to security and relating to the orderly administration of the trial. And those two issues the Court finds are inextricably interwound and the Court is unable to determine any reasonable alternative to closure and the proceedings of this nature simply don't lend themselves to any of the more traditional alternatives that can generally be used to maintain the openness of the process.

In relevant part, this hearing examined the tape recording of the police's interview with Juror No. 114 and considered the possibility of divulging information to the Press concerning the nature of the hearing. Both the prosecution and the defense agreed that it was sufficient for the court to state that the hearing pertained to a security issue. Similarly, both sides agreed that sequestering the jury would be unnecessary.

During that same afternoon, the Press filed a supplemental motion seeking specific findings about the basis for the court's closure order and requesting the unsealing of the transcript of the closed hearing. On August 25, 1997, the court conducted an open hearing on this motion and took it under submission. On September 4, 1997, a day after the jury's verdict, the Press filed a second supplemental motion repeating its claim that the court had failed to offer "constitutionally adequate findings" to support closure and requesting release of the August 22, 1997 transcript.

On September 5, 1997, the district court issued an order denying the Press's motions. In this order, the court found that "the interest in ensuring the security of individuals associated with this trial" was compelling, and that the sealed proceeding was not the kind "traditionally ... conducted in open fashion." The court also observed that there was a "substantial probability" that this compelling interest would suffer in the absence of closure, "because the steps taken to ensure the security of the individuals associated with the trial could very well be thwarted." According to the court, no alternatives to closure existed "that would adequately protect this compelling interest." Without specifying a date, the court anticipated that at some juncture in the future, unsealing the transcript and minute order of the proceeding might become appropriate.

In response, the Press filed its petition for a writ of mandamus on September 24, 1997. On October 2, 1997, the district court issued a minute order releasing a portion of the August 22, 1997 transcript dealing with an issue distinct from the matter of the juror threats. In a second sealed minute order issued the same day, the court noted:

The Court has been advised that the investigation is ongoing and that it is in a posture that the disclosure of the transcript [of the August 22, 1997 hearings] would constitute a serious risk of compromising the investigation. As a result of the status of the investigation, the transcript remains sealed.

On October 15, 1997, Symington's counsel moved to unseal the August 22, 1997 transcript. He explained that because the media had obtained the police report relating to the juror threats through a public records request, there was no reason to keep the transcript sealed. In addition, while the police report contained Juror No. 114's statement that the threatening caller had sounded like Symington's counsel, the August 22, 1997 hearings had elicited the...