Post-Newsweek Stations, Michigan, Inc., In re

Decision Date13 December 1983
Docket NumberPOST-NEWSWEEK,No. 83-1694,83-1694
Citation722 F.2d 325
Parties10 Media L. Rep. 1087 In reSTATIONS, MICHIGAN, INC.; Storer Broadcasting Company; American Broadcasting Companies, Inc.; and Detroit Free Press, Inc., Petitioners.
CourtU.S. Court of Appeals — Sixth Circuit

Richard E. Rassel, James E. Stewart, Detroit, Mich., for Detroit News.

Leonard R. Gilman, U.S. Atty., Maura D. Corrigan, Asst. U.S. Atty., argued, Detroit, Mich., for U.S.

Peter J. Kelley, Ann Arbor, Mich., for Coleman A. Young.

Neil H. Fink, Detroit, Mich., for Beckman, Bowers, Ferantino, Cusenza and Valentini.

Donald Pailen, Abigail Elias, Detroit, Mich., for City of Detroit.

David Griem, argued, Detroit, Mich., for Carson.

John J. Ronayne, III, argued, Chester E. Kasiborski, Detroit, Mich., for appellant.

Before ENGEL, MARTIN and WELLFORD, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

In this emergency appeal, heard on October 13, 1983, the petitioners sought a writ of mandamus compelling either a decision from the district court on their application for immediate access to inspect and copy audio- and videotapes admitted into evidence or used in an ongoing criminal trial, or a stay in the criminal proceedings until a decision was rendered. In the alternative, the media petitioners requested an order granting them contemporaneous access to inspect and copy the audio- and videotapes. In an oral decision from the bench, this court denied the media's petition for a writ of mandamus and refused to issue an order granting them contemporaneous access to the tapes.

The underlying criminal prosecution in this case accuses an official of the City of Detroit and four others of conspiring to defraud the City of Detroit. Prior to the start of the trial, it was public knowledge that the government was planning to rely on audio- and videotapes in its presentation to the jury. On August 17, 1983, the district court heard defense motions to suppress the tape recordings. Although present in the courtroom, the press did not present the district court with an application to copy the tape recordings.

The trial began on September 26, 1983. Arrangements were made to guarantee the press unfettered access to the trial. Front-row seats were reserved for the press; the tapes were played in a manner which permitted public viewing; and all evidentiary rulings were made in open court. The media petitioners first intervened to challenge the closure of jury voir dire. Initially, the voir dire had been conducted in chambers because of excessive pretrial publicity. The defendants, however, withdrew their request to close the voir dire, and the process was moved to the jury room which permitted public viewing. Inexplicably, questions during voir dire did not address the possibility of jury sequestration, despite the extensive pretrial media attention surrounding the case. On September 29, a jury was impaneled.

Testimony in the case began on October 3. On October 5, the district court adjourned the proceedings until October 11 to consider several evidentiary issues. Throughout this time the district court received no formal application from the media for access to the tapes, even though on October 3 it had decided that certain portions of the tapes would be admitted into evidence. 1

On October 7, the district court received the petitioners' formal application for contemporaneous access to the tapes admitted into evidence or used in the trial. On the same day, arguments were heard on the petitioners' application. Realizing that a hurried determination on the petitioners' application might prejudice the fair-trial rights of the defendants, while at the same time recognizing the importance of the petitioners' claim, the district court decided that additional time was needed to consider the petitioners' application. Unaware that each of the defendants had joined in replying to the petitioners' application, the court collectively granted all the defendants ten days to respond. It is clear, however, that the district court did not rule on the merits of the petitioners' claim of immediate access.

In their brief the petitioners argue they have a right to contemporaneously inspect and copy the documentary and non-documentary evidence admitted in the proceedings below. They assert that any delay in acting on their claim violates their constitutional and common law rights of access to judicial records.

The district court, on the other hand, states in its response filed in this court that prior to the petitioner's October 7 application, it never considered the issue of contemporaneous access to the tapes. The district court faults the petitioners' lack of timeliness in presenting their application. The district court notes that because it was unaware of the petitioners' desire for contemporaneous access, it did not consider the possibility of sequestering the jury. Now, it contends, sequestration is impossible because the trial is expected to be quite lengthy and the jurors were not warned that they might be sequestered. The district court states the "emotional and financial cost of ... a lengthy sequestration is unjustified."

The district court also contends that contemporaneous access is inappropriate because "the history of this case [indicates] that a copying of the tapes would transform this already highly publicized trial into an entertaining carnival." The court states that the "defendants' right to a fair trial would be seriously jeopardized if the tapes were made available to the media at the same time that they were introduced into trial." In its view, cautionary instructions to an unsequestered jury would be insufficient to protect the defendants' constitutional right to a fair trial.

In an oral decision from the bench, this court denied the petitioners' request for a writ of mandamus and refused to issue an order granting them immediate access to the tapes in question. We did not, however, reach the merits of petitioners' constitutional and common law claims because we found the controversy between the petitioners and the district court insufficiently developed to merit adjudication.

It is settled doctrine that we do not render advisory opinions. United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 746 (1961). Questions of law "which remain unfocused because they are not pressed before the [c]ourt with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests" are inappropriate for judicial decision-making. Id. at 157, 81 S.Ct. at 554. Furthermore, in constitutional jurisprudence it is particularly important to avoid making decisions in cases not ripe for adjudication. Globe Newspaper Co. v. Superior Court, etc., 457 U.S. 596, 102 S.Ct. 2613, 2628, 73 L.Ed.2d 248 (1982) (Stevens, J., dissenting); Cf. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960).

28 U.S.C. Sec. 1291 gives this court the authority to hear "appeals from all final decisions of the district courts." (emphasis added) "The effect of the statute is to disallow appeal from a decision which is tentative, informal or incomplete. Appeal gives the [court of appeals] a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949); Southern Methodist Univ. Ass'n v. Wynne & Jaffe, 599 F.2d 707, 711 (5th Cir.1979). At the time this court heard oral argument in this case, it was presented with a controversy which was open and inconclusive. The district court had issued no order or determination either granting or denying the petitioners' application for contemporaneous access to the tapes. The only determination made by the district court was its...

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