Seattle Times Co. v. U.S. Dist. Court for Western Dist. of Washington

• Decision Date: 13 May 1988
• Docket Number: Nos. 88-7038,88-7046,s. 88-7038
• Citation: 845 F.2d 1513
• Parties: , 56 USLW 2672, 15 Media L. Rep. 1273 SEATTLE TIMES COMPANY, Petitioner, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF WASHINGTON, Respondent, United States of America and Stella Nickell, Real Parties in Interest. HEARST CORPORATION, Petitioner, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF WASHINGTON, Respondent, United States of America and Stella Nickell, Real Parties in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1513

845 F.2d 1513

56 USLW 2647, 56 USLW 2672, 15 Media

L. Rep. 1273

SEATTLE TIMES COMPANY, Petitioner, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF

WASHINGTON, Respondent,

United States of America and Stella Nickell, Real Parties in

Interest.

HEARST CORPORATION, Petitioner, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF

WASHINGTON, Respondent,

United States of America and Stella Nickell, Real Parties in Interest.

Nos. 88-7038, 88-7046.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 17, 1988.

Unpublished Order Feb. 29, 1988.

Decided April 20, 1988.

As Amended May 13, 1988.

P. Cameron DeVore, Davis, Wright & Jones, Seattle, Wash., for petitioner Seattle Times Co.

David Utevsky, Seattle, Wash. for petitioner Hearst Corp.

Thomas W. Hillier, II, Federal Public Defender, Seattle, Wash., for real party in interest Stella Nickell.

Joanne Y. Maida, Asst. U.S. Atty., Seattle, Wash., for real party in interest U.S.

Petition for Writ of Mandamus to United States District Court for the Western District of Washington.

Before KOELSCH, REINHARDT and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

The Seattle Times Company ("Times") and the Hearst Corporation ("Hearst") petition for a writ of mandamus to obtain access to four documents filed under seal in pretrial criminal proceedings. Stella Nickell and the United States are real parties in interest in opposition to the writ. We have expedited the disposition of this case. We issued an order February 29, 1988 granting the requested relief to be followed by this statement of our reasons.

I. FACTS AND PROCEEDINGS BELOW

Stella Nickell was indicted on December 9, 1987 on five counts of violating 18 U.S.C. Sec. 1365, a product tampering statute. The grand jury charged that she implanted potassium cyanide in Excedrin capsules, resulting in the death of her husband and of a woman unknown to her.

In May, 1987, while the case was under investigation, Nickell applied for court-appointed counsel. In support of her application, she filed a financial affidavit describing her income, property, and other financial details. United States Magistrate John L. Weinberg appointed the Federal Public Defender to represent Nickell and ordered the affidavit sealed. A second financial affidavit, dated December 9, 1987, was also sealed.

On December 9, 1987, United States Magistrate Philip K. Sweigert issued a bench warrant for Nickell and gave notice that the United States Attorney's office intended to request a pretrial detention hearing. The government and the defendant submitted briefs on the detention issue, each moving for leave to file the briefs under seal. Magistrate Sweigert entered orders on December 9 and December 11 granting the motions.

The detention hearing was held in open court on December 11, 1987 and Magistrate Sweigert entered a pretrial detention order. The government and Nickell then moved to withdraw the sealed briefs from the file. The Magistrate ordered the briefs returned to the respective parties. Nickell subsequently filed a written, and unsealed, motion to revoke the detention order. The district court denied this motion in a memorandum decision dated December 17, 1987. The district court also ordered the briefs refiled under seal. This court affirmed the detention order on January 8, 1988. On January 7, 1988, the defendant, without objection, moved that the trial be continued to April 18, 1988.

The Seattle Times filed a motion on December 18, 1987 to unseal the sealed portions of the court's file in the Nickell case. Hearst and Tacoma News, Inc. subsequently joined in the motion. The three newspapers, the government, and the defendant submitted briefs and presented oral argument at a hearing on January 11, 1988. The district court denied the motion, noting that presumably the documents would be unsealed at the close of the criminal trial.

The district court issued a supplemental order on February 8, 1988. The court ordered the detention memoranda released in redacted form, excising all references to the facts and evidence specific to this case. The memoranda as released consisted of

essentially legal argument. Based on the defendant's fifth amendment rights, the court declined to release the financial affidavits in any form. Petitioners have made it clear in supplemental briefing and at oral argument that the redacted documents are not satisfactory

The Times (joined by Tacoma News) and Hearst each filed a petition for a writ of mandamus with this court. These petitions have been consolidated for review.

II. JURISDICTION

This court recognizes standing in parties such as Times and Hearst to seek review by petition for writ of mandamus of orders denying them access to judicial proceedings or documents. United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir.1982).

III. STANDARD OF REVIEW

Mandamus relief is appropriate if the petitioner can show the presence of several of the factors set forth in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977). See Sacramento Bee v. United States Dist. Court, 656 F.2d 477, 480-81 (9th Cir.1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2257, 72 L.Ed. 861 (1982). These factors are: 1) the party seeking the writ has no other means, such as a direct appeal, of attaining the desired relief, 2) the petitioner will be damaged in a way not correctable on appeal, 3) the district court's order is clearly erroneous as a matter of law, 4) the order is an oft-repeated error, or manifests a persistent disregard of the federal rules, and 5) the order raises new and important problems, or issues of law of first impression. Bauman, 557 F.2d at 654-55.

We review de novo whether the elements of the mandamus test are satisfied. Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986). Times and Hearst have established the presence of the first and second factors because petitioners lack standing to bring a direct appeal, Sacramento Bee, 656 F.2d at 481, and because they face a serious injury to an important first amendment right. The fifth factor also weighs heavily in favor of issuance of the writ because the issue of press access to pretrial detention hearings and documents is one of first impression in this circuit.

The key factor to be examined is whether "we are firmly convinced that [the] district court has erred in deciding" to seal the four documents. In re Cement Antitrust Litigation (MDL No. 296), 688 F.2d 1297, 1306-07 (9th Cir.1982), aff'd mem. sub nom. Arizona v. United States Dist. Court, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983). We turn now to this question.

IV. ANALYSIS

The first amendment guarantees the public and the press the right to attend criminal trials unless the defendant's right to a fair trial or some other overriding consideration requires closure. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 2619-20, 73 L.Ed.2d 248 (1982); Richmond Newspapers v. Virginia, 448 U.S. 555, 580-81, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980) (plurality opinion). The Supreme Court has extended this right of access to preliminary hearings, as conducted in California, because of the tradition of accessibility and because these hearings are sufficiently like a trial to conclude that public access plays a significant role in their functioning. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 2741-43, 92 L.Ed.2d 1 (1986). The Court has not ruled on whether the right of access extends to pretrial proceedings generally.

This court has gone further and held that in general the public and the press have a qualified first amendment right of access to pretrial hearings and documents. See Associated Press v. United States Dist. Court, 705 F.2d 1143, 1145 (9th Cir.1983); see also Brooklier, 685 F.2d at 1167, 1170 (voir dire, suppression hearings and transcripts of closed proceedings). We have

also held that a common law right of access may extend to documents such as presentence probation reports, provided the requesting party "make[s] some threshold showing that disclosure will serve the ends of justice" and there is no valid countervailing consideration that supports nondisclosure. See United States v. Schlette, 842 F. 2d 1574, 1581, 1582, n. 4 (9th Cir. 1988) (not addressing first amendment issue); see also id. at 1582-83 (discussing CBS, Inc. v. United States Dist. Court, 785 F.2d 823 (9th Cir.1985), which extended right of access to post-trial memorandum filed by government in response to sentence reduction motion under Fed.R.Crim.P. 35). The government argues here that the memoranda submitted by the parties on the detention issue should not be subject to the qualified right of press access. ¹ We have not previously addressed this specific issue

We begin with the presumption that the public and press have a right of access to criminal proceedings and documents. CBS, 765 F.2d at 825. The Supreme Court has articulated two considerations relevant to whether the right of access extends to a particular proceeding. First, the Court has considered whether the place and process has historically been open because " 'a tradition of accessibility implies the favorable judgment of experience.' " Globe Newspaper, 457 U.S. at 605, 102 S.Ct. at 2619 (quoting Richmond Newspapers, 448 U.S. at 589, 100 S.Ct. at 2834 (Brennan, J., concurring)).

Pretrial detention proceedings do not share with criminal trials an unbroken history of public access. Bail is often set in open court at the defendant's first appearance before the magistrate. But commonly the bail determination is made "by the judge when an indictment is returned or by the magistrate when an arrest warrant issues...." United States v. Chagra, 701 F.2d 354, 363 (5th Cir.1983).

This history and the prevalent use of informal procedures should not automatically foreclose a right of access. Pretrial proceedings have grown increasingly important in the modern...