U.S. v. Criden

Decision Date20 April 1981
Docket NumberNo. 80-2622,80-2622
Citation648 F.2d 814
Parties7 Media L. Rep. 1153 UNITED STATES of America v. Howard L. CRIDEN, Harry P. Jannotti, Louis C. Johanson and George X. Schwartz Howard L. Criden, Harry P. Jannotti and George X. Schwartz, Appellees. In re Application of NATIONAL BROADCASTING COMPANY, INC., American Broadcasting Companies, Inc., CBS Inc. and Westinghouse Broadcasting Company, Inc., Appellants.
CourtU.S. Court of Appeals — Third Circuit

J. Marshall Wellborn, Ralph E. Goldberg, Allen Shaklan, Samuel Antar, Harlan Rosenzweig, Floyd Abrams (argued), Robert C. Meade, Devereux Chatillon, Melanie Lawson, Cahill Gordon & Reindel, New York City, Gregory Harvey, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellants.

Richard Ben-Veniste, Washington, D. C., for appellee, Howard L. Criden.

J. Clayton Undercofler, III, Dilworth, Paxson, Kalish & Levy, Edward H. Rubenstone (argued), Philadelphia, Pa., for appellee, Harry P. Jannotti.

Richard A. Sprague, Edward H. Rubenstone (argued), Sprague, Goldberg & Rubenstone, Philadelphia, Pa., for appellee, George X. Schwartz.

Before SEITZ, Chief Judge, and WEIS and SLOVITER, Circuit Judges.


SLOVITER, Circuit Judge.


This is an appeal from the order of the district court denying the application of the television networks "for permission to copy, for the purpose of broadcasting to the public, those video and audio tapes admitted into evidence and played to the jury in open court" during the criminal trial of two members of the Philadelphia City Council arising out of what has become known as the Abscam prosecutions. For the reasons set forth hereafter, we reverse the order of the district court.


Following a series of indictments returned by grand juries sitting in various districts of the country, a number of local, state and federal public officials were tried on charges of bribery and related offenses allegedly committed during the course of an FBI "sting" operation. 1 The trial of defendants, George X. Schwartz, then President of Philadelphia City Council, and Harry P. Jannotti, then a member of the Council, began September 15, 1980 in the Eastern District of Pennsylvania. The court had severed the trials of two co-defendants, Louis C. Johanson, another member of Philadelphia City Council, and Howard L. Criden, a Philadelphia attorney. Both Johanson and Criden had been convicted on similar charges in the United States District Court for the Eastern District of New York.

Prior to commencement of the trial, representatives of the three major television networks, NBC, ABC and CBS, and Westinghouse Broadcasting, Inc., which owns and operates a Philadelphia television and radio station, (hereafter jointly referred to as "broadcasters") requested permission to copy the audio and videotapes introduced into evidence for broadcasting to the public. The court released transcripts of the tapes to the press and public, but denied the broadcasters' request to copy the tapes themselves on September 8, 1980. Among the reasons given for the denial were the pendency of a similar appeal before the Second Circuit in an Abscam case where the district court had ordered that the tapes be released to the press, the pendency of the Schwartz-Jannotti trial, the outstanding indictments of defendants Johanson and Criden, and the existence of substantial due process challenges to the indictments.

The broadcasters renewed their application for the tapes on October 16, 1980, citing several changes in circumstances. First, a unanimous panel of the Second Circuit had affirmed the district court's release of the tapes in the New York Abscam trial, In re Application of National Broadcasting Co. (Myers), 635 F.2d 945 (2d Cir. 1980), and the Supreme Court refused to stay that order, -- U.S. --, 101 S.Ct. 261, 66 L.Ed.2d 125 (1980). Consequently, the tapes introduced at that trial were in fact broadcast to the public. In addition, the Schwartz-Jannotti trial had concluded with guilty verdicts against both defendants although the indictments of Criden and Johanson were still outstanding in this district. After reconsideration of its decision in light of these intervening developments, the district court again denied the broadcasters' application. United States v. Criden, 501 F.Supp. 854 (E.D.Pa.1980). This expedited appeal followed.

The district court, stating that the only issues implicated were those relating to the common law right of access to judicial records, stressed that "the decision as to access to trial evidence is committed to the discretion of the trial court." Id. at 857, citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The court found itself in "total disagreement" with the decisions of the courts of appeals for the District of Columbia and Second Circuit which espoused an "expansive view of the common law right of access." 501 F.Supp. at 857, 859. Compare In re Application of National Broadcasting Co. (Myers ), supra; United States v. Mitchell, 551 F.2d 1252, 1258 (D.C.Cir. 1976), rev'd on other grounds sub nom. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The district court found no support for that view in the Supreme Court's decision in Warner Communications. The district court concluded, however, that "whatever the force of the presumption (in favor of disclosure), I am convinced that the circumstances of the present case are indeed sufficiently extraordinary to require denial of the broadcasters' application." 501 F.Supp. at 859.

The factors referred to by the court in support of denial of the application were "the very great difference between videotape evidence and other forms of evidence," id.; the "penalties not prescribed by the law (which) will be visited upon the accused and, more importantly, upon innocent relatives and friends" by more widespread publicity, id. at 860; and the difficulty which the broadcasting would create in selecting a jury for the then still pending trial of Criden and Johanson and in the event of a retrial of Schwartz and Jannotti. Id. at 861. The court referred to several additional reasons, which were the possibility that its ruling admitting the tapes into evidence was incorrect, the showing in the Schwartz-Jannotti trial of videotapes which would be prejudicial and inadmissible as to Criden, the inclusion of "scurrilous and libelous statements about third parties," and the prohibition imposed on televising courtroom proceedings by resolution of the Judicial Conference of the United States, which the district court analogized to release of videotapes. Id. at 862-64.

On appeal the broadcasters contend that the district court failed to accord proper weight to the presumption of access and that it relied on improper factors in assessing the weight of the defendants' interests against release. Essentially the broadcasters would have us adopt the standard articulated in In re Application of National Broadcasting Co. (Myers), 635 F.2d at 952, that only the "most extraordinary circumstances" could overcome the presumption in favor of release, or, as phrased in United States v. Mitchell, 551 F.2d at 1261, that the party opposing exercise of the common law right of access would have the burden of showing "that justice required denying access to the court records." Additionally, the broadcasters contend that the district court's characterization of publicity as punishment is clearly wrong and that its concerns about the availability of an unbiased jury in the event of a retrial were unwarranted based on the experiences of other courts in securing acceptable juries in highly publicized cases and the effectiveness of voir dire as a means of identifying and excluding unacceptable jurors. With regard to the disputed admissibility of the tapes, the broadcasters contend that the district court was correct in its initial ruling and, alternatively, that defendants' objections to the tapes were essentially premised on privacy interests which have already been decided adversely to them by virtue of the tapes having been publicly shown in court. Release of the audio and videotapes is opposed by Schwartz and Jannotti whose argument tracks the reasoning of Judge Fullam in denying the broadcasters' application. 2

A. Review of Discretion

The broadcasters concede that there is no constitutional right to copy the tapes and that even under the common law right on which they rely, there is no absolute right to release of the tapes. Since all parties agree that release of the tapes is a matter committed to the discretion of the trial court, we must first consider our scope of review.

The mere statement that a decision lies within the discretion of the trial court does little to shed light on its reviewability. It means merely that the decision is uncontrolled by fixed principles or rules of law. See Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L.Rev. 635, 636-43 (1971). See also material compiled in R. Aldisert, The Judicial Process 742-76 (1976). In our judicial system, a wide variety of decisions covering a broad range of subject matters, both procedural and substantive, is left to the discretion of the trial court. The justifications for committing decisions to the discretion of the court are not uniform, and may vary with the specific type of decisions. 3 Although the standard of review in such instances is generally framed as "abuse of discretion," in fact the scope of review will be directly related to the reason why that category or type of decision is committed to the trial court's discretion in the first instance.

Perhaps the most common category of decisions committed to the discretion of the trial court encompasses those situations where the decision depends on first-hand observation or direct contact with the litigation. Only the trial judge has seen...

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