U.S. v. Edwards

• Decision Date: 31 July 1987
• Docket Number: 86-3495,Nos. 86-3298,s. 86-3298
• Citation: 823 F.2d 111
• Parties: 14 Media L. Rep. 1399 UNITED STATES of America, Plaintiff, v. Edwin W. EDWARDS, et al., Defendants-Appellees, v. TIMES PICAYUNE PUBLISHING CORPORATION, and Gannett News Services, Inc., et al., Movants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 111

823 F.2d 111

14 Media L. Rep. 1399

UNITED STATES of America, Plaintiff, v. Edwin W. EDWARDS, et al., Defendants-Appellees, v. TIMES PICAYUNE PUBLISHING CORPORATION, and Gannett News

Services, Inc., et al., Movants-Appellants.

Nos. 86-3298, 86-3495.

United States Court of Appeals Fifth Circuit.

July 31, 1987.

Rehearing and Rehearing En Banc Denied Aug. 31, 1987.

Jack M. Weiss, Mary Louise Strong, New Orleans, La., Lloyd J. Lunceford, Baton Rouge, La., for movants-appellants.

Marcel Livaudais, U.S. Dist. Judge, John Volz, U.S. Atty., New Orleans, La., for defendants-appellees.

Camille Gravel, Jr., Baton Rouge, La., for Edwards.

John Martzell, New Orleans, La., for Marion Edwards.

Risley Triche, Napoleonville, La., Joseph LaSage, Shreveport, La., for Mijalis.

Richard T. Simmons, Jr., Metairie, La., for Wyllie.

Michael Fawer, New Orleans, La., for Brooks.

Lewis O. Unglesby, Baton Rouge, La., for Isbell.

William Jeffress, Washington, D.C., Dennis R. Bagneris, New Orleans, La., for Falgout.

Thomas Rutter, Lafayette, La., for Segura.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WRIGHT, ^* GEE, and JOLLY, Circuit Judges.

GEE, Circuit Judge:

In today's case we find no first amendment violation in the closure of proceedings in which impaneled jurors were questioned about potential misconduct. We do conclude that the first amendment guarantees the public and press a qualified right of access to the record of such proceedings. Concerning permissible restrictions on this right of access, we find no constitutional infirmity in the trial court's orders declining to release transcripts of the closed proceedings during trial and his order permanently sealing portions of the record containing jurors' names and portions concerning issues traditionally discussed in bench conferences.

Facts

The appellants are three news organizations, the Times-Picayune Publishing Corporation, Gannett News Service, Inc., Capital City Press, and several of their reporters (referred to collectively as Times-Picayune). The adverse parties are the defendants named in the underlying action.

The press challenges proceedings and orders that arose during the second trial of Edwin Edwards and others for alleged racketeering and bribery. The first trial, a two and one-half month affair that generated much publicity, ended in a mistrial when the unsequestered jury was unable to reach a unanimous decision. In the second trial, the government moved that the jury be sequestered to protect it from "bias from outside influences." Besides the expected publicity, the first trial was tainted by rumors that jurors had been bribed. ¹ The court ordered that the jury be sequestered in the second trial.

Nine days into the trial the marshal reported that juror C had informed him as follows: juror B had remarked to juror C, "Did you know the last jury got paid for voting acquittal." The court and counsel conferred on record in chambers about how to proceed. The judge, the prosecutor, and two of the defense counsel questioned each juror individually in chambers, beginning with B and C. Juror C reaffirmed the original report; Juror B flatly denied it, later offering the substance of a conversation between the two jurors that may have been misconstrued by Juror C. During the course of these inquiries, the government suggested that they proceed in open court. The judge, urged by defense counsel, decided to continue informally in chambers, in order to encourage candor and to avoid intimidating the jurors. At the end of the proceedings, which lasted about two hours, motions to recuse were discussed. The judge determined that none of the jurors would be excused.

The press quickly filed an objection to this nondisclosure and to the lack of a preclosure hearing. Several hours later, without a hearing, the court ordered the record sealed and prohibited defense counsel and the prosecutor from making public comments about the issue. He explained only that the court had received a report that one juror had discussed "an aspect of the previous trial," and that motions to recuse jurors had been made and denied. He reasoned that nondisclosure was necessary "to preserve the impartiality of the jury," noting that "there is a possibility, however slight," that specifics would reach the jury. He cited an incident where marshals had already failed to cut out a small newspaper article in papers they had given to the sequestered jury.

Several days later, juror X reported to the matron that juror Y had confided that every time the jury was dismissed one of the defendants smiled and brought an envelope to Y's attention; Juror Y states he is extremely nervous about this but says he couldn't help out for less than $5,000.

An in camera conference similar to the first one ensued, followed by questioning of jurors X and Y in chambers. Over the objections of the "offending" defendant's attorney, the court denied a motion to recuse the jurors involved, characterizing the event as a "tempest in a teapot, a joke." The court issued an order, describing the incident as one in which a juror relayed that "a fellow juror commented about the actions of one of the defendants in the courtroom." The order states that after questioning of the jurors' motions to recuse were denied, concluding that the juror's comment was of a "joking nature." The transcript was sealed because of the "possibility of specifics reaching the jury given the circumstances surrounding sequestration." The order goes on to discuss the necessity of permitting some public activities for jurors during a lengthy sequestration.

The jury returned a verdict of not guilty as to all defendants. Shortly thereafter the Times-Picayune filed a motion seeking full and immediate access to the sealed record. Some two weeks later, after receiving opposition and reply motions, the district judge issued a final order. ² He released redacted transcripts from which he had eliminated jurors' names, portions that included "comments made by counsel which are not part of the arguments to excuse," parts dealing with "procedural matters," and portions that "if released would be unnecessarily embarrassing to the jurors involved." He lifted the prohibition on public comment, except as to those matters remaining under seal.

Times-Picayune raises a first amendment challenge to 1) the closure of the proceedings 2) the midtrial orders sealing the record and imposing a ban on public comment about the proceedings during the trial 3) the lack of a hearing for the press before closure and before the court issued its midtrial orders, and 4) the post-trial order that permanently seals portions of the record, notably jurors' names. The defendant-appellees assert that neither the court's actions nor its orders violate the first amendment.

The Law

We have jurisdiction under 28 U.S.C. Sec. 1291. Insofar as any issue might be considered moot, the Supreme Court has determined that trial closure issues fall within that category of disputes that are "capable of repetition, yet evading review." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980); see also United States v. Gurney, 558 F.2d 1202, 1207 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978).

Some background is helpful in following the parties' arguments. In Richmond Newspapers, Inc., 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court recognized on behalf of the public and press a qualified first amendment right of access to criminal trials. Then in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the Court declared unconstitutional a Massachusetts law mandating closure of trials concerning sex offenses against minors, requiring instead a case-by-case approach to justifying closure. In Press-Enterprise Co. v. Superior Court of Cal. (Press I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), the Court held that the closure of all but three days of a six-week voir dire proceeding violated the first amendment. Press II followed. Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. ----, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). The proceeding at issue was a preliminary hearing, a procedure under the California penal code designed to determine whether there is probable cause to bind the defendant over for trial. That highly publicized case involved a nurse accused of killing patients with massive doses of a heart drug. The preliminary hearing took 41 days; only the prosecution presented evidence. The district court closed the proceedings and refused to release transcripts based on "a reasonable likelihood that release might prejudice the defendant's right to a fair and impartial trial." Id. at ----, 106 S.Ct. at 2739, 92 L.Ed.2d at 8. The Supreme Court held that the first amendment right of access to criminal proceedings extends to a preliminary hearing, that total closure of the prolonged hearing was insufficiently justified, and that it was therefore constitutionally infirm.

Following the principles in Richmond, Globe, and Press I, the Court in Press II recapitulated the two "complementary considerations" for determining whether a first amendment right of access attaches to the proceedings at issue: the court must determine (1) "whether the place and the process has historically been open to the press and general public," and (2) "whether public access plays a significant positive role in the functioning of the particular process in question." Id. at ----, 106 S.Ct. at 2740, 92 L.Ed.2d at 10.

Press II reaffirms the guiding principles: that although the first amendment right of access is not absolute, once the right to access attaches the presumption of openness can be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored...