U.S. v. Edwards, VIDEO-INDIAN

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS, Chief Judge, FAIRCHILD, Senior Circuit Judge, and EAST; FAIRCHILD
Citation672 F.2d 1289
Parties8 Media L. Rep. 1145 UNITED STATES of America, Plaintiff, v. Martin K. EDWARDS and Francis B. Kendall, Defendants, In re Applications of, and Mid-America Radio, Inc., Applicants-Appellants.
Decision Date03 March 1982
Docket NumberNos. 80-2718,80-2719,INC,VIDEO-INDIAN

Page 1289

672 F.2d 1289
8 Media L. Rep. 1145
UNITED STATES of America, Plaintiff,
v.
Martin K. EDWARDS and Francis B. Kendall, Defendants,
In re Applications of VIDEO-INDIANA, INC., and Mid-America
Radio, Inc., Applicants-Appellants.
Nos. 80-2718, 80-2719.
United States Court of Appeals,
Seventh Circuit.
Argued June 12, 1981.
Decided March 3, 1982.

Page 1290

Donald G. Sutherland, Indianapolis, Ind., for plaintiff.

Irvin B. Charne, Milwaukee, Wis., amicus.

Before CUMMINGS, Chief Judge, FAIRCHILD, Senior Circuit Judge, and EAST, Senior District Judge. *

FAIRCHILD, Senior Circuit Judge.

This case raises the question of whether the district court erred in refusing to release to the media, for the purpose of copying and broadcasting to the public during the pendency of a criminal trial, an audio recording which had been admitted into evidence and played in open court. We hold that the case is not moot. Even though the broadcasters sought access to the tape contemporaneous with the trial, long since ended, the underlying dispute is of the type "capable of repetition, yet evading review." Considering all of the circumstances, we cannot say that the district court abused its discretion in denying the broadcasters' request. For guidance in future cases, however, we make clear that there is a strong presumption in favor of the common law right of access to judicial records and that permission to inspect, copy, and disseminate should be denied only where actual, as opposed to hypothetical, factors demonstrate that justice so requires.

I. Background

The criminal trial of Martin K. Edwards and Francis B. Kendall attracted considerable attention in the media. Edwards, a state Senator and President Pro Tempore of the Indiana Senate, and Kendall, a private businessman, had been indicted on charges relating to unlawful payments of money in exchange for influencing legislation. 1 During the course of their trial, on November 19, 1980, an audio recording of a telephone conversation between Edwards and one

Page 1291

John L. Cline 2 was admitted into evidence and played to the jury. A day earlier, through channels not clear from the record, full transcripts of that recording had been published in The Indianapolis News and The Indianapolis Star newspapers. Following introduction of the tape, 3 Video-Indiana, Inc., a television broadcasting station, and Mid-America Radio, Inc., a radio station, both of Indianapolis, (collectively, the "Broadcasters"), informally requested permission of the court to copy the audio recording for broadcast to the public. The court took the requests under advisement and suggested that formal applications be filed. The next day, November 20, 1980, the Broadcasters submitted written applications seeking permission to copy, for broadcast contemporaneous with the trial, all video and audio tapes which had been or might be admitted into evidence. 4 On November 21, 1980, the court heard oral argument in support of the requests by counsel for the Broadcasters, and in opposition thereto by counsel for each of the defendants and counsel for the United States. The applications were thereafter denied in an oral decision from the bench.

The court's decision was based on essentially three factors. First, the court expressed concern that mid-trial authorization of access might be viewed as placing a judicial imprimatur upon particular evidence which might be overcome by later testimony, and therefore concluded that pendency of trial was a factor entitled to considerable weight. Second, the court observed that Edwards had yet to stand trial upon several counts of tax evasion which had been severed from the instant charges and that public broadcast of the tape might make it "doubly difficult" to draw a jury for that subsequent proceeding. Despite this potential obstacle, however, the court expressly noted that it was inclined to agree that through proper voir dire examination "nevertheless a jury can be selected ... with a fair and impartial attitude." Finally, the court offered the view that a recent resolution of the Judicial Conference of the United States reaffirming the ban against broadcast of trials was a relevant consideration weighing in favor of denying access to the tape.

Subsequently, the Broadcasters filed an appeal in this court. Because the answering brief of defendants Edwards and Kendall was wholly perfunctory in nature and the Government's brief indicated that it would not oppose release of the tape if, as was likely, the second trial of Edwards was completed before oral argument, we asked Attorney Irvin B. Charne of Milwaukee to file a brief and argue as amicus in support of the trial court's decision. We are grateful for his assistance.

II. Mootness

The relief sought by the Broadcasters in their application to the district court was the release of the tapes during the trial. The amicus argues that since the trial has now ended contemporaneous access to the tapes is impossible and therefore the appeal should be dismissed as moot. 5 We agree with the Broadcasters that the underlying dispute is "capable of repetition, yet evading review," Southern Pacific Terminal

Page 1292

Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), and therefore is not moot. It is reasonably foreseeable that in other criminal trials similar applications for access to tape recordings will be made and will be denied. See Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 426 n.2 (5th Cir. 1981) ("broadcaster's requests for access are continuing and continue to be denied"). It is also likely that in such cases the criminal trials will be of sufficiently short duration that an order denying access will evade appellate review during the period in which contemporaneous access could be granted. Cf. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2821, 65 L.Ed.2d 973 (1980) ("(m)ore often than not ... a closure order 'will evade review ...' "). Thus, while it would be impossible for us to direct the district court to now accord the specific relief requested, mootness does not preclude consideration of the merits. Accord Belo Broadcasting, supra, 654 F.2d at 426 n.2; In Re Application of National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 949 n.1 (2d Cir. 1980) (hereafter "Myers"). 6

For similar reasons, we find inadequate the government's suggestion that the case be remanded to the district court for reconsideration of the initial request for access in view of the fact that the trial of Edwards and Kendall has ended and the separate tax evasion charges against Edwards resolved. 7 While a different decision might now be reached based on these changed circumstances, such a procedure would avoid the basic question of whether the Broadcasters were entitled to have access to the tape during the course of the trial. It is that issue we believe must be addressed. Accordingly, we turn to the merits.

III. The Common Law Right of Access to Judicial Records

The Broadcasters do not argue that they were constitutionally entitled to inspect, copy, or broadcast the tape which had been admitted into evidence and played to the jury. Rather, they base their claim upon the common law right of access to judicial records.

A.

The keystone for our analysis is the Supreme Court's decision in Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). There, during the trial of several of ex-President Nixon's former advisers, certain tape recordings were played to the jury in open court and reels of the tapes were admitted into evidence. Transcripts of the tapes furnished to reporters were widely reprinted in the press. At the close of the trial at which four of the defendants were convicted, and following an earlier unsuccessful request to copy, broadcast, and sell to the public portions of the tapes, certain broadcasters petitioned for immediate access to the recordings. The district court denied permission, United States v. Mitchell, 397 F.Supp. 186 (D.D.C.1974), but the court of appeals reversed, 551 F.2d 1252 (D.C.Cir.1976). The Supreme Court then reversed again in favor of nonaccess. Justice Powell wrote for the majority:

"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents....

"It is uncontested, however, that the right to inspect and copy judicial records

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is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes....

"... (T)he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case."

435 U.S. at 597-599, 98 S.Ct. at 1312-1313 (footnotes omitted).

While recognizing that, "It is difficult to distill from the relatively few judicial decisions ... all the factors to be weighed in determining whether access is appropriate," id. at 598-599, 98 S.Ct. at 1312, the Court suggested that it would be proper to consider such matters as whether the information would be " 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a ......

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49 practice notes
  • Associated Press, In re, Nos. 98-1267
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 7 décembre 1998
    ...for doing so." Id. (citing In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1313 n. 17 (7th Cir.1984); United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir.1982); In re State-Record Co., 917 F.2d 124 (4th Cir.1990)). As in Grove Fresh, we believe that in this case the appropriate c......
  • U.S. v. Beckham, POST-NEWSWEEK
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 juin 1986
    ...v. FTC, 710 F.2d 1165, 1179 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984); United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir.1982); In re Application of National Broadcasting Co. (Jenrette), 653 F.2d 609, 612-13 (D.C.Cir.1981); In re Application of ......
  • Carlson v. United States, No. 15–2972
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 15 septembre 2016
    ...pre-sentence report to grand jury materials). To hold otherwise would raise First Amendment concerns. Cf. United States v. Edwards , 672 F.2d 1289, 1294 (7th Cir. 1982) (recognizing that the “common law right” of public access to court records “supports and furthers many of the same interes......
  • U.S. v. Corbitt, No. 88-2746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 juin 1989
    ...... [the] production [of the particular document in question]." Id. at 598, 602-03, 98 S.Ct. at 1312, 1314-15; United States v. Edwards, 672 F.2d 1289, 1293 (7th While this court has recognized that the common law right of access creates a "strong presumption" in favor of public access to m......
  • Request a trial to view additional results
49 cases
  • Associated Press, In re, Nos. 98-1267
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 7 décembre 1998
    ...for doing so." Id. (citing In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1313 n. 17 (7th Cir.1984); United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir.1982); In re State-Record Co., 917 F.2d 124 (4th Cir.1990)). As in Grove Fresh, we believe that in this case the appropriate c......
  • U.S. v. Beckham, POST-NEWSWEEK
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 juin 1986
    ...v. FTC, 710 F.2d 1165, 1179 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984); United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir.1982); In re Application of National Broadcasting Co. (Jenrette), 653 F.2d 609, 612-13 (D.C.Cir.1981); In re Application of ......
  • Carlson v. United States, No. 15–2972
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 15 septembre 2016
    ...pre-sentence report to grand jury materials). To hold otherwise would raise First Amendment concerns. Cf. United States v. Edwards , 672 F.2d 1289, 1294 (7th Cir. 1982) (recognizing that the “common law right” of public access to court records “supports and furthers many of the same interes......
  • U.S. v. Corbitt, No. 88-2746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 juin 1989
    ...... [the] production [of the particular document in question]." Id. at 598, 602-03, 98 S.Ct. at 1312, 1314-15; United States v. Edwards, 672 F.2d 1289, 1293 (7th While this court has recognized that the common law right of access creates a "strong presumption" in favor of public access to m......
  • Request a trial to view additional results

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