U.S. v. Hernandez

• Decision Date: 18 December 2000
• Docket Number: No. 98-0721-CR.,98-0721-CR.
• Citation: 124 F.Supp.2d 698
• Parties: UNITED STATES of America, Plaintiff, v. Gerardo HERNANDEZ, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

124 F.Supp.2d 698

UNITED STATES of America, Plaintiff, v. Gerardo HERNANDEZ, et al., Defendants.

No. 98-0721-CR.

United States District Court, S.D. Florida.

December 18, 2000.

COPYRIGHT MATERIAL OMITTED

Caroline Heck Miller, AUSA and David Buckner, AUSA, United States Attorney's Office, Miami, FL, John S. Kasternakes, AUSA, United States Attorney's Office, West Palm Beach, FL, for the Government.

Paul A. McKenna, Miami, FL, for Defendant Gerardo Hernandez.

Joaquin Mendez, Federal Public Defender's Office, Miami, FL, for Defendant John Doe No. 3.

William M. Norris, Coconut Grove, FL, for Defendant John Doe No. 2.

Philip Horowitz, Miami, FL, for Defendant Rene Gonzalez.

Jack Blumenfeld, Coral Gables, FL, for Defendant Antonio Guerrero.

Susan April, Holland & Knight, Miami, FL, for Intervenor, Knight Ridder, Inc.

Karen Williams Kammer, Mitrani, Rynor, Adamsky, Macaulay & Zorrilla, Miami, FL, for Intervenor, NBC Subsidiary (WTVJ-TV), LP ("NBC").

ORDER GRANTING EMERGENCY MOTIONS TO INTERVENE FOR ACCESS TO COURT RECORDS AND GRANTING PRESS AND NEWS MEDIA ACCESS TO EXHIBITS RECEIVED INTO EVIDENCE

LENARD, District Judge.

THIS CAUSE is before the Court on the Emergency Motion to Intervene for Access to Court Records, filed December 12, 2000 by Intervenor Knight Ridder, Inc., and the Emergency Motion to Intervene for Access to Judicial Records, filed December 13, 2000 by Intervenor NBC Subsidiary (WTVJ-TV), LP ("NBC"). The Government responded on December 13, 2000 and stated that it has no objection to the Motions. Defendants Ruben Campa and Gerardo Hernandez filed Responses in Opposition to the Motions on December 14, 2000. The Court heard oral argument at a hearing on that same date. Having reviewed the Motions, the Responses, and the record, the Court finds as follows.

I. Introduction

Neither the Government nor Defendants object to Intervenors' standing to request the relief sought within their Motions. Accordingly, the Court finds that Intervenors have standing "to seek access in suits to which [they are] not a party." Newman v. Graddick, 696 F.2d 796, 800 (11th Cir. 1983) (citations omitted).

Intervenors, representing members of the press and news media, seek access to "any material that is either prepared by the Court, relied on by the Court, used by the Court, whether or not it's filed in the Court file, admitted into evidence or shown to the jury," all of which Intervenors consider "judicial record." (Tr. Hr'g of 12/14/00 at 16.) Among the items sought are documents, photographs, and at least "3,000 pages of transcripts that have been prepared by the Government or acting for the Government in connection with computer disks that were seized from various persons, homes or other places of business and that they have been put into some sort of binders and multiple copies have been made." (Id. at 11.) Intervenors argue that they have a common law right to access such evidence, and that the Court may not limit that right in the absence of a compelling interest.

Asserting their Sixth Amendment right to a fair trial, however, Defendants Campa and Hernandez object to any access other than that available during a public trial or, in the alternative, urge the Court to provide the press and news media with access only to evidence, which counsel has published to the jury. Defendants contend that the dissemination of evidence, admitted into the record prior to its publication to the jury, "will likely generate a new wave of prejudicial publicity against the defendants, and create a climate of public hostility that will undermine the defendants' right to a fair trial." (Def. Campa's Resp. at 2.) According to Defendants, belying this concern is the admission and reporting by the press and news media of the evidence in the Government's case-in-chief, prior to the presentation, if any, of Defendants' evidence. Lastly, Defendants argue that due to the Court's Order That All Parties and Counsel Shall Abide by Local Rule 77.2 of October 2, 1998 counsel is unable to balance the view of the evidence from the press, which Defendants project will be, and has been, "unfairly one-sided." (Id. at 3.)

II. Analysis

A. Press and News Media Have Right to Access Evidence Admitted into Trial Record

Whenever examining the public's right to access public trials, the Eleventh Circuit has "found that `the starting point in such a discussion is the proposition that, absent some exceptional circumstances, trials are public proceedings.'" Brown v. Advantage Engineering, Inc., 960 F.2d 1013, 1015 (11th Cir.1992) (quoting Wilson v. American Motors Corp., 759 F.2d 1568, 1569 (11th Cir.1985)). Access to a criminal trial is unequivocally the public and the press's First Amendment right. United States v. Hastings, 695 F.2d 1278, 1280 (11th Cir.1983) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 2618-19, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 579-80, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality)).¹ As the Eleventh Circuit has opined, "open proceedings may be imperative if the public is to learn about the crucial legal issues that help shape modern society. Informed public opinion is critical to effective self-governance." Newman, 696 F.2d at 801 (citing Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936)).

This First Amendment right, however, is a "right to attend" trial, Hastings, 695 F.2d at 1280, rather than a license allowing cameras or tape-recorders into the courthouse, id.,² or "physical access to courtroom exhibits introduced into evidence at a criminal trial." Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 426-27 (5th Cir.1981)³ (holding that press has no right of physical access to audiotapes which recorded conversations between defendants and FBI agents and which were introduced into evidence at trial where transcripts were provided and other defendants were pending trial).

Even though "the press and public have a First Amendment right of access to criminal trials, ..., the right of access to judicial records is not of constitutional dimension but rather derives from common law." United States v. Noriega, 752 F.Supp. 1037, 1040 (S.D.Fla.1990) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 608-10, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)). The Eleventh Circuit presumes a "common law right to inspect and copy judicial records," United States v. Rosenthal, 763 F.2d 1291, 1292-93 (11th Cir.1985) (finding, where audiotapes from Title III wiretap were played in open court and admitted into evidence, no legitimate reason existed to bar press's access to tapes) (citing Warner Communications, Inc., 435 U.S. at 597, 98 S.Ct. 1306), while noting that this right "to inspect and copy records is not absolute." Newman, 696 F.2d at 803 (citing Warner Communications, 435 U.S. at 598, 98 S.Ct. 1306). Courts have also protected the press's right to examine exhibits admitted into evidence at trial. See United States v. Posner, 594 F.Supp. 930, 935 (S.D.Fla. 1984) (allowing press access to entirety of defendant's tax returns, though only portions of them were "offered into evidence").⁴

As this Court has explained, "in contrast to the compelling justification required for closure of criminal trials, ..., the trial court has broad latitude where only the common-law right of access to court records is implicated." Noriega, 752 F.Supp. at 1040 (citation omitted). Courts may impose reasonable time, place, and manner restrictions on the press's right to access judicial records. Belo Broadcasting, 654 F.2d at 428 ("Just as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic, ... so may a trial judge in the interest of the fair administration of justice, impose reasonable limitations on access to a trial.") (quoting Richmond Newspapers, Inc., 448 U.S. at 581 n. 18, 100 S.Ct. 2814 (plurality) (citation omitted)). Courts need not "measure requests for access to evidence only against the `most compelling circumstances,'" Belo Broadcasting, 654 F.2d at 434, as the press's access "may interfere with the administration of justice and hence may have to be curtailed." Newman, 696 F.2d at 803 (citing Belo Broadcasting Corp., 654 F.2d at 423 (finding broadcasting of tapes would prejudice "yet-to-be-tried" co-defendant, while noting "several circumstances in which `the common-law right of inspection has bowed before the power of the court to insure that its records' are not used as `vehicle(s) for improper purposes'") (quoting Warner Communications, 435 U.S. at 602, 98 S.Ct. 1306)); see also Rosenthal, 763 F.2d at 1294 (reiterating that "district courts should look to whether the records are sought for such illegitimate purpose as to promote public scandal or gain unfair commercial advantage ... and whether the press has already been permitted substantial access to the contents of the records") (quotation marks omitted) (quoting Newman, 696 F.2d at 796 (citing Warner Communications, 435 U.S. at 598-603 & n. 11, 98 S.Ct. 1306)).

The trial court bears the primary responsibility of ensuring criminal defendants their Sixth Amendment right to a fair trial. This responsibility is at the root of the court's discretionary authority to impose reasonable restrictions on the press's access to the evidence. Noriega, 917 F.2d at 1547-48 ("The right of access to criminal proceedings becomes a highly controversial issue when First Amendment questions must be analyzed in conjunction with competing Sixth Amendment considerations.") (quoting United States v. Gurney, 558 F.2d 1202, 1209 (5th Cir.1977)). The Eleventh Circuit discussed the potential for harm to this right, which sensational media exposure can engender:

"Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the...