U.S. v. Kerley

• Decision Date: 30 January 1985
• Docket Number: No. 84-1026,84-1026
• Citation: 753 F.2d 617
• Parties: 11 Media L. Rep. 1572 UNITED STATES of America, Plaintiff-Appellee, v. Gillam KERLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 617

753 F.2d 617

11 Media L. Rep. 1572

UNITED STATES of America, Plaintiff-Appellee, v. Gillam KERLEY, Defendant-Appellant.

No. 84-1026.

United States Court of Appeals Seventh Circuit.

Argued June 8, 1984.

Decided Jan. 30, 1985.

Thomas D. Sykes, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.

Gillam Kerley, pro se.

Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

Defendant-Appellant Gillam Kerley was indicted on September 8, 1982, for allegedly failing to register for the draft as required. Kerley filed a pre-trial motion requesting permission to photograph, record and broadcast the in-court proceedings in his case. Apparently, Kerley wished to record the trial on video-tape. Magistrate Gansner held that Rule 53 of the Federal Rules of Criminal Procedure, which bans cameras in the courtroom, allowed him no discretion and, therefore, denied the motion. Kerley filed an appeal to this court requesting review of the magistrate's order. We dismissed this first appeal for lack of jurisdiction. Kerley then appealed the magistrate's order to the district court in accordance with 28 U.S.C. Sec. 636(b)(1)(A). Judge Doyle entered an order denying defendant's motion for reconsideration of the magistrate's ruling, and Kerley, acting pro se, now appeals the ruling of the district court.

This appeal presents these three issues: (1) whether this court has jurisdiction over the appeal; (2) whether Rule 53 denies a judge discretion to permit photographing and broadcasting of courtroom proceedings; and (3) if so, whether Rule 53 violates appellant's first, fifth or sixth amendment rights. For the reasons which follow, we find appellate jurisdiction proper under 28 U.S.C. Sec. 1291, and we affirm the district court's denial of Kerley's request. ¹

I. Appellate Jurisdiction

The government argues that "the issue before the court is not applicable [sic] under Title 28 U.S.C. Section 1291." Brief for the United States at 2. We interpret this as a challenge to our appellate jurisdiction. We find, primarily because the first amendment rights Kerley asserts would be lost if this appeal were postponed until after trial, that we have jurisdiction here under the collateral order doctrine expounded in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Except in very narrow classes of cases, only orders resulting in the termination of proceedings in the district court are appealable to the courts of appeals. However, the courts have recognized that some orders, although not technically final judgments, may be "final decisions" within the meaning of 28 U.S.C. Sec. 1291. ² An order is appealable, even though it is interlocutory, if it meets the following test:

The order (1) must be conclusive; (2) must be collateral; and (3) must "involve an important right which would be 'lost, probably irreparably,' if review had to await final judgment."

United States v. Dorfman, 690 F.2d 1217, 1222 (7th Cir.1982) (quoting Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977)). See also In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1307 (7th Cir.1984); In re UNR Industries, Inc., 725 F.2d 1111, 1116-18 (7th Cir.1984).

The district court has conclusively determined that Kerley cannot videotape his trial. The United States argues in its brief, however, that the issue whether Kerley has a right to videotape and broadcast his trial is not collateral to the issue whether he has violated the Military Selective Service Act. This contention must fail. The government has not pointed to any connection between Kerley's asserted first amendment rights and the merits of the criminal charges pending against him, and we cannot imagine any such connection. This court has repeatedly held that issues involving access to court proceedings or to records are separable from and collateral to the merits of the underlying litigation. See, e.g., In re Continental Illinois Securities Litigation, 732 F.2d at 1307; United States v. Dorfman, 690 F.2d 1230, 1231-33 (7th Cir.1982).

The government also argues that no important issues are raised by this appeal with respect to which errors cannot be corrected by ordering a new trial if Kerley is convicted. To some extent this argument is correct as to the fifth and sixth amendment rights asserted. If Kerley were denied a fair trial or a public trial, we could order a new trial on appeal from a conviction. However, the first amendment right to record and broadcast this trial would be irretrievably lost if review were postponed. Further, we are not prepared to hold that these first amendment rights are unimportant. We are extremely reluctant to attempt to judge the importance of asserted first amendment rights as they relate to judicial proceedings. And we note that this court has often held that such rights are important enough to justify interlocutory appeals. See In re Continental Illinois Securities Litigation, supra; United States v. Dorfman, 690 F.2d at 1231-32; United States v. Edwards, 672 F.2d 1289 (7th Cir.1982). See also United States v. Hastings, 695 F.2d 1278, 1280 n. 7 (11th Cir.) (first and sixth amendment request to allow cameras in courtroom appealable under Cohen doctrine), cert. denied, 461 U.S. 931, 103 S.Ct. 2094, 77 L.Ed.2d 303 (1983).

As noted, certain aspects of Kerley's fifth and sixth amendment rights, standing alone, may not be separable from the merits of the underlying criminal charge and may not present issues incapable of resolution after trial. In addition, violations of the fifth amendment right to a fair trial and of the sixth amendment right to a public trial (insofar as this right relates to fairness) are usually not ascertainable until after the trial has taken place. Therefore, we rely primarily on the first amendment rights asserted to find that the order in this case is collateral. However, judicial economy and common sense dictate that we also address at this time the question whether any cognizable fifth or sixth amendment violations are inherent in the circumstances because, if such violations are already apparent, we might be able to correct them before this trial and thereby remove the need for a second trial.

II. The Merits

A. Judicial Discretion Under Rule 53

Kerley argues that the district court has discretion to determine whether the broadcasting and televising of court proceedings should be permitted in individual cases. He asserts that Rule 53 is not an absolute ban on cameras in the courtroom. However, this interpretation flatly contradicts the plain language of the rule. Rule 53 provides:

The taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court.

(Emphasis supplied). The words "shall not" can only mean that the rule applies in all situations with no exceptions. See Estes v. Texas, 381 U.S. 532, 581-82, 85 S.Ct. 1628, 1652-53, 14 L.Ed.2d 543 (1965) (Warren, C.J., concurring); Hastings, 695 F.2d at 1279 n. 5.

Kerley proposes, however, that Fed.R.Crim.P. Rule 2's injunction that the Rules of Criminal Procedure "are intended to provide for the just determination of every criminal proceeding" should be construed to grant the district court discretion to consider, on an ad hoc basis, whether cameras in his case would be appropriate. We recognize that the rules must be interpreted with the interests of justice as a paramount consideration. However, we cannot rewrite Rule 53 under the guise of interpretation. ³ Therefore, unless the rule violates Kerley's constitutional rights, we are bound to apply it and to hold that the magistrate and district judge acted properly in denying Kerley's request to record his trial electronically.

B. Constitutional Implications

The Eleventh Circuit in United States v. Hastings, 695 F.2d at 1280-84, rejected the same constitutional claims pressed here. We are unable to add significantly to the Hastings court's analysis and therefore we intend merely to summarize our points of agreement with the Eleventh Circuit.

1. Sixth Amendment

While members of the news media were the appellants in the Hastings case, Hastings himself filed an amicus curiae brief urging, as does Kerley, that his sixth amendment right to a public trial entitled him to record and broadcast his trial. There is no doubt that criminal trials are public events and that weighty concerns about the fairness and integrity of the proceedings require that criminal trials be open to the public. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492-93, 95 S.Ct. 1029, 1044-45, 43 L.Ed.2d 328 (1975). See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), and cases cited therein.

Even though the public will be allowed to attend the proceedings, Kerley asserts that his right to a public trial will be abridged unless he is permitted to electronically record and disseminate the sights and sounds of the proceeding. As the Hastings court noted, 695 F.2d at 1284, however, the Supreme Court has expressly rejected this extension of the sixth amendment, concluding:

Nor does the Sixth Amendment require that the trial--or any part of it--be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.

Nixon v. Warner Communications, Inc., 435 U.S. 589, 610, 98 S.Ct. 1306, 1318, 55 L.Ed.2d 570 (1978). Consequently, appellant's constitutional challenge to Rule 53 cannot be upheld on the basis of any violation of the sixth amendment.

2. First Amendment

The court in Hastings found, and Kerley concedes, that because the restrictions at issue regulate only the time, place and manner of news-gathering activities, we must uphold them if th...