U.S. v. King
| Decision Date | 12 March 1998 |
| Docket Number | Docket No. 98-1072 |
| Parties | 26 Media L. Rep. 1449 UNITED STATES of America, Plaintiff, Daily News, L.P.; Greg Smith; NYP Holdings, Inc.; Al Guart; The New York Times Company, Inc. and Newsday, Inc., Intervenors-Appellants, v. Don KING and Don King Productions, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Slade R. Metcalf, New York City (Melissa Georges, Squadron, Ellenoff, Plesent & Sheinfeld, New York City; Eve Burton, Daily News, New York City; Adam Liptak, The New York Times Company, New York City; Carolyn Schurr, Newsday, Inc., Melville, NY, on the brief), for intervenors-appellants.
Christine H. Chung, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., Laura Grossfield Birger, Baruch Weiss, Asst. U.S. Attys., New York City, on the brief), for the U.S.A.
Peter E. Fleming, New York City (Benard V. Preziosi, Jr., Curtis, Mallet-Prevost, Colt & Mosle, New York City, on the brief), for defendant Don King.
William H. Murphy, Jr., Baltimore, PA., for defendant Don King Productions, Inc.
Before: OAKES, NEWMAN, and CABRANES, Circuit Judges.
This interlocutory appeal concerns a limited closure of proceedings in a criminal trial primarily a denial of press access to transcripts of in camera individual voir dire of prospective jurors until a jury has been impaneled. Intervenors--the companies publishing The Daily News, The New York Post, The New York Times, and Newsday, and a Daily News and a Post reporter--appeal from orders entered on December 27, 1995, and February 5, 1998, by the District Court for the Southern District of New York (Lawrence M. McKenna, Judge ), in connection with jury selection in the impending trial of boxing promoter Don King and his corporation on wire fraud charges, scheduled to begin March 12, 1998. The orders also limit press access to transcripts of voir dire proceedings from King's 1995 trial on the same charges, which ended in a mistrial. We affirm.
King was originally the sole defendant on an indictment charging him with wire fraud offenses arising out of an alleged scheme to defraud an insurance company. Jury selection for King's trial on those charges commenced in September 1995. Voir dire was conducted in the jury room, one prospective juror at a time, with only the District Judge and counsel present. No member of the press sought to be present at voir dire, and the transcripts of these proceedings were sealed, without any contemporaneous press objection. The trial ended on November 17, 1995, when the jury deadlocked and the District Court declared a mistrial.
On November 27, 1995, some of the current intervenors applied for an order unsealing transcripts of (i) the voir dire questioning of prospective jurors, (ii) the parties' exercise of peremptory challenges, and (iii) robing room and sidebar conferences at which evidentiary issues were discussed and ruled on in the course of the first trial. The District Court issued its ruling on the motion on December 27, 1995. See United States v. King, 911 F.Supp. 113 (S.D.N.Y.1995). With respect to the voir dire transcripts, the District Court denied the application, concluding that
there is a substantial probability that the release at this time of transcripts of the voir dire of prospective jurors for the first trial will reduce the candor of prospective jurors during voir dire for the second trial, and that such a reduction of candor on the part of prospective jurors will affect the fairness of the second trial in that the ability of the Court and counsel to uncover attitudes of prospective jurors which would be the basis for challenges will be impeded.
Id. at 118. With respect to the peremptory challenge transcripts, the Court ordered the Government and King to submit copies of the sealed transcripts together with any suggestions for redactions, and announced that the transcripts (redacted to the extent necessary) would be released "as soon as possible." Id. With respect to the transcripts of sidebar and robing room discussions on evidentiary issues, the Court requested similar submissions from the parties. The Court ruled that those transcripts would be released promptly to the extent they did not "have a substantial probability of jeopardizing the fairness of a second trial," id. at 120, and that the balance of the transcripts would be released at an "appropriate" time thereafter, see id.
The movants filed a notice of appeal from this decision on January 12, 1996. However, the parties agreed by stipulation that, because the District Court's order was not final with respect to two of the three categories of sealed transcripts affected by the ruling, the appeal would be withdrawn without prejudice to reinstatement within 30 days of the District Court's decision with respect to the release of the peremptory challenge and evidentiary issue transcripts.
The District Court issued no further ruling on the matter in the following two years. Counsel for The Daily News has represented that Smith called Judge McKenna's chambers "on numerous occasions" during this time to "inquire" about the status of the motion, see Reply Brief for Intervenors-Appellants at 19 n.13, but the press made no application for relief to either the District Court or this Court concerning the delay nor sought for two years to perfect an appeal from the portion of the ruling that concerned the voir dire transcript.
Meanwhile, the Government sought and obtained a superseding indictment charging both King and his wholly owned corporation, Don King Productions, Inc. ("DKP"), with the wire fraud offenses. 1 On October 6, 1997, King and DKP moved to close the voir dire of prospective jurors for the retrial. The District Court commendably ordered the motion served on press representatives and notice of the motion published in The New York Law Journal. The intervenors and the Government opposed the motion. While that motion was sub judice, the District Court issued an order releasing redacted transcripts reflecting the exercise of peremptory challenges in connection with the first trial and subsequently issued an order releasing redacted transcripts of the side bar and robing room conferences from that trial. See United States v. King, No. 94 Cr. 455, 1998 WL 67679 (S.D.N.Y. Feb. 18, 1998). The intervenors have not appealed these rulings.
On February 5, 1998, between the two rulings that released previously sealed materials from the 1995 trial, the District Court issued a ruling limiting press access to the jury voir dire proceedings in the impending second trial and implicitly maintained the sealing of the jury voir dire proceedings from the first trial. See United States v. King, No. 94 Cr. 455, 1998 WL 50221 (S.D.N.Y. Feb. 5, 1998) ("King voir dire II "). Since this appeal ultimately turns on whether Judge McKenna's ruling contains supported findings that sufficiently justify the limitations on press access that he has imposed, we set forth the principal elements of his analysis.
The District Court made several findings. The ultimate findings, reconfirming what the Judge had concluded immediately after the first trial and in anticipation of a retrial, were (1) "that candor on the part of prospective jurors is of particularly great importance in this case," and (2) "that, absent a degree of juror privacy, such candor is likely to be restricted." Id. at * 2. Explaining the second point, Judge McKenna wrote, "Prospective jurors, if made aware that their views will be publicly disseminated in the next day's newspapers or radio or television broadcasts, will be under pressure not to express unpopular opinions relevant to their choice as trial jurors." Id.
The basis for the Judge's apprehension that the candor of prospective jurors would likely be inhibited was supported by several subsidiary findings. First, he noted that King is "an extremely controversial person," id. at * 6, a fact abundantly supported by the record. Second, he found that King has been "the subject of a very substantial amount of publicity, a large proportion of which is negative...." Id. This finding too is abundantly supported by the record. Two examples convey the unfortunate type of press excess that prompted the District Court's concern. First, The New York Post, reporting that King's first trial had ended inconclusively because the jurors were deadlocked, used the headline, "Move over John Gotti, there's a new 'Teflon Don,' " comparing King to the convicted head of a major crime family who had won earlier acquittals. New York Post (Nov. 18, 1995). Second, when the transcripts of the peremptory challenge proceedings from the first trial were recently released, The Daily News, reporting that King's defense counsel had made a traditional Batson challenge to what it alleged was the Government's pattern of striking Black jurors, used the inflammatory headline "Don King used race card, data show." Daily News (Feb. 1, 1998). 2
The Court then found, based on its experience from the first trial jury voir dire, that "a number of prospective jurors for the forthcoming trial will have strong views about King." King voir dire II at * 6. The Court additionally found that "[t]he problem created by publicity has been exacerbated by the recent (November 1997) HBO drama about King, which portrays him in a very negative way." Id. The publicity for the HBO program suggests that King might be a "Villain" or a "Devil." The HBO program has aired repeatedly since its initial telecast, as recently as February 18, 1998.
Then, amplifying his initial point concerning juror candor, Judge McKenna stated that "full and frank answers are of particular importance in the present case because of the widespread publicity" concerning King, and that "[k]nowledge on the part of prospective jurors that their answers on voir dire will be reported in the press 'may so inhibit or...
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