U.S. v. Smith

• Decision Date: 28 March 1986
• Docket Number: 85-5368,Nos. 85-5367,s. 85-5367
• Citation: 787 F.2d 111
• Parties: , 12 Media L. Rep. 1935 UNITED STATES v. William T. SMITH, Jr. and Alan R. Stoneman. Appeal of John DOE.
• Court: U.S. Court of Appeals — Third Circuit

Page 111

787 F.2d 111

54 USLW 2534, 12 Media L. Rep. 1935

UNITED STATES v. William T. SMITH, Jr. and Alan R. Stoneman.

Appeal of John DOE.

Nos. 85-5367, 85-5368.

United States Court of Appeals Third Circuit.

Argued Jan. 7, 1986.

Decided March 28, 1986.

Robert N. de Luca (argued), Michael L. Krancer, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., for appellant.

James J. West, U.S. Atty., Scranton, Pa., David C. Shipman (argued), Asst. U.S. Atty., Harrisburg, Pa., for appellee.

Samuel E. Klein (argued), Katherine Hatton, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for appellee, Philadelphia Newspapers, Inc.

Before ADAMS, SLOVITER and MANSMANN, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. BACKGROUND

Appellant John Doe, a defense witness in the federal criminal trial of William T. Smith and Alan R. Stoneman on charges arising out of the bribery of a high Pennsylvania official, appeals in an effort to prevent disclosure of the transcript of a sidebar conference containing a question to him that was proffered by the prosecution. The United States Attorney sought to impeach Doe during his cross-examination by asking him whether he had been notified that he is a target of the same criminal investigation. App. at 7. The government represented that Doe had received such a target letter, and that is not disputed. Both defendants objected to the question. The district judge stated:

THE COURT: I don't see what it proves, frankly. I do not see what it proves, so I'm going to sustain the objection of the defense.

App. at 8.

Later that day, the defendants requested in a second sidebar conference that the transcript of the first sidebar conference be sealed, and the court so ordered. App. at 9-10. This was followed by a third sidebar conference to discuss further the mechanics of the sealing order and notification of the media. App. at 11-14.

The following morning the district judge held an in chambers conference. He told counsel he was reconsidering the oral sealing orders entered the preceding day. After giving all parties the opportunity to be heard, the court entered a written order vacating the order sealing the transcripts. App. at 119-120. The court entered another order releasing the transcripts, which it stayed for 10 days to allow interested parties to appeal. Defendants Smith and Stoneman and the witness Doe each filed Doe's appeal is properly before us. An order denying access to portions of a trial record is appealable as a final order pursuant to 28 U.S.C. Sec. 1291. See United States v. Criden, 648 F.2d 814 (3d Cir.1981) (hereafter Criden I ). A fortiori, an order granting such access is similarly appealable.

Notices of Appeal. Smith and Stoneman, who were later convicted in the criminal case, withdrew their appeals from this order. On Doe's motion, the stay was extended by this court.

II. SCOPE OF REVIEW

The United States, as appellee, and appellee Philadelphia Newspapers, Inc. (PNI) argue that the district court properly exercised its discretion when it ordered the unsealing of the transcripts of the bench conferences. Doe argues that in Criden I and United States v. Martin, 746 F.2d 964 (3d Cir.1984), we held that we have plenary review over a trial court's decision regarding disclosure and access. This mischaracterizes these decisions. In Criden I, the first of the line of cases considering access to court material, we developed an analytical framework for the scope of review of discretionary rulings. We reserved the highest degree of insulation from review for those decisions of the district court that are "based on first hand observations" or the district court's own "observation or familiarity with the course of the litigation." Criden I, 648 F.2d at 817-19. In contrast, a district court's decision to give access to judicial records pursuant to the common law right to inspect and copy judicial records is less dependent on the trial court's familiarity with the proceedings, and hence deserves less deferential review, although it is still denominated a discretionary decision. See, e.g., United States v. Criden, 681 F.2d 919, 921 (3d Cir.1982) (hereafter Criden III ). In such a situation, in evaluating the trial court's exercise of discretion, we "must consider the relevance and weight of the factors considered." Criden I, 648 F.2d at 818, quoted in United States v. Martin, 746 F.2d at 967. Of course, our review of the legal principles applied by the district court is always plenary. ¹

III. DISCUSSION

The absence of direct precedent on access of the public and the press to transcripts of sidebar and chambers conferences is somewhat surprising. Nonetheless, we find guidance in the legal principles that have evolved in connection with access to trials, pretrial proceedings, and trial materials.

Foremost is the general principle of openness of criminal trials founded in the First Amendment. As the Supreme Court explained in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the First Amendment right of the public to attend criminal trials serves to marshal support for the administration of justice by inducing public acceptance of both the process and its results. Id. at 571-72, 575, 100 S.Ct. at 2824-25, 2826 (plurality opinion). The conduct of a criminal trial "is pre-eminently a matter of public interest" because its contemporaneous review by the public " 'is an effective restraint on possible abuse of judicial power.' " Id. at 596, 100 S.Ct. at 2838 (Brennan, J., concurring in the judgment) (quoting In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed.2d 682 (1948)). As the Court remarked thereafter, "the institutional value of the open criminal trial is recognized in both logic and experience." Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 606, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). The breadth of the right of access was reiterated when the Court extended it to the voir dire examination of potential jurors for criminal trials. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).

In United States v. Criden, 675 F.2d 550, 556 (3d Cir.1982) (hereafter Criden II ), we identified the following six societal interests in open court proceedings that the Richmond Newspapers Court had found: promotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system; promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings; providing a significant community therapeutic value as an outlet for community concern, hostility and emotion; serving as a check on corrupt practices by exposing the judicial process to public scrutiny; enhancement of the performance of all involved; and discouragement of perjury. These considerations led this court in Criden II to hold that there was a First Amendment right of access to pretrial suppression, due process, and entrapment hearings. Id. at 557.

The same considerations would ordinarily apply to evidentiary rulings that could affect the course of the trial. There are, however, countervailing considerations that may militate against contemporaneous access, most notably concern that evidence that the court has ruled inadmissible should not find its way to the jury's attention. In most circumstances, it would be sufficient to make the ruling in open court but outside the presence of the jury. In other circumstances, it may be more efficient for counsel and the trial judge to speak at sidebar or in chambers than for the jury to be removed from the courtroom when questionable evidence is at issue. Barring the press and the public from these conferences may help ensure the fairness of the trial itself.

PNI does not contend that there is a constitutional or common law right of contemporaneous presence. Brief of PNI at 10. It is conceded that the public does not have the "right to intrude uninvited into conferences at the bench and in chambers." Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir.1984). As Justice Brennan noted in his separate opinion in Richmond Newspapers, Inc. v. Virginia, "the trial judge is not required to allow public or press intrusion upon the huddle" of a bench interchange, nor are judges restricted in their ability to conduct conferences in chambers distinct from trial proceedings. 448 U.S. at 598 n. 23, 100 S.Ct. at 2839 n. 23.

Although the public and press may be justifiably excluded from sidebar and chambers conferences even when substantive rulings are made, the public interest in the ruling is not diminished. At some stage, and we need not in this case decide precisely when, that ruling must be available for public review so that the purposes of open trials can be satisfied. This can readily be effectuated because preservation of a correct and authentic record is mandated by 28 U.S.C. Sec. 753, which requires that a court reporter record all proceedings in criminal cases had in open court. That statute patently applies as well to evidentiary rulings made at sidebar, see Edwards v. United States, 374 F.2d 24, 26 (10th Cir.1966), cert. denied, 389 U.S. 850, 88 S.Ct. 48, 19 L.Ed.2d 120 (1967), because the statutory purpose would be defeated were there no possibility of appellate review.

A sidebar conference at which a question to a witness was proffered and an objection sustained is an integral part of a criminal trial. Thus, if there has been no contemporaneous observation, the public interest in observation and comment must be effectuated in the next best possible manner. This is through the common law right of access to judicial records. By inspection of such transcripts, the public, usually through the press, can monitor, observe, and comment upon the activities of the judge and of the judicial process. We hold, therefore, that...