United States v. Franklin, F Cr 82-16.

• Decision Date: 30 August 1982
• Docket Number: No. F Cr 82-16.,F Cr 82-16.
• Citation: 546 F. Supp. 1133
• Parties: UNITED STATES of America, Plaintiff, v. Joseph Paul FRANKLIN, Defendant.
• Court: U.S. District Court — Northern District of Indiana

546 F. Supp. 1133

UNITED STATES of America, Plaintiff, v. Joseph Paul FRANKLIN, Defendant.

No. F Cr 82-16.

United States District Court, N. D. Indiana, South Bend Division.

August 30, 1982.

Christina McKee, Asst. U. S. Atty., Fort Wayne, Ind., Daniel F. Rinzel, Barry F. Kowalski, Criminal Section, Civ. Rights Div., Dept. of Justice, Washington, D. C., for plaintiff.

J. Frank Kimbrough, Fort Wayne, Ind., for defendant.

Lawrence Gunnels, Samuel Fifer, Charles C. Post, Reuben & Proctor, Chicago, Ill., Joseph S. Van Bokkelen, Goldsmith, Goodman, Ball & Van Bokkelen, Highland, Ind., Richard W. Cardwell, Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, Ind., for intervenor newsgathering organizations.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

I.

The defendant, Joseph Paul Franklin, was charged with violating the civil rights of Vernon E. Jordan in Fort Wayne, Indiana on May 29, 1980 by attempting to shoot him. The case was tried before this judge in South Bend, Indiana and the trial concluded on August 17, 1982. The trial involved a number of unique security problems to the court, its personnel, witnesses, and the defendant himself. The trial was the subject of much media attention, both national and local, with an involved personal coverage by reporters from a considerable number of news gathering organizations.

Alternate jurors were excused at approximately 12:25 P.M. on August 17, 1982 with the following remarks:

THE COURT: There are a couple of things. First of all, I thank you. I'm a little surprised that we didn't have to use one of you. It's rare when we have a trial go this long that we don't have to use one alternate for one reason or another. That didn't happen.

I trust, first of all, it's been interesting for you. It's been an unusual trial. A somewhat historic one, I suppose, in some respects. Otherwise, you have served the public well by being here.

It may well have been that we would have needed to use you. We didn't. I frankly think that the rule ought to be modified so at least you can be sitting in there listening. And I see that you agree with that. But that isn't the rule. That is the rule in State Courts in Indiana. It is not the rule in our courts, and I have to follow the rules even when I don't agree with them.

But the most important thing I want to say to you is that I now enjoin all participants in this trial, and all others, as I always do, from attempting to interrogate any of the four of you. And the same injunction will be applicable to the 12 jurors when they return.

I understand that there are those who disagree with this almost violently. But as long as I have anything to do with running trials it will be so. And that is I do not think and never have, that jurors should be subject to anybody questioning them when they leave the performance of their duties. They can't question me; I'm a Judge. You're also judges, and they can't question you. And I do not permit it.

You will not be accosted in the hallways by anyone; lawyers, participants, or others, in attempting to interrogate how you might be deciding this case if you were in there rather than out here.

So I excuse you with that admonition, and I'm most appreciative. I'm the only one that is permitted under procedures to thank you. I do thank you on behalf of all of us, and on behalf of the Court. You may leave this way (indicating).

During the course of deliberations the Court received a written communication from one of the representatives of one news gathering organization which was covering the trial. That written communication is now filed of record in this case and incorporated by reference herein.

Also, during deliberations one representative of one of the news gathering organizations covering the trial informed personnel of the court that he intended to make oral objections to the court's proceedings during the course of taking the verdict. With that knowledge at hand and before the jury was brought into the court room to announce its verdict, this Court made the following observations and orders:

THE COURT: Bring in the Defendant. There are some procedures this Court normally follows with regard to the receipt of the verdict. And they are fundamentally no different in this case than in literally hundreds of other cases that this Court does try.

First of all, I now instruct the United States Marshal and his staff to seal the courtroom with reference to anyone coming or going until the Jury has been in, the verdict received, and the Jury has been discharged. The room is about two-thirds of the way full. It's a public proceeding. Anyone else that wants to get in will get in. You will get out when we release you and you can get to the phones or whatever all at one time. I do not intend to tolerate half of the audience leaving right in the middle of the proceedings. It's too important for that. That's one item.

Item two, there are only two groups of people in this room that have any standing besides the Jury and the Court to participate in this proceedings. One group is the three attorneys for the Government. The other person is the Defendant's counsel. No one else will be permitted to in anyway involve himself in this proceeding. This Court will see that the procedure is followed with whatever means is at its hands to do so.

The orders that this Court will lay down are the same orders that this Court has laid down literally hundreds of times in every single jury case that this Court has tried, except one, and that's when I forgot.

A verdict of not guilty was returned at approximately at 8:55 P.M. on August 17, 1982. After the receipt of the verdict this Court made the following comments and orders to the jury in discharging them:

THE COURT: It is the normal practice of this Court to enjoin those who are participants in this trial, all others, from attempting to interrogate you about the contents of your deliberations or the reasons for your verdict. And that is now done in this case.

There are reasons for that. Simply stated, you will be called back for other cases. There are other good policy reasons, in my opinion, and in the opinions of judges through the Federal System in reported cases, for that injunctions.

You will not be accosted or questioned as you go to your cars or as you go to your homes tonight by the participants in this trial or by anyone else. The marshals have been instructed to see to that. And they have been instructed by me.

You have served the public faithfully in this case. You have performed your duties within the law and the evidence. And I now thank you and release you.

On August 20, 1982 the Chicago Tribune Company and others, hereinafter called petitioners, filed a written motion to reconsider and vacate order concerning communication with jury members. The same was immediately set for hearing on September 9, 1982 at 1:30 P.M. with a request to brief the standing issue. As indicated orally in open court on the 26th day of August, 1982 at the hearing on said petition at that time September 9, 1982 represented the first time that this Court had an opportunity to hear this matter considering the numerous matters that were then scheduled by this Judge in this Court in both South Bend, at the Indiana State Prison, and in Lafayette, Indiana.

Soon thereafter the Court's schedule changed and the aforesaid petition was set for hearing on August 30, 1982 at 1:30 o'clock P.M. Thereafter, because the Court's calendar at the Indiana State Prison was shorter than expected the aforesaid hearing was rescheduled and actually held about 4:00 o'clock P.M. on the 26th day of August, 1982.

On August 23, 1982 the petitioners filed a proceeding for a Writ of Mandamus in the United States Court of Appeals for the Seventh Circuit and the same was assigned their cause number 82-2325. On August 23, 1982 the Court of Appeals entered the following order:

On consideration of the "EMERGENCY PETITION FOR WRIT OF MANDAMUS" filed herein on August 23, 1982, by counsel for the petitioners,

IT IS ORDERED that Honorable Allen Sharp, United States District Court Judge for the Northern District of Indiana, respondent herein, file a response to said petition by 12:00 noon, Friday, August 27, 1982.

This order was not received by this Judge until August 26, 1982 although the contents thereof were read orally to this Judge by a law clerk from the Court of Appeals while this Judge was handling prisoner litigation at the Indiana State Prison on August 23, 1982. Thereafter, on August 24, 1982, in the aforesaid action, the Court of Appeals entered the following order:

By order dated August 23, 1982, this Court requested that the respondent, Judge Allen Sharp, file a response to the "EMERGENCY PETITION FOR WRIT OF MANDAMUS" filed herein on August 23, 1982 by counsel for the petitioners.

At that time, the district court had scheduled its hearing for September 9, 1982 on the petitioners' "MOTION TO RECONSIDER AND VACATE THE INJUNCTION ORDER" prohibiting the jurors from discussing United States v. Franklin.

This Court, sua sponte, modifies its earlier order dated August 23, 1982 in the following respect:

IT IS ORDERED that the respondent, Judge Allen Sharp, either hold a hearing to resolve the petitioners' "MOTION TO RECONSIDER AND VACATE THE INJUNCTION ORDER" by 5:00 p.m., August 27, 1982, or vacate the injunction order entered on August 17, 1982.

Said order of August 24, 1982 was not received by this Judge until August 25, 1982, although the contents thereof were made known to this Judge on either August 24 or August 25, 1982. Thereafter, on August 26, 1982 the Court of Appeals entered the following order:

Upon consideration of respondent's "MOTION TO CONTINUE" filed on August 26, 1982, said motion is DENIED. This Court, however, modifies its order of August 24, 1982, as follows:

1. Respondent, Judge Allen Sharp shall commence the hearing to resolve the petitioners' "MOTION TO RECONSIDER AND VACATE THE INJUNCTION ORDER" by

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