United States v. Shkreli, 15–CR–637 (KAM)

• Decision Date: 25 June 2017
• Docket Number: 15–CR–637 (KAM)
• Citation: 260 F.Supp.3d 257
• Parties: UNITED STATES of America, v. Martin SHKRELI, Defendant.
• Court: U.S. District Court — Eastern District of New York

260 F.Supp.3d 257

UNITED STATES of America,

v.Martin SHKRELI, Defendant.

15–CR–637 (KAM)

United States District Court, E.D. New York.

Signed June 25, 2017

Winston M. Paes, Claire S. Kedeshian, David C. Pitluck, Girish Karthik Srinivasan, United States Attorneys Office Eastern District of New York, Alixandra Eleis Smith, David K. Kessler, Jacquelyn M. Kasulis, United States Attorney's Office, Brooklyn, NY, for United States of America.

Andrea L. Zellan, Jacob Kaplan, Marc A. Agnifilo, Teny Rose Geragos, Brafman & Associates, P.C., Benjamin Brafman, Brafman & Ross, P.C., New York, NY, for Defendant.

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

The court assumes familiarity with the facts of this case, which commences on June 26, 2017. Before the court is a request from the Eastern District of New York press pool ("EDNY press pool") to "allow having one pool reporter attend individual voir dire of potential jurors at sidebar" to listen and take notes. (Letter from EDNY Press Pool, ECF No. 256.) Neither the government nor Mr. Shkreli initiated a request for closed sidebar, but responded to the court's order to provide their views. The parties have submitted letters on this issue. (Letter in response to request from EDNY press pool ("Gov. Letter"), ECF No. 253; Letter in response to request from EDNY press pool ("Def. Letter"), ECF No. 254.)

At oral argument on June 22, 2017, the court heard arguments from the EDNY press pool through a legal representative jointly retained by several news organizations, and also heard arguments by the parties.

The defense, citing "unparalleled negative press statements" about Mr. Shkreli, has "vigorously oppose[d]" the presence of a reporter at sidebar, arguing that his Sixth Amendment right to a fair trial will be denied if potential jurors cannot speak freely at sidebar to disclose possible bias without fear that their comments will be reported publicly. (Def. Letter at 1.) The government does not object to having a reporter present at sidebar, but has asked that juror names be withheld by referring to them only by number during the course of the trial. (Gov. Letter at 2–3 (citing United States v. Blagojevich , 743 F.Supp.2d 794, 801 (N.D. Ill. 2010) ).

For the reasons set forth below, the court grants the press pool request in part. The voir dire will be conducted in a public courtroom and the court will conduct the voir dire without the necessity of a questionnaire. Although the parties submitted joint questions for use in a potential questionnaire, the court will ask the questions orally. A press pool reporter may be present during voir dire sidebars, but the court may, in its discretion, excuse the reporter from portions of the voir dire if a juror so requests or if the court determines that the presence of the pool reporter will inhibit a potential juror's candor. Counsel for the EDNY press pool has represented that jurors' names and their private, personal information will not be disclosed. The court and the parties will not refer to jurors by name, but instead will use the numbers randomly assigned by the jury clerk throughout the trial, and the list of jurors will not be released until the end of trial. The press will be provided the opportunity to access the sidebar transcript.

Introduction

The EDNY press pool request for access to sidebars during voir dire raises important issues concerning the First Amendment right to openness of judicial proceedings and the defendant's Sixth Amendment right to a fair trial. These rights are not necessarily in conflict. The Supreme Court has repeatedly recognized that one "important means of assuring a fair trial is that the process be open to neutral observers." Press–Enterprise Co. v. Superior Court of California , 478 U.S. 1, 7, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (" Press–Enterprise II "). As the Second Circuit has noted, "except in rare circumstances, openness preserves, indeed, is essential to, the realization of [the right of the accused to a fair trial] and to public confidence in the administration of justice." ABC, Inc. v. Stewart , 360 F.3d 90, 105–06 (2d Cir. 2004). The presence of the press at trials not only "makes some contribution to the fairness of trials and the perception that justice is done," United States v. King , 140 F.3d 76, 83 (2d Cir. 1998) (citing Press–Enterprise Co. v. Superior Court of California , 464 U.S. 501, 508–10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (" Press–Enterprise I ")), but also helps educate the public on the judicial process. Press coverage of voir dire , no less than coverage of opening statements or the cross examination of a key witness, contributes to the fairness of trials.

Nevertheless, the purpose of voir dire is to ensure that both parties at trial may meaningfully participate in selecting an unbiased jury that will fairly and impartially hear the evidence and reach their verdict after careful deliberation and on consideration of the evidence. The court recognizes that, irrespective of length, trials demand much of jurors: time away from jobs and families; long days demanding unwavering concentration on the evidence presented; potentially lengthy and contentious deliberations; and complex and sometimes unsettling questions of fact. Despite the best efforts of the court and the parties, voir dire itself can be a uniquely uncomfortable experience. There are few circumstances other than jury selection in which a citizen is called into court, placed under oath, and required to candidly and truthfully answer questions about sensitive personal issues or controversial beliefs or biases. In most cases, a juror's disclosures are entered into the court transcript and unnoticed by the public, at most only aired on appeal. In a high-profile case in which there has been ongoing pre-trial media coverage, however, prospective jurors may be subject to having their answers reported and disseminated that same day. See King , 140 F.3d at 83. A fair and thorough voir dire is critical in every case to assure the parties and the public that an impartial jury will perform its solemn duty to decide the facts in dispute, impartially and without prejudice, bias, or sympathy, based solely on the trial evidence and instructions on the law.

Legal Standard

In Press–Enterprise I , a case involving press access to voir dire , the United States Supreme Court made clear that "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press–Enterprise I , 464 U.S. at 510, 104 S.Ct. 819 (quoting Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) ). The court must articulate the interest to be protected by the closure and must also issue specific findings. Id. Where the overriding interest to be protected is the defendant's right to a fair trial, the court must make specific findings that "there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." Stewart , 360 F.3d at 98–99. The Second Circuit has explained that the party seeking to restrict press access bears a "heavy" burden. Id. at 106.

Two Second Circuit cases also provide important guidance. At issue in United States v. King was the district court's closure of voir dire because "of the substantial amount of publicity, frequently negative, that [the defendant] has attracted and continues to attract, and the fact that he is black." 1998 WL 50221 at *1 (S.D.N.Y. Feb. 5, 1998) ), aff'd 140 F.3d 76 (2d Cir. 1998). The Second Circuit affirmed, concluding that the King case was the "unusual case where the fairness of a trial, or at least the voir dire phase, that is usually promoted by public access is seriously at risk of being impaired unless some modest limitation on access is imposed." 140 F.3d at 83. The Second Circuit noted that in considering the effect of the presence of a reporter during voir dire sidebars, the district court was concerned both with protecting from public disclosure the private, sensitive and personal matters of jurors, as well as the defendant's right to a fair trial by enabling jurors to be fully candid about potential racial bias. Id. at 82–83.

In contrast, in United States v. Stewart, the Second Circuit vacated a district court's order denying press access to voir dire , which was conducted entirely in the judge's robing room. The Second Circuit noted that "it was the government, and not the defendant, who first requested closure." Stewart , 360 F.3d at 102.¹ The Second Circuit then highlighted three reasons that counseled against closure in the Stewart case. First, "[t]he district court ... did not demonstrate a substantial probability that, absent closure, members of the media would have either disrupted the proceedings or disclosed information that the court had prohibited them from revealing." Id. at 101. Second, the court noted that the fact that "many venirepersons were likely to have prejudged" the defendant was insufficient grounds for closure, because "prospective jurors are likely to have preconceptions about the defendants in almost every criminal case that attracts attention." Id. Third, "the district court did not point to any controversial issue to be probed in voir dire that might have impaired the candor of prospective jurors." The Second Circuit also found that there were alternative, more narrowly tailored methods of ensuring juror candor than complete closure of voir dire , such as "concealing the identities of the prospective jurors" or a "partial closure," in which the media would be permitted to access "limited portions of the voir dire examinations." Id. at 105.

Analysis

A. Mr. Shkreli's Right to a Fair Trial is an Overriding Interest

The court...