US v. Doherty

• Decision Date: 02 June 1987
• Docket Number: Crim. A. No. 86-240-Y.
• Citation: 675 F. Supp. 719
• Parties: UNITED STATES of America, Plaintiff, v. Thomas K. DOHERTY, Nelson E. Barner, Nicholas Salerno, Arthur J. Pino, Robert W. Clemente, Sr., John A. Deliere, and Michael J. Doherty, Defendants.
• Court: U.S. District Court — District of Massachusetts

675 F. Supp. 719

UNITED STATES of America, Plaintiff, v. Thomas K. DOHERTY, Nelson E. Barner, Nicholas Salerno, Arthur J. Pino, Robert W. Clemente, Sr., John A. Deliere, and Michael J. Doherty, Defendants.

Crim. A. No. 86-240-Y.

United States District Court, D. Massachusetts.

June 2, 1987.

Robert S. Mueller, III and A. John Pappalardo, Asst. U.S. Attys., Boston, Mass., for plaintiff.

Richard Bachman, Thomas May, Michael Collora, Thomas Troy, Frederick Harris, Richard Egbert, George Gormley, Boston, Mass., Frank Marchetti, Somerville, Mass., Thomas Noone, Malden, Mass., Joseph Flak and Thomas Finnerty, Boston, Mass., for defendants.

MEMORANDUM OF DECISION

YOUNG, District Judge.

On May 7, 1987, the jury returned its verdict in the above-captioned matter after a seventeen week trial. As soon as the verdict had been returned, News Group Boston, Inc. (the "Herald") and the Globe Newspaper Company (the "Globe") came before the Court seeking to intervene at the post-verdict stage of this criminal prosecution in order to gain access to the names and addresses of the jury for the purpose of conducting post-verdict interviews. The jurors' names and addresses had been impounded during the course of the trial and were known only to the litigants and their counsel. The motions to intervene were granted, see United States v. Criden, 675 F.2d 550, 559 (3d Cir.1982) (requiring that motion requesting closure be entered on the docket to afford interested members of the public an opportunity to intervene and present their views to the court); In re Globe Newspaper Co., 729 F.2d 47, 50 n. 2 (1st Cir.1984) (citing Criden but not deciding whether a media representative may intervene in a criminal action for the purpose of appealing a closure order and instead invoking mandamus review), and, for the reasons set forth in this memorandum, the motions for access to the jurors' names and addresses were granted subject to limitations.

THE FACTS

On May 7, 1987, after eight days of deliberation and on the sixty-second day since the commencement of trial, the jury found Thomas K. Doherty, Nelson E. Barner, Nicholas Salerno, Arthur J. Pino, Robert W. Clemente, Sr., and John A. Deliere guilty of various counts of conspiracy to commit mail fraud and certain defendants guilty on other counts alleging perjury and conduct in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (1982). One defendant, Michael J. Doherty, was found not guilty on all counts against him.¹

On January 12, 1987, as the trial commenced, this Court had entered a sequestration order that required that the jurors be secluded from all outside contact while they were present in the courthouse. The jurors were admonished daily not to discuss the case with anyone, not to watch any television, listen to any radio, or read any newspaper accounts of the trial. Finally, the names and addresses of the jurors were impounded from the empanelment process and throughout the course of the trial.

Once the verdict had been received, with the jury still in the courtroom just prior to its being discharged, this Court suggested to the members of the jury that while they were now free to discuss the case with members of the public, including the press, they ought refrain from discussing the actual deliberation process. Thereafter, once the jury had been discharged, the courtroom staff and I met informally with the jurors in the jury room to thank them personally for their lengthy service and to answer their questions about court procedures. At this time, the jurors expressed their unanimous desire not to have their names and home addresses disclosed to the press.

As the jurors departed for the hotel where they had been sequestered during their eight days of deliberations, and thence home by taxi, this Court commenced the hearing at which briefs and arguments from counsel for the two newspapers were entertained. The newspapers sought to have the impoundment order vacated and the names and addresses of the jurors released immediately — while the public's attention was still focused intently on the "jury's performance of its public duties." Memorandum of Globe Newspaper Co., at 3.

DISCUSSION

"Rights," as Mr. Justice Holmes observed, "tend to declare themselves absolute to their logical extreme." Hudson Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908). The issue here presented requires this Court to resolve the tensions posed by what appear to be the inherently competing interests advanced by the public's First Amendment right of access to criminal proceedings through the operation of a free press, the accused's Sixth Amendment right to a fair trial before an impartial jury, and the judiciary's legitimate concern for, as well as the individual juror's right to, personal privacy.

I.

In Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972), the Supreme Court recognized that news gathering qualifies for First Amendment protection, for "without some protection for seeking out the news, freedom of the press could be eviscerated." Since that decision, the Supreme Court has added substance to that access right by recognizing rights of access to criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the voir dire examination of potential jurors, Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("Press-Enterprise I"), and most recently, the transcript of a preliminary hearing before the public trial. Press-Enterprise Co. v. Superior Court, ___ U.S. ___, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) ("Press-Enterprise II").

In Press-Enterprise II, the Supreme Court reviewed its two-part test for determining whether a right of access is implicated. First, have the place and process historically been open to the press and general public? Second, will public access play a significant, positive role in the functioning of the particular process in question? 54 U.S.L.W. at 4871. If the particular proceeding — in this case, post-verdict press inquiries of jurors — passes these tests, a right of public access attaches. Once attached, however, the right is not absolute. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982); see Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-81, 14 L.Ed.2d 179 (1965) ("The right to speak and publish does not carry with it the unrestrained right to gather information."). Unlike prior restraints, which are generally unconstitutional per se, Gannett Co. v. DePasquale, 443 U.S. 368, 393 n. 25, 99 S.Ct. 2898, 2912 n. 25, 61 L.Ed.2d 608 (1979); In re Providence Journal Co., 809 F.2d 63, 69 (1st Cir.1986) (where prior restraint impinges on pure speech the presumption of unconstitutionality is virtually insurmountable), limitations on a right of access will be upheld where the court determines, based upon adequate findings, that an overriding interest narrowly tailored to the circumstances at hand overcomes the First Amendment right. Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824.

II.

Here, the Court notes as a preliminary matter that it is inconsequential whether the post-verdict interviews are considered part of the criminal trial for purposes of the right to access analysis. As Mr. Justice Stevens' concurring opinion in Press-Enterprise I noted, "the distinction between trials and other official proceedings is not necessarily dispositive, or even important, in evaluating the First Amendment issues.... The question the Court decides today ... focuses on First ... Amendment values and the historical backdrop against which the First Amendment was enacted." Press-Enterprise I, 464 U.S. at 516-17, 104 S.Ct. at 827 (Stevens, J., concurring).

The first aspect of this Court's analysis of the First Amendment values at issue requires an inquiry into history. What, if anything, is our American tradition concerning accessability of the jurors to the press for post-verdict interviews? It is beyond peradventure that the actual deliberations of a jury are private and confidential and not subject to public access. Sharp, Postverdict Interviews with Jurors, Case & Comment 3, at 6 n. 18 ("If our several centuries' old faith in the jury system means anything at all, it implies a strong secrecy of the jury room deliberations."). See generally O. Holmes, The Common Law 122-19 (1881); 3 Blackstone's Commentaries *349 (1768). In the instant case, the more specific issue is, of course, the right of access after the jury deliberations have concluded. In United States v. Franklin, 546 F.Supp. 1133, 1139-42 (N.D.Ind.1982) (Sharp, J.),² a district court compiled numerous opinions wherein courts have expressed "widespread" concern over post-verdict jury interrogations. See, e.g., Stein v. New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 1089, 97 L.Ed. 1522 (1953) ("Nor have the courts favored any public or private post-trial inquisition of jurors as to how they reasoned, lest it operate to intimidate, beset and harass them) (emphasis added). Miller v. United States, 403 F.2d 77, 81 (2d Cir. 1968):

We see no basis for doubting the authority of the judge to direct that any interrogation of jurors after a conviction shall be under his supervision.... There are many cogent reasons militating against post-verdict inquiry into jurors' motives for decision. The jurors themselves ought not be subject to harrassment; the courts ought not be burdened with large numbers of applications mostly without real merit; the chances and temptations for tampering ought not be increased; verdicts ought not be made so uncertain.

While the history of post-verdict interviews appears scant, the broad latitude afforded the press in gathering news, especially in recent years, tends to...