Virginia Dept. of State Police v. Washington Post
| Decision Date | 01 October 2004 |
| Docket Number | No. 04-1375.,04-1375. |
| Parties | VIRGINIA DEPARTMENT OF STATE POLICE, Appellant, v. THE WASHINGTON POST; THE VIRGINIAN PILOT; RICHMOND TIMESDISPATCH; Associated Press; Virginia Press Association; Media General Operations, Incorporated, Appellees, Earl Washington, Jr., Plaintiff-Appellee, and Kenneth H. Buraker; Charles Jones; Harlan Lee Hart; Gerald Yancey; Gary L. Close; Denny M. Slane; Terry Schrum; Curtis Reese Wilmore; Luther Cox; Denny A. Zeets; Town Of Culpeper, Virginia; Fauquier County, Virginia; Mary L. Jones, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Western District of Virginia, Norman K. Moon, J.
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ARGUED: James Owen Towey, Assistant Attorney General, Office Of The Attorney General Of Virginia, Richmond, Virginia, for Appellant. Peter J. Neufeld, Cochran Neufeld & Scheck, L.L.P., New York, New York; John G. Kester, Williams & Connolly, Washington, D.C., for Appellees. ON BRIEF: ON BRIEF: Jerry W. Kilgore, Attorney General, Martin L. Kent, Assistant Attorney General, Richmond, Virginia, for Appellant. Eric M. Freedman, New York, New York; Robert T. Hall, Hall, Sickels, Rostant, Frei & Kattenburg, P.C., Reston, Virginia, for Earl Washington, Jr.; Conrad M. Shumadine, Willcox & Savage, P.C., Norfolk, Virginia, for The Virginian-Pilot; Craig T. Merritt, Christian & Barton, L.L.P., Richmond, Virginia, for Media General Operations, Inc., t/a The Richmond Times-Dispatch, Associated Press, and Virginia Press Association; Dane H. Butswinkas, Kenneth J. Brown, Williams & Connolly, L.L.P., Washington, D.C., for The Washington Post.
Before WIDENER and SHEDD, Circuit Judges, and David R. HANSEN, Senior Circuit Judge of the United States Court of
Affirmed in part and remanded in part by published opinion. Judge SHEDD wrote the opinion, in which Judge WIDENER and Senior Judge HANSEN joined.
Earl Washington, Jr., was convicted, sentenced to death, and eventually pardoned for the 1982 murder of Rebecca Lynn Williams. The underlying case from which this appeal comes to us is Washington's civil rights lawsuit in which he challenges his arrest and conviction for the Williams murder, but the merits of that case are not now before us. Instead, we are presented with a challenge by the Virginia Department of State Police ("VDSP")—which is not a party in Washington's civil case—to the district court's decision to unseal certain documents that VDSP had produced pursuant to a subpoena duces tecum served by Washington and other documents which contain information from the VDSP documents. The documents were filed in the district court under seal, and they pertain to VDSP's criminal investigation into the Williams murder. For the reasons set forth below, we affirm the district court's decision to unseal the documents in part, and we remand in part for further proceedings.
On June 4, 1982, Williams was raped and murdered in her Culpeper, Virginia, apartment. In May 1983, while in custody for an unrelated crime, Washington confessed to raping and killing Williams. Washington was tried and convicted for the capital murder of Williams in January 1984, and he was thereafter sentenced to death. The Supreme Court of Virginia affirmed Washington's conviction and sentence, see Washington v. Virginia, 228 Va. 535, 323 S.E.2d 577 (1984), and his attempts at post-conviction relief were unsuccessful, see Washington v. Angelone, 12 Fed. Appx. 112 (4th Cir.2001); Washington v. Murray, 4 F.3d 1285 (4th Cir.1993); Washington v. Murray, 952 F.2d 1472 (4th Cir.1991).
In 1994, then-Governor L. Douglas Wilder commuted Washington's sentence to life in prison, and in 2000, then-Governor James S. Gilmore, III, pardoned Washington. Governor Gilmore based the pardon on his determination that a jury, if presented with newly available DNA test results, would have reached a different conclusion regarding Washington's guilt. Governor Gilmore explained his rationale:
According to the results of the new DNA tests, Washington is excluded from semen taken from Mrs. Williams' body and his DNA could not be located elsewhere in the apartment.
The DNA results further revealed the semen of another person on a blue blanket taken from the scene of the crime. The DNA from semen on the blue blanket matched the DNA of a convicted rapist. However, the DNA on the blue blanket did not match the DNA of the sole sample of semen taken from Mrs. Williams' body. As a result, the Division of Forensic Science could not confirm the DNA found on the blue blanket was Rebecca Williams' rapist.
(J.A. 264-65). In conjunction with the pardon, Governor Gilmore ordered VDSP to conduct a new investigation into the Williams case.
Washington filed the underlying civil action in 2002. During pre-trial proceedings, Washington served a third-party subpoena duces tecum on VDSP commanding production of all documents and other materials concerning him from June 1982 to the date of the subpoena "including, without limitation, all such material related to the murder of Rebecca Lynn William [sic] and the investigation ordered thereon by Governor James S. Gilmore, III." (J.A. 74). VDSP responded by releasing all applicable documents except those it asserted were part of the ongoing criminal investigation file. VDSP objected to producing those documents, and Washington moved to compel their production. VDSP then moved to quash or modify the subpoena.
The district court granted Washington's motion to compel, denied VDSP's motion to quash, and ordered VDSP to produce the investigation file. The district court recognized the "potential sensitivity" of the information in the investigation file, but it concluded that Washington's "need for this information and the public interest outweigh the need for total secrecy." (J.A. 167). The district court, however, conditioned its ruling on the entry of a protective order. Subsequently, the district court entered a protective order that required VDSP to produce the investigation file only to the parties, counsel of record and their employees, and properly designated experts. The protective order prohibited further dissemination of the investigation file. Washington and VDSP subsequently consented to the entry of a supplemental protective order to govern documents that were created after the original subpoena had been served.
Many of the documents produced by VDSP pursuant to the protective orders were later attached to or addressed in pleadings and other documents filed with the district court, and some were also discussed during district court hearings. Although the protective orders did not address the issue of sealing these documents, they were in fact filed under seal.
As the case progressed, Washington moved to lift the protective orders. Washington argued that the VDSP investigation was no longer ongoing and, therefore, the justification for maintaining the confidentiality of the VDSP discovery documents no longer existed. Washington also argued that under the First Amendment and the common law the public has a right of access to the VDSP documents. Several media organizations ("Media Appellees") subsequently moved to intervene and to unseal all documents that had been filed under seal.
On February 20, 2004, the district court heard oral arguments on the motions. At the conclusion of the hearing, the district court ordered VDSP to file a statement setting forth its reasons for wanting to maintain under seal any sealed pleadings, sealed documents attached to pleadings, or sealed transcripts. VDSP thereafter filed its statement ("the statement of compelling reasons"). As a result of this process, VDSP narrowed the list of documents it desired to keep under seal, and it attached those documents (under seal) to the statement of compelling reasons as Exhibits A through T. While VDSP asserted that some documents should remain under seal in their entirety, it also proposed redactions for other documents. Generally speaking, VDSP's stated reasons for keeping these documents sealed are that they concern a "certain suspect" and forensic testing relating to that suspect.
The district court thereafter issued three orders addressing the issue of the sealed documents. In the first order (dated March 5, 2004), the district court ruled "[f]or the time being" that the documents designated for redaction by VDSP in the statement of compelling reasons would be redacted and that the documents that VDSP wished to keep under seal would remain under seal. The district court unsealed all other sealed documents that were filed before February 20, 2004.
On March 10, newspaper articles about the Williams murder investigation were published in various newspapers, including the Washington Post and the Richmond Times-Dispatch. These articles, which were attributed to the Associated Press, reported that the unsealed court documents identify Kenneth Maurice Tinsley, a convicted rapist, as a suspect in the murder because Tinsley's DNA matches samples found at the crime scene. Many additional news reports have likewise identified Tinsley as a suspect because of the DNA samples.
In the second order (dated March 18, 2004), the district court ordered that, with one exception (Exhibit D), all documents filed under seal before February 20, 2004, be unsealed.1 The district court explained The documents that VDSP claims should remain under seal predominantly deal with Kenneth Maurice Tinsley ("Tinsley"), a convicted rapist who is a suspect in the murder of Rebecca Williams. The Court is sympathetic to the desire of the state police to keep aspects of a murder investigation off the public record. Because VDSP did not attempt to seal all portions of the record that disclose Tinsley as a suspect, however, Tinsley's identity is already a matter of public record. Given that...
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