The opinion of the court was delivered by: Richard Mills, District Judge.
This is a criminal case in which James R. Berger is charged
with 16 counts of mail fraud and with 1 count of misapplication
of government property.
We are in the midst of the Government's case before a jury, but
in recess due to the temporary ill health of a juror. Both the
Government and Defendant have agreed and stipulated that a
witness for Defendant shall have his testimony taken by video
deposition to be shown to the jury at an appropriate time during
The Court totally concurs.
However, the Associated Press and the Chicago Tribune Company
have filed an "Objection to Conduct Sworn Testimony of Governor
Edgar In Camera," and the Copley Press, Inc., has joined them
in a "Petition to Intervene," and all ("the press") request oral
The press objects to the in camera deposition of Illinois
Governor Jim Edgar and argues that it has the right to attend and
to view the Governor's deposition. Moreover, the press asserts
that the Governor's deposition could be taken in a manner which
would allow it and the public to view and to hear his deposition
prior to it being presented to the jury. Accordingly, the press
asks the Court to permit it to attend the Governor's deposition.
The Court is well aware of the constitutional right of the
press and the public to attend a criminal trial. Globe Newspaper
Co. v. Superior Court for the County of Norfolk, 457 U.S. 596,
102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973
(1980). "[A] trial courtroom . . . is a public place where the
people generally — and representatives of the media — have a
right to be present, and where their presence historically has
been thought to enhance the integrity
and quality of what takes place." Richmond Newspapers, 448 U.S.
at 578, 100 S.Ct. at 2827.
The trial in the case sub judice is not immune to this right.
However, contrary to the press' assertions in its objection,
Governor Edgar will not be presenting trial testimony today.
Rather, the Governor will provide a videotaped deposition to be
preserved for possible use at trial next week pursuant to Federal
Rule of Criminal Procedure 15(a). Rule 15(a) provides:
Whenever due to exceptional circumstances of the case
it is in the interest of justice that the testimony
of a prospective witness of a party be taken and
preserved for use at trial, the court may upon motion
of such party and notice to the parties order that
testimony of such witness be taken by deposition and
that any designated book, paper, document, record,
recording, or other material not privileged, be
produced at the same time and place.
In the instant case, the Court finds that exceptional
circumstances exist for taking the Governor's deposition. The
Governor's schedule calls for him to be out of the country
beginning on January 2, 1998, on a three week trip to India.
Accordingly, the Governor would be unavailable to testify next
week. Based upon the Governor's unavailability next week, the
Court finds that it is in the interest of justice that his
deposition be taken today and be preserved for possible use later
at trial.*fn1 By allowing the Governor to be deposed via a
videotaped deposition, Defendant is allowed to present a defense
consistent with his trial strategy and allows him to tender all
of the witnesses on his witness list.
Once the Governor's deposition has been videotaped, it may be
played to the jury. At that time, the press and the public alike
are welcome to view, hear, and to attend the playing of the
videotape. Until the jury views the videotape, however, it will
remain sealed. After the tape has been played at trial before the
jury, the press and the public may order a transcript of the
Governor's deposition. This procedure has been invoked by other
district courts. See United States v. McDougal, 103 F.3d 651,
656-57 (8th Cir. 1996) (affirming this procedure); United States
v. Poindexter, 732 F. Supp. 170, 172-73 (D.D.C. 1990).
Although the Seventh Circuit recognizes a "strong presumption"
in favor of the common law and First Amendment right of access to
judicial records,*fn2 "[n]either the common-law nor the
constitutional right is absolute." Grove Fresh Distrib., Inc. v.
Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994). "This
presumption is rebuttable upon demonstration that suppression `is
essential to preserve higher values and is narrowly tailored to
serve that interest.'" Id. quoting Press-Enterprise, 464 U.S.
at 510, 104 S.Ct. at 824. "Every court has supervisory power over
its own records and files, and access has been denied where the
court files might become a vehicle for improper purposes." Nixon
v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct.
1306, 1312, 55 L.Ed.2d 570 (1978). "[T]he decision as to access
is best left to the sound discretion of the trial court, a
discretion to be exercised in light of the relevant facts and
circumstances of the particular case." Id. at 599, 98 S.Ct. at
In the present case, the Court finds that it is best to keep
the Governor's videotaped deposition under seal until it is
played to the jury. The Court believes that if the press is
allowed to attend the Governor's deposition, the reports
emanating from the deposition may deny Defendant his Sixth
Amendment right to a fair trial. Guzzino, 766 F.2d at 304
(holding that "access may be denied if it ...