United States District Court, Central District of Illinois, Springfield Division
December 31, 1997
UNITED STATES OF AMERICA, PLAINTIFF,
JAMES R. BERGER, DEFENDANT.
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 infringes upon a
defendant's sixth amendment right to a fair trial."); Edwards,
672 F.2d at 1294 (same).
The jury in this trial has not been sequestered. Although the
Court has daily admonished the jury to avoid any media coverage
of this trial, the Court realizes that we live in the
"information age." If the press is allowed to cover the substance
of the Governor's deposition before it is presented to the jury,
a juror may — albeit inadvertently — read, hear, or see the
Governor's responses to the questions propounded to him. Such an
occurrence would be unfair to the Defendant and to the
Government, especially if Defendant decides not to offer the
Governor's deposition as evidence at trial.
The jury is to base its decision upon the testimony and
evidence presented within the four walls of the courtroom. If a
juror were to read, view, or hear the coverage of the Governor's
deposition before it is played in Court, that juror may draw
unwarranted conclusions adverse either for or against Defendant
or the Government. By keeping the videotape under seal under
presented at trial, such a possibility is avoided.*fn3
The Court finds that exceptional circumstances exist, and it is
in the interest of justice to allow Governor Jim Edgar to be
deposed via videotape pursuant to Federal Rule of Criminal
Procedure 15(a). Furthermore, the Court finds that although the
press and the public have a common law and a First Amendment
right of access to the judicial record and to attend the trial,
those rights are outweighed by Defendant's Sixth Amendment right
to a fair trial.
Accordingly, the videotape of the Governor's deposition will
remain under seal until it is played to the jury during the
trial. At that time the press and the public are welcome to
attend, hear, and to view the videotape along with the jury.
Afterwards, the press and the public may order transcripts of the
Governor's deposition. The Court believes that such a procedure
will insure both the Defendant's right to a fair trial and the
press' and public's common law and First Amendment right of
access and is narrowly tailored to serve those interests.
Finally, the Associated Press, the Chicago Tribune Company, and
the Copley Press, Inc., have filed a petition to intervene and a
request for oral argument. Said petition fails to cite any
authority for its position. Thus, for the reasons set forth
above, the press' petition and request for oral argument is
Ergo, the Associated Press' and the Chicago Tribune Company's
Objection to Conduct Sworn Testimony of Governor Edgar In
Camera is OVERRULED. Likewise, the Associated Press', the
Chicago Tribune Company's, and the Copley Press, Inc.'s Petition
to Intervene and request for oral argument are DENIED.