The opinion of the court was delivered by: Richard Mills, District Judge.
The Governor's videotaped deposition.
And like any competent sequel, a little factual background
information is necessary.
Defendant has been charged with sixteen counts of mail fraud
and with one count of misapplication of government property.
During the midst of the trial, a juror became ill. Rather than
making use of the last available alternate juror, the Court and
the parties agreed to recess the trial until the juror was able
to return to Court.*fn1
A problem with this plan arose in that Defendant had
anticipated calling Illinois Governor Jim Edgar as a witness the
next day. The Governor had a long planned three week official
trade mission to India and, therefore, would only be available to
testify the following day — his final day before departure. In
order to alleviate this conflict, the parties stipulated to allow
the Governor to be deposed via videotape pursuant to Federal
Rule of Criminal Procedure 15(a) and by that means, would
preserve the Governor's deposition for use at trial at
Defendant's discretion. However, until Defendant decided to play
the videotape to the jury, the videotape was to remain in the
possession of the reporting service which had videotaped the
Governor's deposition and was to be treated as a sealed
matter.*fn2 Furthermore, members of the public were prohibited
from attending the Governor's deposition.
After the taping of the Governor's deposition, the Court met
with the parties in chambers. At that meeting, the Court broached
the issue of the public's access to the transcript and videotape
should Defendant decide to offer it as evidence in his
case-in-chief. The parties and the Court agreed that once played
to the jury, both the transcript and the videotape itself would
be open to the public for inspection and copying.
Upon that backdrop, we begin the sequel.
After the trial resumed, Defendant did, in fact, decide to
offer the Governor's deposition as evidence in his case-in-chief,
and thus, it was played to the jury. During the morning break,
counsel for Defendant approached the Court and inquired as to the
Court's intentions with respect to keeping the videotape under
seal. Defendant's counsel related that the Governor's staff had
requested that the videotape be placed back under seal once it
was viewed by the jury. At a meeting in chambers, Defendant
asserted that it was also his position that the videotape be
placed back under seal once it had been presented to the jury.
Upon returning to open Court (but out of the jury's presence)
counsel for the Governor asked to be heard and moved the Court
for a protective order which placed the videotape back under seal
once it was played to the jury. Alternatively, counsel for the
Governor requested the Court to stay our ruling on the issue ...