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United States v. Black

April 6, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CONRAD M. BLACK, JOHN A. BOULTBEE, PETER Y. ATKINSON, AND MARK S. KIPNIS, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Currently before the Court is the Chicago Tribune's (the "Tribune") Motion to Intervene and for Immediate Public Access to Names of Jurors (the "Motion"). (R. 523-1, Tribune Motion.) The Tribune contends that the Court must disclose the names of empaneled jurors and alternates pursuant to the First Amendment right to access judicial proceedings. (Id. at 1.)*fn1 All Defendants oppose the Tribune's motion, and the government takes no position. For the reasons below, the Court grants the Motion in part, and denies it in part. The Court grants the Tribune's request to intervene, but denies its request to release the names of the jurors during the pendency of the trial.

BACKGROUND

Dubbed by a major Canadian business magazine as the "trial of the century" and by Vanity Fair magazine as the "trial of the decade," this case has generated intense international media interest. Over 400 media personnel representing close to 60 organizations have sought and received media accreditation in anticipation of this trial. Organizations such as the British Broadcasting Corporation, Agence France Presse, CTV, Inc. (Canadian Television), The Times of London are accredited and have come from around the globe to cover these proceedings. To accommodate media coverage, the Court has reserved approximately half of its courtroom seating for members of the media and also has arranged a live audio and video feed in two overflow courtrooms. Throughout the initial stages of trial, the live courtroom, as well as both overflows, have been near full capacity.

The global news coverage in the case has been extensive. In recent days (and well before) articles discussing the events in this case have appeared in significant publications and media outlets in Canada, the United States, the United Kingdom, Australia, and elsewhere. See, .e.g., "Conrad Black Deal Is Described," LOS ANGELES TIMES (Apr. 3, 2007); Andrew Stern, "Clever But Not Illegal Ways Used," COURIER MAIL (AUSTRALIA) (Apr. 4, 2007); "Media Glee as Press Baron Goes on Trial," THE LONDON TELEGRAPH (Mar. 25, 2007); Deborah Dundas, "Conrad Keeps Us Under His Spell," BELFAST TELEGRAPH (Apr. 2, 2007); "Black Trial Hears of 'Clever' Payments," CHINA DAILY (Apr. 4, 2007). Events that normally pass without so much as a whisper have, in this case, garnered headlines from the world's leading newspapers and magazines. See, e.g., Rick Westhead, "Pulling Out All the Smirks at Black Trial; Lawyers Woo Jury with Well-Honed Body Language," TORONTO STAR (Apr. 4, 2007); Vanessa Friedman, "Of Hermes and the Courtroom," FINANCIAL TIMES LTD. (Mar. 30, 2007); James Bone, "Black Gets Back on the Party Circuit," THE TIMES (UK), (Mar. 30, 2007); Janet Whitman, "Blacks Find Free Time for Party Circuit," NEW YORK POST (Mar. 30, 2007). The jurors in this case have not been excepted from the media's discerning eye. Indeed, columnists and commentators have described the jurors' daily in-court activities -- see, e.g., Paul Waldie, "Jurors Scribble as Lawyers Expound," THE GLOBE AND MAIL (Wed. Mar. 21, 2007); Romina Maurino, "Jury Starting To Get Bored?" THE WINNIPEG FREE PRESS (Apr. 2, 2007) -- as well as their personal descriptions. See Christie Blatchford, "Two Viewpoints, Two Approaches, but Ultimately Only One Winner," THE GLOBE AND MAIL (Mar. 21, 2007); see also Peter Worthington, "Jury of 'Peers' Selected? What Chance Do These 12 Have of Understanding Fraud Case?" EDMONTON SUN (Mar. 16, 2007); Ian Brown, "A Revealing Glimpse of the Jury that Wasn't," THE GLOBE AND MAIL (Mar. 16, 2007).*fn2 The case has generated similarly intense commentary in the blogosphere. (See, e.g., R. 560-1, Def. Black's Suppl. Resp. at ¶3, Ex. 5 (citing and attaching excerpts from the following blogs: conradblacktrial.com, thecrimesheet.com, and slate.com).)

Due in part to this global media interest, the Court, after completing voir dire in an open hearing,*fn3 accepted the parties' peremptory strikes at sidebar. On Tuesday, March 20, 2007, the Court empaneled twelve jurors and six alternates. The Court has disclosed the names and addresses of the twelve jurors and six alternates to the parties, but has not made that information publicly available.

ANALYSIS

I. The Tribune Has a Right To Intervene

Because the right of access to judicial records and proceedings "must be balanced against competing values," "representatives of the press and general public must be given an opportunity to be heard on the question of their exclusion from the proceedings or access to documents." In re Associated Press, 162 F.3d 503, 508 (7th Cir. 1998) (internal quotation omitted). "Thus, the Press [should be] permitted to intervene in order to present arguments against limitations on the constitutional or common law right of access." Id. Accordingly, the Court grants the Tribune's motion to intervene.

II. The First Amendment Does Not Grant a Right of Access to Juror Names During the Pendency of Trial

Although the "right of access to criminal trials is not explicitly mentioned in terms in the First Amendment," it is now "firmly established" "that the press and general public have a constitutional right of access to criminal trials." Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 603-04, 102 S.Ct. 2613, 2618 (1982) ("Underlying the First Amendment right of access to criminal trials is the common understanding that a major purpose of that Amendment was to protect the free discussion of governmental affairs. Thus to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected discussion of governmental affairs is an informed one." (internal quotation omitted)). But not all aspects of a criminal trial are entitled to protection under the First Amendment. While courts have held that the First Amendment right of access applies to criminal trials, to certain preliminary hearings, Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10, 106 S.Ct. 2735, 2741, 92 L.Ed. 2d 1 (1986) ("Press-Enterprise II"), to voir dire proceedings, Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508-09, 104 S.Ct. 819, 823, 78 L.Ed. 2d 629 (1984) ("Press-Enterprise I"), and to evidence admitted at trial, United States v. Ladd, 218 F.3d 701, 704-05 (7th Cir. 2000), courts also have held that the First Amendment does not guarantee access to withdrawn plea agreements, affidavits supporting search warrants, or presentence reports. In re Boston Herald, Inc., 321 F.3d 174, 183 (1st Cir. 2003) (citing cases); United States v. Corbitt, 879 F.2d 224, 228-29 (7th Cir. 1989) (holding no First Amendment right to access presentence reports). Even when a First Amendment right of access exists it is not absolute, but rather "may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81 L.Ed. 2d 31 (1984). Indeed, "[n]o right ranks higher than the right of the accused to a fair trial." Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823; see also Neder v. United States, 527 U.S. 1, 30, 119 S.Ct. 1827, 1844, 144 L.Ed. 2d 35 (1999) ("When the Court deals with the content of th[e] guarantee [to a trial by impartial jury] -- the only one to appear in both the body of the Constitution and the Bill of Rights -- it is operating upon the spinal column of American democracy.") (Scalia, J. in dissent).

A. The Test for the Right of Access

To determine whether the First Amendment provides a qualified right of access to a particular aspect of a criminal proceeding, a court must consider (1) whether "the place and process have historically been open to the press and general public" (the "experience test"), and (2) that "public access plays a significant positive role in the functioning of the particular process in question" (the "logic test"). Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740 (further noting that the court looks to history when determining whether the right to access exists "because, a tradition of accessibility implies the favorable judgment of experiences"); see also Gannett Co. v. State, 571 A.2d 735, 749 (Del. 1989) ("[w]hen applied to the historical experience, therefore, the logic test helps 'to distinguish between what the Constitution permits and what it requires'" (quoting Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 385, 99 S.Ct. 2898, 2908, 61 L.Ed. 2d 608 (1979))); Corbitt, 879 F.2d at 228 (describing Press-Enterprise II as enunciating a two-prong analysis consisting of "experience test" the "logic test"). The party alleging the existence of the qualified First Amendment right bears the burden of establishing both parts of this threshold test. Gannett, 571 A.2d at 749; Matter of 2 Sealed Search Warrants, 710 A.2d 202, 207 (Del. Super. Ct. 1997) ("The party seeking a First Amendment right of access must make a two-part threshold showing known as the experience and logic tests . . . If the court finds that the moving party has made this showing, a qualified First Amendment right of access attaches." (citing Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740)); Corbitt, 879 F.2d at 228 (finding no right to access under the First Amendment: "[w]e believe that Pulitzer's [the newspaper publisher intervenor] assertion of a right to inspect Corbitt's presentence report fails to satisfy either prong of this 'experience and logic' test").*fn4 Only then does the burden shift to the party seeking disclosure to establish that (1) "there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent" and (2) "reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." Press-Enterprise II, 478 U.S. at 14-15, 106 S.Ct. at 2743; see also Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824 (party seeking closure must establish that "closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.").

1. The Experience Test

Unquestionably, the First Amendment guarantees the press and public the right to attend the voir dire proceeding. Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823. Consistent with the holding of Press-Enterprise I, both the press and public had access to the voir dire proceedings in this case. But the question before the Court is the distinct issue of whether the Tribune has a constitutional right to learn the jurors' names before the jury returns its verdict, or whether the Court maintains discretion in this regard. See also Gannett, 571 A.2d at 740-41 (considering itself the first court to "confront the novel issue whether the news media have a qualified first amendment right of access requiring announcement of jurors' names during a criminal trial" -- "Other cases regarding the media's right of access to jurors' names presented questions of prior restraints on the press, the ...


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