United States v. Wecht

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

8-1-2008

USA v. Wecht

Precedential or Non-Precedential: Precedential

Docket No. 07-4767

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 07-4767

UNITED STATES OF AMERICA

v.

CYRIL H. WECHT

WPXI, Inc;

TRIBUNE-REVIEW PUBLISHING COMPANY;

PG PUBLISHING COMPANY

d/b/a Pittsburgh Post-Gazette,

Appellants

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Judge: The Honorable Arthur J. Schwab

District Court No. 06-CR-26

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 8, 2008

1

Before: SMITH, FISHER, and VAN ANTWERPEN, Circuit

Judges

(Filed: August 1, 2008 )

David J. Berardinelli

Walter P. DeForest, III

DeForest, Koscelnik, Yokitis, Kaplan & Berardinelli

436 Seventh Avenue

3000 Koppers Building

Pittsburgh, PA 15219

Counsel for WPXI, Inc.

David A. Strassburger

Strassburger, McKenna, Gutnick & Potter, P.C.

444 Liberty Avenue

Suite 2200, Four Gateway Center

Pittsburgh, PA 15222

Counsel for Tribune Review Publishing Co.

David J. Bird

W. Thomas McGough, Jr.

Joseph F. Rodkey, Jr.

Reed Smith LLP

435 Sixth Avenue

Pittsburgh, PA 15219

Counsel for PG Publishing Company

Amy L. Barrette

Jerry S. McDevitt

Jagan N. Ranjan

2

Mark A. Rush

Kirkpatrick & Lockhart Preston Gates Ellis LLP

535 Smithfield Street

Henry W. Oliver Building

Pittsburgh, PA 15222

Richard L. Thornburgh

Kirkpatrick & Lockhart Preston Gates Ellis LLP

1735 New York Avenue, N.W.

Suite 500

Washington, D.C. 20006

Counsel for Cyril Wecht

Rebecca R. Haywood

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for United States of America

OPINION

SMITH, Circuit Judge.

I.

We issue this opinion in support of our order filed on

3

January 9, 2008 in the matter of United States v. Wecht. WPXI,

Inc., PG Publishing Company, doing business as Pittsburgh

Post-Gazette, and Tribune-Review Publishing Co. (collectively,

the “Media-Intervenors”), filed a motion challenging an order of

the United States District Court for the Western District of

Pennsylvania announcing jury selection procedures to be used

at an impending criminal trial. Specifically, the Media-

Intervenors challenged the District Court’s decisions (1) to

empanel an anonymous trial jury, and (2) to conduct voir dire

through use of a written questionnaire and without

venirepersons physically present in an open courtroom until the

pool of prospective jurors was reduced to 40. In our January 9

order, we vacated the District Court’s order to the extent that it

restricts public access to the names of trial jurors or prospective

jurors.1 We denied all other relief sought.

1

Our order decreed that “juror and prospective jurors’

names” shall be disclosed prior to the swearing and

empanelment of the jury. The term “prospective juror” refers to

a member of the venire. The term “juror” refers to a member of

the venire who is chosen to be part of the actual trial jury. For

the sake of clarity, this opinion will use the term “trial jurors” to

describe people in the latter category. We also emphasize that,

referring to the names of “juror[s] and prospective jurors,” we

anticipated that the District Court’s disclosure would distinguish

between the names of trial jurors and those of prospective

jurors. It appears that in the disclosure that followed the entry

of our order, the District Court did not make such a distinction.

See Notice of Filing Prospective Juror List, United States v.

4

II.

On January 20, 2006, a grand jury returned an 84-count

indictment against Dr. Cyril H. Wecht. As we noted in deciding

an earlier interlocutory appeal in this matter, “[t]he 84-count

indictment asserts that [Wecht] unlawfully used his public office

as the coroner of Allegheny County, Pennsylvania, for private

financial gain.” United States v. Wecht, 484 F.3d 194, 198 (3d

Cir. 2007). The offenses charged included theft of honest

services, mail and wire fraud, and theft from an organization

receiving federal funds. The case was assigned to Judge Arthur

Schwab of the U.S. District Court for the Western District of

Pennsylvania. During a pretrial conference on July 12, 2006,

the parties reported to the District Court that they had agreed to

use a 24-page questionnaire containing 69 questions in the jury

selection process.2

The following day, on July 13, 2006, the Board of Judges

Wecht, No. 06-CR-26 (W.D. Pa. Jan. 23, 2008).

2

In May of 2006, the Media-Intervenors moved to

intervene in an effort to unseal certain court filings. In response

to those motions, the Court unsealed certain documents. Wecht

and the Government appealed several rulings, and Wecht filed

a petition for mandamus seeking review of the District Court’s

denial of his motion to recuse. See United States v. Wecht, 484

F.3d 194 (3d Cir. 2007). Pretrial preparation proceeded in the

District Court during the pendency of those appeals.

5

for the Western District of Pennsylvania entered an

administrative order directing that “all jurors shall be identified

in court during the jury selection process by his/her assigned

juror number ONLY. A prospective juror shall no longer be

identified by or identify himself or herself by name.” In re Jury

Administration Procedures, Misc. 06-211 (W.D. Pa. July 13,

2006). The order further provided that “any and all juror lists

generated by this Court for use in the jury selection process shall

be deemed confidential and property of the Court and shall not

be removed from the Court at any time.” Id. The juror lists

were available only to counsel who were required to execute a

receipt for the list and to return it upon completion of jury

selection.

A day later, on July 14, Judge Schwab issued a pretrial

order addressing the use of the jury questionnaire and

establishing procedures to be employed during voir dire.

Section A of the order noted that the summons to be issued to

prospective jurors would be mailed together with the final juror

questionnaire, a cover letter from the Court, and instructions.

Section B of the order pertained to the jury questionnaire

procedure. Paragraph 5 of Section B of the order stated:

“Pursuant to the decision of the Board of Judges of this District,

counsel shall not have access to the names and addresses of the

prospective jurors. Therefore, Jury Administrator Morder is

instructed to remove and retain the last page of the Jury

Questionnaire setting forth the prospective jurors’ names and

current addresses.” Although this directive was more restrictive

6

than the July 13, 2006 standing order, neither Wecht nor the

Government objected. Paragraph 6 of Section B of the order

scheduled a hearing for September 19, 2006, to permit counsel

to review the completed jury questionnaires, albeit without the

names and addresses of the jurors, and to confer among

themselves as to prospective jurors that they did not believe

should be part of the venire. Jury selection was scheduled for

October 11, 2006.

In mid-September, after hearing oral arguments in the

first Wecht appeal, this Court granted a stay of the trial pending

its resolution of the various appeals. United States v. Wecht, No.

06-3098 (3d Cir. Sept. 15, 2006). As a result, the 300 venire

members who had been summoned were released. After we

issued our mandate, Judge Schwab entered an order on

November 26, 2007, announcing the jury selection procedures

he would follow. The order stated in the first paragraph that the

“jury will be anonymous.” The Court directed the jury

administrator to issue 400 summonses. This time, however, the

summons would not be accompanied by the juror questionnaire.

Instead, the venire members would be called in groups of sixty

to appear in the jury assembly room where they would receive

the standard jury orientation and complete the jury questionnaire

fashioned for this case. During the afternoon of each session,

the jury administrator would provide four copies of the

completed jury questionnaire to the District Court. The Court

would then provide the questionnaire to counsel to review for

the purpose of making challenges for cause and obtaining

7

information for peremptory challenges. The District Court

instructed that it would rule on any challenges for cause each

afternoon or the following morning. Final selection of the petit

jury was tentatively scheduled to begin on January 23, 2008,

during which the parties would exercise their peremptory

challenges.

Wecht objected inter alia to jury anonymity, the

limitation on access to the questionnaires, and the fact that the

District Court’s order did “not indicate whether the voir dire

questions will be given to each group in open court or even at all

prior to the for cause determinations . . . . ” In a subsequent

filing, Wecht objected to the removal of the signature page from

the jury questionnaire and requested that each prospective juror

be subject to voir dire in open court. On December 4, the

Media-Intervenors filed a petition with the District Court

objecting to the anonymous jury and the lack of in-person,

public voir dire in open court.

On December 21, 2007, Judge Schwab issued a 64-page

order reviewing the procedural history relative to jury selection

and voir dire. Order of Court Re: Jury Selection, Voir Dire, And

Other Pretrial Issues, No. 2:06-cr-00026-AJS (W.D. Pa. Dec. 21,

2007) (“Dec. 21 Order”). In this order, Judge Schwab reiterated

his earlier declaration that the “jury will be anonymous,” but

8

noted that he preferred the term “innominate jury.” 3 Dec. 21

Order at 21 n.5. Additionally, Judge Schwab opined that the

voir dire process would provide the parties with ample

information about the jurors. Dec. 21 Order at 21 n.5. After

setting forth the factors to be considered in deciding whether to

empanel an anonymous jury, Judge Schwab adhered to his

earlier ruling to empanel such a jury. Dec. 21 Order at 28–30.

Noting that the Media-Intervenors had challenged the Board of

Judges’ order (Misc. 06-211) as unconstitutional, he disclaimed

any reliance on this order as the basis of his decision. Dec. 21

Order at 18 n.4.

In his December 21 order, Judge Schwab also explained

that “[t]he court will be reviewing the Jury Questionnaire in

open court at the same time as counsel, so rulings may be made

on the record, with media in attendance to hear the reason(s) for

3

Judge Schwab provided two reasons for his preference

for this term. First, he said that the term “anonymous”

inappropriately connoted a “clandestine, forbidden, and

obscure” jury panel.” Dec. 21 Order at 21 n.5 (quoting United

States v. Carpa, 271 F.3d 962, 963 n.1 (11th Cir. 2001)).

Second, he suggested that the jury was not really anonymous

because the parties knew everything about the jurors but their

names. Id. (citing United States v. Bowman, 302 F.3d 1228,

1236 (11th Cir. 2002)). Judge Schwab nonetheless uses the

terms “anonymous” and “innominate” interchangeably in his

December 21 order. In this opinion, we will use the term

“anonymous.”

9

each ‘for cause’ dismissal, by juror number.” Dec. 21 Order at

33. The order further noted that “the Court, as it always has

done throughout this case, will provide the media access to the

Courtroom during the six (6) day initial jury selection process

(including all rulings on the record re: ‘for cause’ decisions);

and during voir dire process of the pool of 40 jurors using the

individual voir dire questions . . . .” Dec. 21 Order at 37.

Judge Schwab explained that “the final jury selection

process will commence on January 23, 2008, and copies of the

completed Jury Questionnaires of the pool of 40 prospective

jurors will be returned only to the counsel, parties, and the Court

(with a copy of the last page of the Jury Questionnaire

identifying the names and addresses in order by juror number).”

Dec. 21 Order at 44. During this final stage of the process, the

District Judge noted that he would ask ten voir dire questions of

each prospective juror. Dec. 21 Order at 40–41 (listing the

questions). The order specified that the Media-Intervenors

would, at the conclusion of the trial, be given access to review

the jury questionnaire, excluding the last page which contained

the juror’s name and address. Dec. 21 Order at 34–35. The

order contains no indication that the Media-Intervenors would

be given access to the names or addresses of the prospective and

trial jurors at any time before or after Wecht’s trial.

The Media-Intervenors timely appealed the December 21

order. They moved for summary reversal under Third Circuit

Internal Operating Procedure (“I.O.P.”) 10.6 or, in the

10

alternative, for a stay of jury selection. See Media’s Emergency

Motion, United States v. Wecht, No. 07-4767 (3d Cir. Dec. 26,

2007).4 The Government filed a response opposing the motion

(Government’s Response, United States v. Wecht, No. 07-4767

(3d Cir. Jan. 2, 2008)5 ), and Wecht filed a Response supporting

it (Wecht’s Response, United States v. Wecht, No. 07-4767 (3d

Cir. Jan. 2, 2008)6 ). The motions panel referred the matter to a

merits panel on January 2, 2008, deeming the parties’

submissions on the motion to be their legal briefs and offering

4

The full title of this application is “The Media’s

Emergency Motion For Summary Reversal Of The District

Court’s Order Dated December 21, 2007, Or, In The

Alternative, Expedited Relief In The Form Of A Stay Of Jury

Selection And Trial Proceedings Pending Disposition Of This

Appeal.”

5

The full title is “Government’s Response To The

Media’s Emergency Motion For Summary Reversal Of The

District Court’s Order Dated December 21, 2007, Or, In The

Alternative, Expedited Relief In The Form Of A Stay Of Jury

Selection And Trial Proceedings Pending Disposition [Of] This

Appeal.”

6

The full title is “Cyril H. Wecht’s Response To The

Media’s Emergency Motion For Summary Reversal Of The

District Court’s Order Dated December 21, 2007, Or, In The

Alternative, Expedited Relief In The Form Of A Stay Of Jury

Selection And Trial Proceedings Pending Disposition Of This

Appeal.”

11

the parties an opportunity to file supplemental briefs. See Order,

United States v. Wecht, No. 07-4767 (3d Cir. Jan. 2, 2008).

After the Media-Intervenors filed a Reply to the Government’s

Response (Media’s Reply, United States v. Wecht, No. 07-4767

(3d Cir. Jan. 4, 2008)7 ), all of the parties submitted letters stating

that they would rely on their previous filings as their briefs on

the merits.8 In an order filed on January 9, 2008, we declared

that

[t]o the extent that the District Court’s order

restricts access of Media Intervenor-Appellants

and defense counsel to the names of prospective

jurors who participate in the selection process

prescribed by the District Court, those provisions

7

The full title of the Media’s Reply is “The Media’s

Reply in Support of Emergency Motion for Summary Reversal

of the District Court's Order dated December 21, 2007, or, in the

Alternative, Expedited Relief in the Form of a Stay of Jury

Selection and Trial Proceedings Pending Disposition of this

Appeal.”

8

The dissent argues that we would have benefitted from

“additional briefing” given the fact that the parties’ original

filings focused on the Media-Intervenors’ request for summary

reversal or a stay. Dissent, infra, at 58 n.44. As noted above,

we offered the parties an opportunity to file supplemental briefs

after the matter was referred to a merits panel, and they chose to

rely on their previous filings.

12

of the order are VACATED. We leave to the

discretion of the District Court the method and

timing of disclosure of juror and prospective

jurors’ names, except that disclosure of those

names shall be made prior to the swearing and

empanelment of that jury.9

Order, United States v. Wecht, No. 07-4767 (3d Cir. Jan. 9,

2008). We denied any other relief relative to the voir dire

proceedings. Id. We denied the motion for a stay as moot

because our order was issued prior to the commencement of

trial. Id.

III.

We have jurisdiction to review the Media-Intervenors’

motion under 28 U.S.C. § 1291 and the “collateral order”

doctrine.10 See Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

9

We noted that Media-Intervenors were “not seeking

access to the jurors’ home addresses or the actual jury

questionnaire.” Order at 2 n.1, United States v. Wecht, No. 07-

4767 (3d Cir. Jan. 9, 2008). For that reason, we do not address

those issues here.

10

In our January 9 order, we stated: “Appellate

jurisdiction exists under the collateral order doctrine.” Order at

2, United States v. Wecht, No. 07-4767 (3d Cir. Jan. 9, 2008)

(citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

13

541, 546–47 (1949). Under 28 U.S.C. § 1291, “[t]he courts of

appeals . . . shall have jurisdiction of appeals from all final

decisions” of district courts. Ordinarily, this rule “prohibits

appellate review until conviction and imposition of sentence” in

a criminal case. Flanagan v. United States, 465 U.S. 259, 263

(1984). The category of “final decisions” subject to appellate

review under § 1291 also includes, however, “collateral orders”

that (1) “conclusively determine the disputed question,” (2)

“resolve an important issue completely separate from the merits

of the action,” and (3) are “effectively unreviewable on appeal

from a final judgment.” Coopers & Lybrand v. Livesay, 437

U.S. 463, 468–69 (1978). When deciding whether an order is

appealable as a collateral order under § 1291, we give this

provision of the statute a “practical rather than a technical

construction.” Cohen, 337 U.S. at 546.

In United States v. Schiavo, we held that a District

Court’s order restricting the media from publishing certain

information about a criminal trial was appealable under the

collateral order doctrine because it “determined a matter

independent of the issues to be resolved in the criminal

proceeding itself, bound persons who were non-parties in the

(1949)). Our dissenting colleague now argues that the collateral

order doctrine did not provide us with jurisdiction to hear this

appeal. See Dissent, infra, at 2–19. We are surprised that he did

not raise this purported jurisdictional defect in his dissent to our

January 9 order.

14

underlying criminal proceeding and had a substantial, continuing

effect on important rights.” 504 F.2d 1, 4–5 (3d Cir. 1974) (en

banc). In United States v. Cianfrani, we applied Schiavo to

permit collateral order jurisdiction over the media’s challenge to

orders excluding the public and the press from a pretrial hearing

and sealing the record. 573 F.2d 835, 845 (3d Cir. 1978) (citing

Schiavo, 504 F.2d at 4). The Government has challenged our

exercise of jurisdiction, relying in large part on Flanagan, in

which the Supreme Court held that we must interpret the

requirements of the collateral order doctrine “with the utmost

strictness in criminal cases” because of “the compelling interest

in prompt trials” and the delays that an appeal is likely to

create.11 465 U.S. at 265. Flanagan instructs us to defer appeal

until final judgment in a criminal case unless the matter involves

“an asserted right the legal and practical value of which would

be destroyed if it were not vindicated before trial.” Id. at 266

(citations and internal quotation marks omitted). At the time

Flanagan was decided, the Supreme Court had found only three

types of pretrial orders to meet the requirements of the collateral

order doctrine: (1) an order denying a motion to reduce bail; (2)

11

We note that our decision to grant review in this case

does not threaten “the compelling interest in prompt trials.” 465

U.S. at 265. Because we declined to grant the media’s request

for a stay, and because releasing the jurors’ names did not create

a time-consuming burden for the District Court, our ruling has

posed no danger to the interests of either Wecht or the public in

a speedy trial.

15

an order denying a motion to dismiss an indictment on double

jeopardy grounds; and (3) an order denying a motion to dismiss

an indictment on speech or debate grounds. Id. at 265–66. In

Sell v. United States, 539 U.S. 166, 176–77 (2003), the Court

recognized that an order to forcibly medicate a defendant during

trial also meets the requirements for collateral order jurisdiction.

What these orders have in common is that neither an acquittal,

a post-trial reversal of a conviction, nor any other result can

adequately redress the harm that these orders cause. See

Flanagan, 465 U.S. at 266–67. The Supreme Court has not

addressed, post-Flanagan, whether a right of access claim raised

by a media outlet in a criminal case would satisfy the collateral

order doctrine.12 The issue before us, therefore, is not only

12

In ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004), the

Second Circuit held that an order affecting the right of access in

a criminal case was appealable under the collateral order

doctrine. Id. at 97. Without mentioning Flanagan, the court

deemed the order appealable for two reasons. First, the court

said that the district court had “in effect allowed the Media

Coalition to intervene in the pending criminal proceeding for the

limited purpose of challenging” the order, and that the order was

therefore final and appealable as to the intervenors. Id. (citing

In re Herald Co., 734 F.2d 93, 96 (2d Cir. 1984)). Second, the

court said that because the Media Coalition’s claims “could have

been treated by the district court as a new civil case, as opposed

to an intervention in the pending criminal case, and the orders

would have been final in that case[,] [n]o jurisdictional

significance should attach simply because the district court

16

whether the instant order would be appealable under the

principles of Schiavo and Cianfrani, but also whether Flanagan

has effectively overruled these cases.

Because Flanagan has its greatest impact on the third

requirement of the collateral order doctrine (i.e., that the

decision must be “effectively unreviewable on appeal from a

final judgment”), we address this requirement first. We

conclude that it would be impossible for us to vindicate the

public’s asserted right of access if we foreclosed appeal of this

matter until after the final judgment. As with the orders

discussed in Flanagan and Sell, the potential harm caused by an

improper order restricting the public’s right of access to a

criminal trial is not adequately redressable on appeal after final

judgment, regardless of the trial’s outcome. We have observed

in similar cases that “contemporaneous review [of judicial

proceedings] by the public ‘is an effective restraint on possible

abuse of judicial power.’” United States v. Smith, 787 F.2d 111,

113 (3d Cir. 1986) (quoting Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 596 (1980) (Brennan, J., concurring in

the judgment)); see also Republic of Philippines v.

Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 1991);

United States v. Criden, 648 F.2d 814, 821 (3d Cir. 1981).

Knowledge of jurors’ identities aids public review by enabling

chose to treat appellants as intervenors in the criminal

proceeding.” Id. (citing In re New York Times Co., 828 F.2d

110, 113 (2d Cir. 1987)).

17

the public to “verify the impartiality of key participants in the

administration of justice.” In re Globe Newspaper Co., 920

F.2d 88, 94 (1st Cir. 1990).

The Government argues that we can fully vindicate any

such right via post-trial release of information, allowing us to

defer review until the final judgment. Although post-trial

release of information may be better than none at all, the value

of the right of access would be seriously undermined if it could

not be contemporaneous. See, e.g., Grove Fresh Distribs. v.

Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (“To delay

or postpone disclosure undermines the benefit of public scrutiny

and may have the same result as complete suppression.”). We

do not suggest, of course, that public disclosure of information

related to judicial proceedings m ust alw ays be

contemporaneous, given the interests in security and the other

grave concerns that might outweigh the right of access in a

particular case. Indeed, “stronger reasons to withhold juror

names and addresses will often exist during trial than after a

verdict is rendered.” Globe Newspapers, 920 F.2d at 91

(emphasis in original). But the value of contemporaneous

disclosure, as opposed to post-trial disclosure, is significant

enough to justify our immediate review of the matter under the

collateral order doctrine. Accordingly, we decline to hold that

Flanagan undermines our conclusion in Schiavo and Cianfrani

that right of access claims are immediately appealable.

We turn now to the other requirements for application of

18

the collateral order doctrine. The first requirement is that the

order must “conclusively determine the disputed question.”

Coopers & Lybrand, 437 U.S. at 468. We cannot review any

decision that is “tentative, informal or incomplete.” Cohen, 337

U.S. at 546. The District Court’s December 21, 2007 order is a

conclusive determination that the names of prospective jurors

will not be available to the Media-Intervenors at any time before

or after the trial and that voir dire will be conducted by written

questionnaire until the pool of jurors is reduced to forty.13 We

reach this conclusion based on the fact that the 64-page order

explicitly considers and rejects the Media-Intervenors’

objections to this procedure. There is no reason to believe that

any subsequent developments would have led the District Court

to reconsider its conclusion.14 The Government does not dispute

13

The Dec. 21 Order does not explicitly address whether

the venirepersons will be present when counsel reviews the jury

questionnaire in open court.

14

The dissent argues that the December 21 order was not

final because if the Media-Intervenors or the defendant had

petitioned for modification of the December 21 order, “they may

well have been successful.” Dissent, infra, at 9. Given the fact

that the District Court had already considered and rejected their

arguments, we find it unlikely that they could have achieved the

desired modification by making these arguments again. Of

course, it was theoretically possible that the District Court would

have modified the December 21 order, either in response to a

petition for modification or sua sponte. This possibility does not

19

that the District Court’s order conclusively determined the

question.15 See Government’s Response at 8–9 (“the order

regarding jury selection procedures may satisfy the first

requirement of the collateral order doctrine, i.e., conclusively

determining the disputed question . . .”). Accordingly, we

conclude that the District Court’s order satisfies the first

requirement of the collateral order doctrine.

The second requirement is that the order “resolve an

important issue completely separate from the merits of the

eliminate finality, however, because the first requirement of the

collateral order doctrine may be satisfied when “there is no basis

to suppose that the District Judge contemplated any

reconsideration of his decision.” Moses H. Cone Mem. Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 12–13 (1983). Because the

District Court’s December 21 order indicates that it is intended

to be the final word on the Media-Intervenors’ objections, it was

final for purposes of the collateral order doctrine.

15

We recognize that the Government’s failure to

challenge the finality of the order is not dispositive, since it is

always our duty to ensure that we are properly exercising

jurisdiction. To the extent that the finality of the order is a

factual issue, however, the Government may be in a better

position than we are to evaluate whether the District Court

would have considered a request for modification. Therefore,

its decision not to challenge this requirement of the collateral

order doctrine is notable.

20

action.” Coopers & Lybrand, 437 U.S. at 468. This is

sometimes divided into two sub-requirements: (a) the issue must

be important; and (b) the issue must be completely separate from

the merits of the action. The Supreme Court has defined an

important issue as one involving interests that are “weightier

than the societal interests advanced by the ordinary operation of

final judgment principles,” Digital Equip. Corp. v. Desktop

Direct, 511 U.S. 863, 879 (1994), or one that is “serious and

unsettled,” Cohen, 337 U.S. at 547.16 We believe that the

question of when a district court may withhold the names of

jurors and the content of voir dire proceedings from the public

during a criminal trial is important enough to satisfy the first

sub-requirement. The District Court’s order implicates the

public’s right of access to judicial proceedings, which is a

constitutional interest of sufficient weight to permit the

possibility of departing from ordinary final judgment principles.

Like the orders at issue in Schiavo and Cianfrani, the instant

16

At times, courts have treated importance as a fully

independent requirement of the collateral order doctrine. See,

e.g., Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (“As an

additional requirement, Cohen established that a collateral

appeal of an interlocutory order must ‘[present] a serious and

unsettled question.’” (quoting Cohen, 337 U.S. at 547)). The

exact role of the importance requirement in the analysis has been

the subject of debate. See generally 15A Charles Alan Wright,

et al., Federal Practice and Procedure § 3911.5 (2d ed. 1992).

21

order has “a substantial, continuing effect on important rights.” 17

See Cianfrani, 573 F.2d at 845; Schiavo, 504 F.2d at 5.

Moreover, as we make clear in our substantive discussion

below, the precise question in this case is unsettled. Thus, the

sub-requirement that the issue must be “important” is satisfied.

The issue is also completely separate from the merits of

the action, i.e., Wecht’s guilt or innocence. We have repeatedly

held that orders restricting public access to information are

separate from the underlying issues in criminal trials. See, e.g.,

Cianfrani, 573 F.2d at 841 (concluding that the media’s appeal

of an order barring the public from a pretrial suppression

hearing and sealing the record of that hearing was separate from

the merits of the underlying criminal proceeding); Schiavo, 504

F.2d at 5 (concluding that an order purporting to enjoin

newspapers from publishing information “determined a matter

17

In a footnote, the Government “questions the

importance of the Media’s ability to write articles that include

jurors’ names as opposed to articles without them.” See

Government’s Response at 9 n.6. As we explain below,

however, the release of juror names can be an important part of

the public’s right of access. In the words of the First Circuit in

In re Globe Newspaper Co., “[k]nowledge of juror identities

allows the public to verify the impartiality of key participants in

the administration of justice, and thereby ensures fairness, the

appearance of fairness and public confidence in that system.”

920 F.2d 88, 94 (1st Cir. 1990).

22

independent of the issues to be resolved in the criminal

proceeding itself”). The Government objects that the anonymity

of the jury is “intimately tied to the merits” because “the jury is

the entity that will decide the ultimate issues of guilt or

innocence in this case.” Government’s Response at 9. But the

relevant question is whether the issues presented in the Media-

Intervenors’ right of access claim are tied to Wecht’s guilt or

innocence, not whether the appealed issue and the merits

involve the same “entity.” In Sell v. United States, the Supreme

Court found that the issue of whether the defendant must be

forcibly medicated in order to stand trial was separate from the

merits, even though the District Court had found that the

medication served “the government’s compelling interest in

obtaining an adjudication of defendant’s guilt or innocence.”

539 U.S. 166, 174–76 (2003); see also 539 U.S. at 192 (Scalia,

J., dissenting) (agreeing that the medication order resolved “an

important issue separate from the merits” despite concluding

that the order did not satisfy the third prong). Similarly, in this

case, the District Judge may have believed that establishing jury

anonymity would aid the determination of guilt or innocence,

but the anonymity issue is nonetheless separate from any issue

presented by the merits. Thus, we believe that the sub-

requirement that the issue be “completely separate from the

merits of the action” is satisfied in this case.18

18

The Government cites several cases in support of a

contrary conclusion. First, it cites Sell for the proposition that

an issue satisfies the “completely separate” requirement only

23

The Government presents two additional challenges to

our ability to hear this appeal. First, the Government argues that

the media lacks standing because it “does not have a public right

of access under the First Amendment or the common law to the

jurors’ names and/or the jurors’ questionnaires” and thus

suffered no “injury in fact.” Government’s Response at 11–12.

when it is separate “from questions concerning trial procedures.”

539 U.S. at 176. Sell does not define a “trial procedure” or

explain whether this means something different from being

separate from the merits. In any case, we have discussed Sell

above and concluded that it supports the conclusion that jury

anonymity is completely separate from Wecht’s guilt or

innocence. Second, the Government cites United States v.

McVeigh, 106 F.3d 325, 332 (10th Cir. 1997), which held that

an order barring victim-impact witnesses from observing the

guilt phase of a capital trial was not separate from the merits of

the action. We decline to rely on McVeigh, however, because it

interprets the Criminal Appeals Act, 18 U.S.C. § 3731, rather

than the collateral order doctrine. 106 F.3d at 329; see also id.

at 331 (“. . . when the government seeks review in a criminal

case, concerns unaddressed by Cohen come into play.”). Third,

the Government cites dicta from United States v. Green, 407

F.3d 434, 438 (1st Cir. 2005), which addresses the government’s

attempt to appeal from a pretrial order establishing two separate

juries for guilt and sentencing. Like McVeigh, Green involves

a government appeal in a criminal case, and thus would not be

controlling even if it were a holding from our own circuit rather

than dicta from another.

24

Because we conclude that the Media-Intervenors have a right to

the jurors’ names, for the reasons discussed below, we reject this

argument and conclude that the Media-Intervenors have

standing.19 The Media-Intervenors do not have standing,

however, to challenge directly the constitutionality of the Board

of Judges’ order (Misc. 06-211), because the District Court did

not rely on this as a basis for its decision.20 See Dec. 21 Order

at 18 n.4. Second, the Government argues that as a prudential

matter, we should dismiss the Media-Intervenors’ appeal as

19

Contrary to the Government’s suggestion, the Media-

Intervenors are not seeking access to the questionnaires, so we

need not consider whether they have a “right” to access them for

standing purposes. Pursuant to Press-Enterprise I, the Media-

Intervenors have at least a presumptive right of access to voir

dire proceedings, so we conclude that they have standing to the

extent that they claim that they challenge the District Court’s

voir dire rulings on right of access grounds.

20

The District Court states later in its order that “in

accordance with Misc. Rule 06-211, the Court (and no counsel

or party) will neither read nor state the names or addresses of

prospective jurors in open court, nor will they provide the media

or any person or party access to the names or addresses of the

prospective or empaneled jurors.” Dec. 21 Order at 37. Despite

this, it appears that the District Court did not rely on Misc. 06-

211 even if it might have acted “in accordance with” it. Thus,

we will not consider the constitutionality of Misc. 06-211 in our

evaluation of the District Court’s order.

25

untimely because they did not appeal until December 2007,

shortly before trial was scheduled to begin in January 2008.

Government’s Response at 12–13. The Government asserts that

the District Court had made its intention to establish an

anonymous jury clear in July 2006, one-and-a-half years before

the Media-Intervenors appealed. The Media-Intervenors

respond that the July 2006 order did not clearly establish that the

jury would be anonymous, and in any event was not a final order

since it explicitly indicated that it was subject to modification.

Media’s Emergency Motion at 6–7. Because the media acts as

a surrogate for the public in asserting a right of access, see

Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980),

we decline to reject the appeal even assuming arguendo that the

Media-Intervenors were not diligent in asserting this right.

IV.

The Media-Intervenors seek reversal of the order because

it requires that the prospective and trial jurors be anonymous and

because it creates a voir dire process that relies solely on written

questionnaires without jurors being physically present in the

courtroom prior to reduction of the venire to a pool of forty.

Because they rely primarily on arguments that the First

Amendment creates a right of access that requires disclosure of

jurors’ names and the conducting of voir dire in open court,21 we

21

The Media-Intervenors also state that the common law

or the Third Circuit’s supervisory powers establish a right of

26

briefly review the right of access jurisprudence of the Supreme

Court and our court.

In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980), the Supreme Court22 held that “the right to attend

criminal trials is implicit in the guarantees of the First

Amendment” because “without the freedom to attend such trials,

which people have exercised for centuries, important aspects of

freedom of speech and ‘of the press could be eviscerated.’” 448

U.S. at 580 (quoting Branzburg v. Hayes, 408 U.S. 665, 681

access to criminal proceedings that includes disclosure of the

jurors’ names and voir dire in open court. Media’s Emergency

Motion at 10–11 (citing In Re The Baltimore Sun Co., 841 F.2d

74 (4th Cir. 1988) (common law); United States v. Criden, 675

F.2d 550 (3d Cir. 1982) (supervisory powers)). They do not,

however, make a serious effort to develop these alternative

grounds for a right of access aside from their citations to these

cases. Thus, we will focus only on their argument that a right of

access exists under the First Amendment.

22

Although no opinion in Richmond Newspapers

commanded a majority, seven of the eight justices who

participated in the case recognized that the First Amendment

embodies a right to attend criminal trials. See 448 U.S. at

558–81 (plurality opinion); id. at 584–98 (Brennan, J.,

concurring in judgment); id. at 598–601 (Stewart, J., concurring

in judgment); id. at 601–04 (Blackmun, J., concurring in

judgment).

27

(1972)). The Court said that this right encompassed both a

“right of access” and a “right to gather information,” and that

the media’s right is no less important than that of the general

public. Id. at 576–77 & n.12. In Press-Enterprise Co. v.

Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise I”), the

Supreme Court held that this right of access and to gather

information applies to voir dire in criminal trials as well. 464

U.S. at 508. The Court explained that “[t]he presumption of

openness may be overcome only by an overriding interest based

on findings that closure is essential to preserve higher values

and is narrowly tailored to serve that interest” and that “[t]he

interest is to be articulated along with findings specific enough

that a reviewing court can determine whether the closure order

was properly entered.” 464 U.S. at 510.

To determine what aspects of a criminal trial are subject

to a presumptive right of public access under the First

Amendment, the Court created the “experience and logic” test

in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9

(1986) (“Press-Enterprise II”). This test requires courts to

weigh two “complementary considerations.” Id. at 8. Under the

“experience” prong, a court considers “whether the place and

process have historically been open to the press and general

public.” Id. Under the “logic” prong, a court considers

“whether public access plays a significant positive role in the

functioning of the particular process in question” by, inter alia,

enhancing “both the basic fairness of the criminal trial and the

appearance of fairness so essential to public confidence in the

28

system.” Id. at 8–9 (citation omitted). If an aspect of a criminal

trial “passes these tests of experience and logic, a qualified First

Amendment right of public access attaches.” Id. at 9–10. As

Press Enterprise I made clear, even when such a right of access

exists, it is merely presumptive and may be overcome if the

District Court articulates specific facts that justify closure.

Whether there is a First Amendment right to have access

to a particular aspect of a judicial proceeding is a question of

law that we review de novo. See United States v. Antar, 38 F.3d

1348, 1356–57 (3d Cir. 1994). Outside of the First Amendment

context, we use an abuse of discretion standard to review a

District Court’s decisions regarding jury anonymity, United

States v. Scarfo, 850 F.2d 1015, 1023 (3d Cir. 1988), and its

conduct of voir dire, Butler v. City of Camden, 352 F.3d 811,

815 (3d Cir. 2003).23 To the extent that we consider whether the

District Court has articulated findings sufficient to overcome a

presumptive right of access under the First Amendment,

however, we conduct “substantially broader” review that

“includes independent consideration of the district court’s order

and the factual findings inferred from the evidence before it.”

In re Capital Cities/ABC, Inc., 913 F.2d 89, 92 (3d Cir. 1990)

(citing Bose Corp. v. Consumers Union, 466 U.S. 485, 499

23

We point out that the First Amendment right of access

that the Media-Intervenors assert is distinct from a defendant’s

Sixth Amendment right to challenge the use of an anonymous

jury.

29

(1984); New York Times Co. v. Sullivan, 376 U.S. 254, 285

(1964)); see also Antar, 38 F.3d at 1357; United States v. Smith,

787 F.2d 111, 113 n.1 (3d Cir. 1986).

V.

The Media-Intervenors argue that the First Amendment

requires disclosure of the jurors’ names prior to empanelment of

the jury in this case. This question is one of first impression in

our circuit.24 Following the framework established in Press-

24

Some have argued that the Supreme Court settled this

question in Press-Enterprise I by implying that jurors’ names

are an inseparable component of voir dire. Discussing a

potential conflict between the First Amendment presumption of

openness for voir dire, and jurors’ privacy interests, the Court

said:

When limited closure [of voir dire] is ordered, the

constitutional values sought to be protected by holding

open proceedings may be satisfied later by making a

transcript of the closed proceedings available within a

reasonable time, if the judge determines that disclosure

can be accomplished while safeguarding the juror’s valid

privacy interests. Even then a valid privacy right may

rise to a level that part of the transcript should be sealed,

or the name of a juror withheld, to protect the person

from embarrassment.

30

Enterprise II, we will examine first whether the “experience and

logic” test supports a conclusion that the presumptive right of

access to criminal proceedings includes a right of access to

jurors’ names. See Press-Enterprise II, 478 U.S. at 7–10. If so,

we will examine whether this presumption of openness is

overcome by particularized findings in the record “establishing

the existence of a compelling government interest,” and

“demonstrating that absent limited restrictions on the right of

access, that other interest would be substantially impaired.”

Antar, 38 F.3d at 1359 (citing Press-Enterprise II, 478 U.S. at

15).

A.

The first question before us is whether the “experience

464 U.S. at 512 (emphasis added). Arguably, this passage can

be “read to imply that jurors’ identities are part and parcel of

voir dire, and as such are governed by the same principles of

presumptive access.” Beacon Journal v. Bond, 781 N.E.2d 180,

192 (Ohio 2002) (quoting David Weinstein, Protecting a Juror’s

Right to Privacy: Constitutional Constraints and Policy

Options, 70 T EMPLE L. R EV. 1, 30 (1997)). See also Gannett

Co., Inc. v. State of Delaware, 571 A.2d 735, 755 (Del. 1990)

(Walsh, J., dissenting). Although this argument is plausible, we

will not conclude from a single passage of Supreme Court dicta

that the question is decisively settled. Rather, we treat the

question as unsettled and proceed with the “experience and

logic” analysis required by Press-Enterprise II.

31

and logic” test establishes the existence of a presumptive First

Amendment right of access to obtain the names of both trial

jurors and prospective jurors prior to empanelment of the jury.

We conclude that it does.

1. Experience

In Press-Enterprise I, the Supreme Court traced the

development of the jury selection process from the days “before

the Norman Conquest,” and concluded that “since the

development of trial by jury, the process of selection of jurors

has presumptively been a public process with exceptions only

for good cause shown.” 464 U.S. 505–08. Although this

historical evidence helps to show that voir dire is traditionally

a public process, it does not necessarily establish that the jurors’

names were also known to the public. The Media-Intervenors

point out that “there is no suggestion in . . . Press-Enterprise I

that the names of the jurors were not equally open to the public

as the other parts of the voir dire process.” Media’s Emergency

Motion at 11–12. This is true, but the opinion contains no

suggestion to the contrary, and we are reluctant to draw

conclusions solely based on the Court’s silence about a question

that was not before it.

Because juries have historically been selected from local

populations in which most people have known each other,

however, the traditional public nature of voir dire strongly

suggests that jurors’ identities were public as well. Case law

32

and legal commentary confirm this suggestion. See In Re

Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1998) (“When the

jury system grew up with juries of the vicinage, everybody knew

everybody on the jury . . . ,” so requiring the public disclosure of

the names of trial and prospective jurors upon empanelment is

“no more than an application of what has always been the law

. . . .”)25 ; David Weinstein, Protecting A Juror’s Right to

Privacy: Constitutional Constraints and Policy Options, 70

T EMP. L. R EV. 1, 30 (1997) (“The names of jurors have been

available to the public throughout the history of the common

law. . . . Moreover, the records of early jury trials evince little

concern for protecting juror anonymity.”); Robert Lloyd

Raskopf, A First Amendment Right of Access to a Juror’s

Identity: Toward a Fuller Understanding of the Jury’s

Deliberative Process, 17 P EPP. L. R EV. 357, 370 (1990) (“An

examination of historical tradition indicates that jurors’

identities and places of residence traditionally have been known

to the public.”). We find it significant that instances of courts

withholding jurors’ names appear to be very rare before the

1970s. See, e.g., Ephraim Margolin & Gerald F. Uelmen, The

Anonymous Jury: Jury Tampering By Another Name?, 9 C RIM

J UST. 14, 14 (1994) (“Juror anonymity is an innovation that was

unknown to the common law and to American jurisprudence in

25

The Fourth Circuit’s Baltimore Sun opinion ultimately

rests on the common law rather than on the First Amendment.

841 F.2d at 76 n.4. Nonetheless, its historical evidence is useful

for our analysis of the “experience” prong.

33

its first two centuries.”). Neither the District Court nor the

Government cite any such cases in their discussion of the

“experience” prong. See Dec. 21 Order at 26; Government’s

Response at 16–18. Moreover, none of the federal and state

opinions that analyze the “experience” prong have cited any pre-

1970s cases in which jurors’ names were not publicly known

prior to empanelment. See, e.g., United States v. Black, 483

F. Supp. 2d 618, 623–26 (N.D. Ill. 2007); Commonwealth v.

Long, 922 A.2d 892, 901–03 (Pa. 2007); Beacon Journal v.

Bond, 781 N.E.2d 180, 193 (Ohio 2002); Gannett Co., Inc. v.

State of Delaware, 571 A.2d 735, 743–48 (Del. 1990). Such

cases exist,26 but they are rare. 27 Based on the evidence before

26

For example, in Hamer v. United States, 259 F.2d 274

(9th Cir. 1958), the Ninth Circuit upheld a 1951 order of the

United States District Court for the Southern District of

California that prohibited revelation of the names and addresses

of jurors and prospective jurors to anyone, including the

defendant, prior to trial. Id. at 277–80.

27

We agree with the observation of the dissenting judge

in Gannett Co., 571 A.2d at 757–58, that even if a few cases

exist in which courts kept jurors’ names private, this would not

by itself prove that no tradition of openness exists. In that

judge’s words:

One cannot conclude with certainty that in the entire

history of Anglo-American jurisprudence an anonymous

jury was never impanelled [sic] prior to the 1970s. Yet

34

us, it appears that public knowledge of jurors’ names is a well-

established part of American judicial tradition.

The Government’s strongest argument that there is no

such tradition of openness is based on 28 U.S.C. § 1863(b)(7),

which instructs District Courts to put into effect a jury selection

plan that will

fix the time when the names drawn from the

qualified jury wheel shall be disclosed to parties

and to the public. If the plan permits these names

to be made public, it may nevertheless permit the

chief judge of the district court, or such other

district court judge as the plan may provide, to

keep these names confidential in any case where

the interests of justice so require.

28 U.S.C. § 1863(b)(7) (2000) (emphasis added). When

the majority appears to demand that degree of certainty

before it would be willing to recognize a tradition of

openness. Rather than requiring Gannett to show that a

strong presumption of openness exists, the majority

would ask it to prove that restrictions have never and

could never have been imposed. By contrast, the United

States Supreme Court has never required such an

impossible standard of proof.

571 A.2d at 757–58 (Walsh, J., dissenting).

35

Congress enacted this provision in 1968, the accompanying

legislative history explained that it “permits the present diversity

of practice to continue. Some district courts keep juror names

confidential for fear of jury tampering. Other district courts

routinely publicize the names.” See In re Globe Newspaper, 920

F.2d 88, 92 (1st Cir. 1990) (quoting H.R. Rep. No. 1076, 90th

Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 1792, 1801).

The Government argues that the statute and this passage from its

legislative history suggest that, at least as of 1968, no strong

tradition of juror name disclosure existed. Government’s

Response at 16–17.

We are reluctant to afford the relevant language of the

statute significant weight in this context. Nothing in the statute

itself indicates whether Congress believed that allowing federal

courts to withhold juror names was consistent with historical

practice or a significant departure. The House Report is more

explicit on this point, stating that the statute was merely

intended to preserve the “diversity of practice” that existed in

federal courts as of 1968. But the House Report is not an

official expression of Congress’s views, and its persuasive value

is limited because it provides no evidence to support its claim

that such a “diversity of practice” existed at the time. Moreover,

even if the House Report accurately characterizes the practices

of federal district courts in 1968, it is nonetheless consistent

with the proposition that withholding the names of jurors is a

relatively recent phenomenon. Given the Supreme Court’s

suggestion that a proper analysis of “experience” will evaluate

36

trial practices as they have developed over the past millennium

in courts at all levels, see Press-Enterprise II, 478 U.S. at 8, we

cannot discern whether jurors’ names have traditionally been

public based on an assertion in legislative history forty years ago

that some degree of “diversity of practice” existed in the federal

system.

The reports published in 1968 and 1980 by the

Committee on the Operation of the Jury System of the Judicial

Conference of the United States are not to the contrary. See

Report of the Committee on the Operation of the Jury System on

the “Free Press-Fair Trial” Issue, reprinted in 45 F.R.D. 391

(1968); Revised Report of the Judicial Conference Committee

on the Operation of the Jury System on the “Free Press-Fair

Trial” Issue, reprinted in 87 F.R.D. 519 (1980). Both of the

Committee’s reports recommend that District Courts adopt a

rule that allows judges, “in a case which is likely to attract

unusual publicity,” to issue a “special order” that “might be

addressed” to a variety of subjects, including a direction that

“the names and addresses of jurors or prospective jurors not be

publicly released except as required by statute.” 28 45 F.R.D. at

28

The dissent states that “[t]he Committee recommended

that each District Court adopt a rule providing for special

measures to be taken in cases likely to receive significant media

attention, including” a direction that jurors’ names and addresses

be withheld. Dissent, infra, at 26. The dissent’s language

(“special measures to be taken”) suggests that the Committee

37

409–11; 87 F.R.D. at 529–31. We do not dispute that a trial

judge has historically had the power to issue such an order in

special cases. We conclude only that a tradition of openness

exists and that anonymous juries have been the rare exception

rather than the norm.

In short, we believe that the “experience” prong of the

Press-Enterprise II test favors a conclusion that jurors’ names

have traditionally been available to the public prior to the

beginning of trial. If any significant evidence to the contrary

exists, we have not discovered it in our review of case law and

commentary on this question.

2. Logic

We next consider whether presumptive public access to

jurors’ names prior to empanelment “plays a significant positive

role in the functioning” of the criminal justice system. See

Press-Enterprise II, 478 U.S. at 8. As the First Circuit

explained in In re Globe Newspaper Co., the purposes served by

the openness of trials and voir dire generally are also served by

recommended that District Courts adopt a rule requiring judges

to withhold jurors’ names and addresses in high-profile cases.

For the sake of clarity, we note that the Committee said that

“[s]uch a special order might be addressed to some or all of the

following subjects,” including the withholding of names and

addresses. 45 F.R.D. at 409 (emphasis added).

38

public access to the jurors’ names:

Knowledge of juror identities allows the public to

verify the impartiality of key participants in the

administration of justice, and thereby ensures

fairness, the appearance of fairness and public

confidence in that system. It is possible, for

example, that suspicions might arise in a

particular trial (or in a series of trials) that jurors

were selected from only a narrow social group, or

from persons with certain political affiliations, or

from persons associated with organized crime

groups. It would be more difficult to inquire into

such matters, and those suspicions would seem in

any event more real to the public, if names and

addresses were kept secret. Furthermore,

information about jurors, obtained from the jurors

themselves or otherwise, serves to educate the

public regarding the judicial system and can be

important to public debate about its strengths,

flaws and means to improve it. . . . Juror bias or

confusion might be uncovered, and jurors’

understanding and response to judicial

proceedings could be investigated. Public

knowledge of juror identities could also deter

intentional misrepresentation at voir dire.

920 F.2d at 94. Public access to jurors’ names is not without

39

risks. First, when the names of jurors are public, friends or

enemies of a criminal defendant may find it easier to influence

the jury’s decision. In an extreme case, this could take the form

of threats to the jurors or their family members. Second, if

jurors know that the media will attempt to contact them or their

families, they may resist serving on high-profile cases at all

because they fear that their privacy will be threatened. Third,

public knowledge of jurors’ identities might actually increase

the risk of misrepresentation at voir dire, because some jurors

will be tempted to lie in order to avoid the disclosure of

embarrassing information.29

Despite these risks, we believe that the judicial system

benefits from a presumption of public access to jurors’ names.

A criminal jury trial vests twelve randomly-selected citizens

with the power to decide the fate of someone who the state has

targeted for prosecution. We cannot reconcile the Supreme

29

Although these risks may be greater when the jurors’

identities are made public during trial, they often exist even

when the jurors’ identities will remain secret until the end of

trial. First, jurors might be reluctant to convict a defendant who

is known to be dangerous for fear of post-trial retaliation from

the defendant’s friends. Second, jurors might be reluctant to

serve on a jury at all if they think that they will be the subject of

media attention post-trial. Third, jurors might lie during voir

dire because they fear that, after the trial, sensitive information

will be revealed.

40

Court’s conclusion that the public has the right to see the

process in which this power is exercised (Richmond

Newspapers) and to see the process that selects those who will

exercise the power (Press-Enterprise I), with the conclusion that

the public has no right to know who ultimately exercises this

power. As the First Circuit said, “the prospect of criminal

justice being routinely meted out by unknown persons does not

comport with democratic values of accountability and

openness.” Globe Newspaper, 920 F.3d at 98. Of course, in a

given case, a risk of jury tampering or excessive media

harassment may exist. But we are satisfied that district judges

are well-positioned to address these risks on a case-by-case

basis, and in such cases, to make particularized findings on the

record “establishing the existence of a compelling government

interest” and “demonstrating that absent limited restrictions on

the right of access, that other interest would be substantially

impaired.” Antar, 38 F.3d at 1359 (citing Press-Enterprise II,

478 U.S. at 15). We do not consider these risks so pervasive as

to overcome the benefits of public access. We must strike the

balance in favor of presumptive public access to jurors’

identities.30

30

We acknowledge that our conclusion in the instant case

may be inconsistent with our dicta in United States v. Scarfo,

850 F.2d 1015 (3d Cir. 1988), in which we said that “anonymity

would seem entirely consistent with, rather than anathema to,

the jury concept” and that “the probable merits of the

anonymous jury procedure are worthy, not of a presumption of

41

Finally, we believe that this presumptive First

Amendment right of access to the identities of jurors attaches no

later than the swearing and empanelment of the jury.

Corruption and bias in a jury should be rooted out before a

defendant has to run the gauntlet of trial. Public knowledge of

the jurors’ identities is desirable in part because it can deter such

corruption and bias. The value of any right of access, then, can

only be diminished after trial has begun, and diminished even

further once a verdict has been rendered by a corrupt or biased

jury.31 We acknowledge that, in the words of the First Circuit,

irregularity, but of disinterested appraisal by the courts.” 850

F.2d at 1023. Unlike the instant case, Scarfo did not involve a

First Amendment challenge and did not apply the Press-

Enterprise II test to determine whether jurors’ names should be

presumptively public. We do not challenge Scarfo’s conclusion

that a district court’s decisions about anonymity should be

reviewed for abuse of discretion when no one has raised a valid

First Amendment challenge. See id.

31

The dissent claims that “[c]orruption could just as

easily be rooted out post-trial as it could pre-trial.” Dissent,

infra, at 35. Although we agree that corruption could be rooted

out post-trial, it is far more desirable to discover it pre-trial. It

is neither fair nor efficient to subject a defendant to a second

trial because the jury in the first trial was tainted. Moreover,

post-trial discovery of corruption shakes public confidence in

the validity and finality of criminal jury verdicts. Of course, we

do not suggest that a public right of access to jury names is the

42

“stronger reasons to withhold juror names and addresses will

often exist during trial than after a verdict is rendered.” Globe

Newspaper, 920 F.2d at 91 (emphasis in original). But we do

not believe that these reasons are so compelling that they negate

altogether the existence of a First Amendment right of access to

the names during trial. Rather, a presumption of openness exists

at the latest at the time of the swearing and empanelment of the

jury, regardless of the fact that a judge may find “stronger

reasons” for overcoming this presumption during trial.

B.

We now consider whether the District Court articulated

the necessary findings and consideration of alternatives to

overcome the presumption that the jurors’ names should be

publicly available. It provided three reasons for exercising its

discretion 32 to empanel an anonymous jury; we discuss these

most effective method for uncovering corruption or bias in jury

selection before a trial begins. Voir dire, conducted by the

parties and the court, has traditionally been the primary method

for accomplishing this. Nonetheless, we believe that public

access plays an important role in the criminal justice system by

allowing the public to verify, before a trial has begun, that the

trial will proceed with an impartial jury.

32

The District Court found that the media had no First

Amendment right to obtain the jurors’ names, and therefore

described its decision to withhold the names as an exercise of

43

reasons in turn.

First, the District Court said that withholding the jurors’

names is necessary to prevent the media from publishing stories

about them:

First, from the prospective [sic] of the media,

because the media requests the names and

addresses of the potential jurors, if those requests

were granted, there is certainly a real potential

that the media would use those names (and

addresses) to develop and publish stories about

the prospective jurors, coupled with possible

interviews of the potential jurors’ family

members, co-workers, and friends. The media

obviously does not want the jurors’ names as an

intellectual exercise to file in some reporter’s

electronic desk drawer. If they want the names,

they want to do “reporting.” If the numerous

excellent “investigatory” reporters in Western

Pennsylvania obtain the names and home address

of the jurors, detailed “background” stories,

before and during the trial, are likely. The Court

thus has serious concerns that the dissemination

of stories about the prospective jurors (and

especially the empaneled jury) would have a real

discretion that balanced “competing constitutional interests.”

Dec. 21 Order at 26–27.

44

impact on the jurors’ willingness to serve and, if

selected, on the jurors’ abilities to remain fair,

unbiased, and focused on this case.

Dec. 21 Order at 28–29. The prospect that the press might

publish background stories about the jurors is not a legally

sufficient reason to withhold the jurors’ names from the public.

Although such stories might make some jurors less willing to

serve or more distracted from the case, this is a necessary cost

of the openness of the judicial process.33 The participation of

jurors “in publicized trials may sometimes force them into the

limelight against their wishes,” but “[w]e cannot accept the mere

generalized privacy concerns of jurors” as a sufficient reason to

conceal their identities in every high-profile case. See Globe

Newspaper, 920 F.2d at 98. The District Court has not

established that there is anything unusual about this case, aside

from a locally prominent defendant, that makes the prospective

jurors’ hypothetical privacy concerns more compelling than

usual. The District Court’s statements amount to the sort of

“conclusory and generic” finding that we have held to be

33

The District Court appears to believe that no good can

come from any story published about a juror. As we noted

above, however, press investigation of jurors might be beneficial

in some cases by, for example, revealing possible sources of

juror bias or deterring misrepresentation during voir dire.

45

insufficient to overcome the presumption of openness.34 See

Antar, 38 F.3d at 1363.

Second, the District Court cited the possibility that

friends or enemies of Wecht would attempt to influence the

jurors:

Secondly, from the perspective of the defendant,

if there is media coverage disseminating the

names (and addresses) of the prospective jurors,

that coverage would undoubtedly increase the risk

of intimidation of those jurors as there is a

probability that other individuals (not including

the defendant himself) would contact those jurors

in an attempt to either hurt or bolster defendant’s

case. Just like the district court in the Scarfo case

had concerns that persons hostile to defendant

might have been inclined to harass the jurors, this

Court also has real concerns that persons who are

either hostile to, or enamored with, defendant

would attempt to influence the jurors.

34

Taken to its logical conclusion, the District Court’s

argument would allow judges to withhold the names of jurors in

every case that might attract media attention. In fact, aside from

the reference to “Western Pennsylvania” reporters, any other

court could copy the District Court’s statement verbatim to

justify an anonymous jury in any high-profile case.

46

Dec. 21 Order at 29. This explanation is insufficient to justify

withholding the names in this case. Again, this is a “conclusory

and generic” finding that cannot overcome the presumption that

jurors’ names are public information. In fact, the District

Court’s reasoning would justify anonymity in virtually every

jury trial, whether or not it attracts media attention, since almost

all defendants have friends and enemies who might be inclined

to influence jurors. The District Court’s citation to United

States v. Scarfo, 850 F.2d 1015 (3d Cir. 1988), is revealing. In

Scarfo, we noted that the defendant belonged to an “organized

crime group,” had ordered “several murders” (including those

of a judge and a prospective witness), and had attempted to

bribe judges. Id. at 1017. In short, specific reasons existed in

Scarfo to believe that friends of the defendant would threaten or

bribe the jurors. The District Court in this case has not provided

anything closely resembling the specific reasons offered in

Scarfo.35

35

The District Court said in a footnote that it was “aware

of the arguments made by the government regarding defendant’s

alleged witness intimidation,” and referred to a letter that two

individuals sent to the court asking that the jury be anonymous

in light of threatening letters that they had received from Wecht.

Dec. 21 Order at 30 n.9. But the District Court denied that it

was relying on these alleged threats “as the basis for its decision

to empanel an innominate jury,” id., and did not include any

findings of fact about them in the record. Thus, even assuming

arguendo that these alleged threats provide a justification for an

47

Finally, the District Court quoted extensively from a

document that Wecht filed that purports to establish that he has

acquired many enemies. This document points out that Wecht

“has made countless cause and manner-of-death determinations”

as a witness in “hundreds of homicide and other criminal trials,”

some of which involve “the most serious offenders of

society—violent criminals,” and that he remains a witness in

“pending criminal homicide trials.” Dec. 21 Order at 29

(quoting Defendant’s Brief in Support of Motion For

Clarification And/Or Modification of Trial Procedures and

Scope of Exhibit and In Limine Rulings at 5, United States v.

Wecht, No. 2:06-cr-00026-AJS (W.D. Pa. Dec. 4, 2007)

(“Defendant’s Brief”)). In addition, the document says, he has

participated in “high-profile” civil cases, including wrongful

death actions. Id. at 30 (quoting Defendant’s Brief at 6). As a

result, many people “may harbor ill will” or “bear animus”

toward Wecht. Id. (citing Defendant’s Brief at 5–6). Moreover,

the document says that Wecht’s son, as a “sitting family court

judge in Allegheny County . . . [,] makes judicial decisions that

affect people in the most emotional and passionate areas of their

lives,” and that some of these people “may feel wronged as a

result of his judicial decisions.” Id. The document points out

that “[t]hose individuals may find their way into Dr. Wecht’s

anonymous jury, we cannot rely on them because the District

Court was required to place “findings on the record which

clearly established that closure was necessary to protect an

overriding interest.” Antar, 38 F.3d at 1361.

48

pool of jurors.” Id.

The District Court cited the statements in this document

to support its conclusion that, unless the jury is anonymous,

Wecht’s many enemies might attempt to influence jurors. (The

District Court also suggests, without citing any evidence, that

“presumably ‘unknown’ friends” of Wecht might also attempt

to influence the jury. Dec. 21 Order at 30.) Wecht made these

statements, however, in support of the opposite conclusion: that

the jury should not be anonymous because the defense and the

media must be able to ensure that Wecht’s enemies do not enter

the jury pool without being detected. Defendant’s Brief at 5–11.

As we have explained, one of the purposes of access to jurors’

names is to make this type of investigation possible.36

Moreover, the quoted statements consist largely of speculation

that people might be hostile toward Wecht; they describe no

specific instances in which Wecht’s enemies or friends had

36

Voir dire may detect prospective jurors with obvious

connections to Wecht, even if they are anonymous. But if we

accept Wecht’s assertion that he has incurred the animus of

countless “friends” of those who were affected adversely by his

participation in trials, some of these connections might not be

obvious. Moreover, any person who feels passionately enough

about Wecht to threaten jurors would presumably be willing to

lie about his or her connections to Wecht during voir dire,

protected by anonymity, in order to earn a spot on Wecht’s jury.

49

threatened or harassed anyone. The mere fact that people might

have passionate opinions about a defendant is not enough to

justify an anonymous jury. The District Court must articulate

some reason to conclude that the risks that such people pose to

the jurors are serious and specific enough to justify depriving

the public (and, in this case, the defendant) of knowledge of the

jurors’ identities. Because the District Court did little more in

this case than quote factual assertions that Wecht offered in

opposition to jury anonymity, we conclude that it did not

overcome the presumption in favor of disclosure.

VI.

The Media-Intervenors also challenge the voir dire

procedure adopted by the District Court. They contend that by

using Juror Questionnaires instead of in-court voir dire to make

“for cause” determinations until the venire has been reduced to

forty prospective jurors, the District Court violates their First

Amendment right of access to voir dire proceedings.37 They do

not request immediate access to the actual questionnaires but

instead demand that the District Court conduct voir dire in open

court in addition to using the questionnaires. Media’s

Emergency Motion at 4 n.1. According to the Media-

37

We need not conduct an “experience and logic” inquiry

into whether a public right of access to voir dire proceedings

exists, because Press-Enterprise I established that this right

exists. 464 U.S. at 508.

50

Intervenors, they seek in-court voir dire in order to allow public

access to “information traditionally revealed during voir dire

(juror names, area where a juror lives, employment, family,

etc.).” Id. at 16.

We reject the Media-Intervenors’ request for two related

reasons. First, unlike the Media-Intervenors’ request for the

names of prospective jurors, the request for in-court voir dire is

not merely a request for access to information, but a request that

the District Court conduct a specific procedure and that the

Media-Intervenors have access to that procedure. It is well-

established that “the method of conducting the voir dire is left

to the sound discretion of the district court.” Waldorf v. Shuta,

3 F.3d 705, 710 (3d Cir. 1993). In a voir dire process involving

400 prospective jurors, we believe that a trial judge has

discretion to conduct part of the process exclusively based on

written questionnaires, so long as it is consistent with

established procedural rules (e.g., F ED. R. C RIM. P. 24). Second,

we believe that our order requiring the District Court to release

the names of prospective jurors grants the Media-Intervenors

most of the relief they seek. Because the prospective jurors will

not be anonymous, the Media-Intervenors will have available

information to investigate and detect possible improper bias in

“for cause” determinations, should they elect to do so.

VII.

In sum, we have articulated in this opinion the reasons

51

supporting our January 9 Order vacating the provisions of the

District Court’s order that restricted access of Media-Intervenors

and defense counsel38 to the jurors’ names.

38

Suffice it to say, the fact that the accused here supports

the Media-Intervenors’ appeal—which often is not the case, see,

e.g., ABC, Inc., 360 F.3d at 98–99; Black, 483 F. Supp. 2d at

620—bolsters the result we reach today.

52

United States v. Wecht, No. 07-4767

VAN ANTWERPEN, Circuit Judge, concurring in part and

dissenting in part.

Although I seldom find it necessary to dissent, I write

separately today because the Majority’s opinion ignores a

substantial volume of case law, statutes passed by Congress, and

the established practices of many of this country’s courts.

Today’s opinion will undoubtedly cause significant problems

and delays in our district courts if the Majority’s expansion of

the collateral order doctrine and its announcement of a new

constitutional right are permitted to stand.

I dissent from the Majority’s holding that this Court has

jurisdiction at this time to entertain the Media-Intervenors’

motion and that the Media-Intervenors are entitled, as a matter

of constitutional right, to the names of all of the prospective and

trial jurors prior to the empanelment of the trial jury.39

39

In this opinion, I adopt the Majority’s use of the terms

“prospective jurors,” which refers to the members of the venire,

and “trial jurors,” which refers to the members of the venire who

are chosen to compose the actual trial jury.

I also note that the jury in this case is not “anonymous,”

as the parties will know everything about the jurors, including

their names and other personal information, and the public will

know everything about the jurors except their names. The

53

Additionally, I disagree with the remedy fashioned by the

Majority, as in my opinion it amounts to impermissible micro-

management of procedures and decisions that are properly

delegated to the discretion of district judges.40

I.

According to the Majority, this Court has jurisdiction

District Court was therefore correct in referring to this jury as

“innominate,” rather than “anonymous.” Furthermore, there has

been no indication that the trial jurors’ names will not be

released following the trial.

40

I join the Majority’s holding that the District Court’s

use of the questionnaires for jury selection is permissible. I am

also of the view that the names of those prospective jurors not

selected for jury service should be disclosed once the trial jury

is seated. Obviously, such disclosure is contingent on the ability

of the parties to keep the names of the prospective jurors

confidential, and the District Court should take the actions

necessary to ensure the parties do keep the names confidential.

The time and manner of disclosure is within the discretion of the

District Court, however; it is not constitutionally mandated.

Additionally, the unique circumstances of this case likely justify

withholding the names of the trial jurors at least until the end of

the trial. Insofar as the Majority opinion suggests that the

District Court has the discretion to make these disclosures, I join

that part of the opinion.

54

over the Media-Intervenors’ motion by virtue of the collateral

order doctrine. In light of the narrow nature of the collateral

order doctrine and the narrow issue presented in the instant case,

I respectfully disagree.

A.

Collateral orders, those orders that “finally determine

claims of right separable from, and collateral to, rights asserted

in the action,” are a narrow exception to the rule of finality, 41

and are thus reviewable on an interlocutory basis. Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see

also Bines v. Kulaylat, 215 F.3d 381, 384 (3d Cir. 2000). This

Court considers a district court’s decision to be a reviewable

collateral order if it meets all of the criteria set forth by the

Supreme Court: (1) the order must “conclusively determine the

disputed question;” (2) the order must “resolve an important

issue completely separate from the merits of the action;” and (3)

41

As a general rule, this Court has jurisdiction to hear

appeals only from final decisions of the district courts. See 28

U.S.C. § 1291; see also Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 545 (1949) (noting that 28 U.S.C. § 1291

“provides . . . for appeal only ‘from all final decisions of the

district courts,’ except when direct appeal to this Court is

provided”); Bines v. Kulaylat, 215 F.3d 381, 384 (3d Cir. 2000)

(“As a general rule, we have no jurisdiction under 28 U.S.C. §

1291 to review interlocutory orders. . . .”).

55

the order must “be effectively unreviewable on appeal from a

final judgment.” See Coopers & Lybrand v. Livesay, 437 U.S.

463, 468 (1978); see also Youngblood v. DeWeese, 352 F.3d

836, 838 n.1 (3d Cir. 2003).

As both the Supreme Court and this Court have

emphasized on numerous occasions, the collateral order doctrine

should be construed narrowly, lest this exception to the final

judgment rule swallow the rule itself. See, e.g., Digital Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)

(describing the collateral order doctrine as “narrow” and

“stringent”); We, Inc. v. City of Philadelphia, 174 F.3d 322, 324

(3d Cir. 1999) (“We have followed [the Supreme Court’s]

admonition and consistently construed the collateral order

exception narrowly. . . .”).42 In defining what orders fall within

the narrow scope of the collateral order doctrine, the Supreme

42

Judge Aldisert also expressed concern with the ever-

expanding scope of the collateral order doctrine in Borden Co.

v. Sylk, 410 F.2d 843, 845-46 (3d Cir. 1969): “We have detected

what appears to be an irresistible impulse on the part of

appellants to invoke the ‘collateral order’ doctrine whenever the

question of appealability arises. Were we to accept even a small

percentage of these sometime [sic] exotic invocations, this court

would undoubtedly find itself reviewing more ‘collateral’ than

‘final’ orders.” The flood of motions related to this case that we

have faced and continue to face bears witness to the wisdom of

Judge Aldisert’s words.

56

Court noted that the collateral order doctrine’s “reach is limited

to trial court orders affecting rights that will be irretrievably lost

in the absence of an immediate appeal.” Richardson-Merrell,

Inc. v. Koller, 472 U.S. 424, 430-31 (1985).

In criminal cases, this Court must be even more vigilant

in ensuring that the collateral order exception is construed

narrowly, as we have been cautioned by the Supreme Court to

apply the collateral order exception “with the utmost strictness”

in such cases. See Midland Asphalt Corp. v. United States, 489

U.S. 794, 799 (1989); Flanagan v. United States, 465 U.S. 259,

265 (1984). Such a strict construction is necessary to avoid

delays due to piecemeal appellate litigation, as these delays may

work to the detriment of the rights of the defendant or prejudice

the prosecution’s ability to prove its case. See United States v.

MacDonald, 435 U.S. 850, 853-54 (1978) (noting that “[t]he

rule of finality has particular force in criminal prosecutions

because ‘encouragement of delay is fatal to the vindication of

the criminal law’”); see also Gov’t of Virgin Islands v. Rivera,

333 F.3d 143, 150 n.16 (3d Cir. 2003) (“In the context of a

criminal case, the collateral order doctrine is used sparingly

because of the need to effectively and efficiently conclude

criminal proceedings, without piecemeal interruptions.”).

Accordingly, interlocutory appeals in criminal cases are

permitted under the collateral order doctrine only in the most

rare and exceptional circumstances. See Flanagan, 465 U.S. at

270.

57

B.

In light of this Court’s practice of construing the

collateral order doctrine narrowly, the appeal of the District

Court’s December 21, 2007 order (“December 21 Order”),

which set forth the procedures for selecting the jury, is not one

of the “rare” circumstances in which this Court should grant

interlocutory review. Appellate review is not justified at this

time because the District Court’s order does not satisfy either the

first or the third prong of the Coopers & Lybrand test.43 See We,

174 F.3d at 324 (“If the order at issue fails to satisfy any one of

[the Coopers & Lybrand] requirements, it is not an appealable

collateral order.”).

1.

The first prong of the Coopers & Lybrand test requires

that the order at issue “conclusively determine the disputed

question.” See Coopers & Lybrand, 437 U.S. at 468. As the

Majority correctly notes, this prong of the test is akin to the

requirement that the order being appealed be a final order; we

will not review an order that is “tentative, informal or

incomplete.” See Cohen, 337 U.S. at 546. The District Court’s

December 21 Order sets forth what it considered to be the

43

The Majority’s thorough analysis of the second prong

is correct because the issue of jury selection is sufficiently

separate from the merits to satisfy this prong.

58

finalized procedures for selecting the jury. Although the

December 21 Order purports to be a “final order” on the issue of

jury selection, it was only one step in a process of modifications

and could have been further modified by the District Court up

until the time the procedures were actually implemented. Such

modifications of trial procedures are clearly within the ample

discretion of the District Court. See, e.g., Waldorf v. Shuta, 3

F.3d 705, 710 (3d Cir. 1993) (noting that “the method of

conducting the voir dire is left to the sound discretion of the

district court,” and that “[b]ecause voir dire determinations ‘rely

largely on . . . immediate perceptions,’ district courts have been

awarded ample discretion in determining how best to conduct

the voir dire”). Thus, the December 21 Order did not become a

“final order” for the purposes of our review until the process set

forth in the Order was actually implemented.44

44

At the very least, the District Court should have been

given the opportunity to make further modifications in light of

the Media-Intervenors’ arguments. A better method for

challenging these procedures prior to empanelment would have

been by way of a stay with an initial application to the District

Court. See Fed. R. App. P. 8(a). The Media-Intervenors’

motion to this Court was for such a stay, or, in the alternative,

for summary reversal. Because the Majority granted reversal, it

considered the motion for a stay to be moot. As explained in

this opinion, reversal of the District Court is inappropriate at this

time. Likewise, the motion for a stay of jury selection should

have been denied, as the Media-Intervenors did not make that

motion before the District Court, nor did they sufficiently allege

59

As the Majority correctly suggests, the mere fact that an

order could have been modified does not mean the order is not

final. See Maj. Op., supra, at 19 n.14; see also Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 11-13 &

n.14 (1983). As the Supreme Court stated in Mercury

Construction, “[t]he reasoning of Coopers & Lybrand [that

some orders that may be subject to revision are not final orders]

does not reach all pretrial orders that are formally subject to

revision, but only those as to which some revision might

reasonably be expected in the ordinary course of litigation.” See

id. at 12 n.14 (emphasis added). Given that district courts have

significant discretion in fashioning the manner in which a trial

will be conducted, it is entirely reasonable and foreseeable that

orders establishing jury selection and trial procedures will be

subject to modification at any time and for any reason prior to

the time the trial actually commences. Thus, the fact that the

District Court issued its December 21 Order relating to jury

selection almost three weeks before jury selection was set to

begin belies the Majority’s contention that this order was set in

stone.

Although the Majority suggests that the record does not

reveal any evidence that the District Court contemplated

modifying the Order between December 21 and the beginning

of jury selection, the record is replete with evidence that the

why such an application to the District Court would have been

impracticable. See Fed. R. App. P. 8(a).

60

District Court had previously been more than accommodating in

developing and modifying the procedures for jury selection from

the time it first announced those procedures on July 14, 2006.45

Because the District Court worked with the parties to develop

the jury selection procedures, and because the District Court had

significant discretion to modify the order prior to jury selection,

it is not reasonable to presume that the December 21 Order was

45

Between July 14, 2006, the date of the original jury

selection order, and December 21, 2007, the date of the most

recent jury selection order, multiple changes were made to the

prescribed process, including: having the Court Administrator,

as opposed to the Judge, sign the letter to prospective jurors

following an objection by Wecht; having the jurors complete the

forms in court, as opposed to at home; including in the District

Court’s initial order (July 14, 2006) a notation that the proposed

plan was subject to modification; opening up the process to the

public by including in-court voir dire once the venire of 400 has

been culled down to 40; releasing the jury questionnaires to the

media following the trial; and accommodating the numerous

questions submitted by the parties for inclusion in the

questionnaire, which was developed during numerous

conferences with the parties. In short, the facts do not support

the contention that the District Court is so set in its procedures

that contemplating modification would be unreasonable. There

is nothing on the record or discussed in the Media-Intervenors’

brief that suggests the District Court would not have considered

accommodating a request to further modify the procedures, had

such a motion actually been made.

61

the final word on jury selection. If anything, the record

indicates that had the Media-Intervenors or the defendant first

attempted to seek relief from the District Court, they may well

have been successful. Additionally, if the Media-Intervenors or

the defendant had petitioned the District Court for modification

of the December 21 Order, instead of immediately coming to

this Court for relief, there would at least be some evidence on

the record as to the District Court’s inclination to modify the

Order. No such attempt was made, however, and thus no

evidence exists as to whether the District Court contemplated

modification of the December 21 Order.46 See Maj. Op., supra,

at 19 n.14.

Because the Media-Intervenors have not met their burden

of demonstrating that the December 21 Order “conclusively

determined” the procedures for selecting the jury,47 they cannot

46

The Majority suggests that the December 21 Order was

final because the District Court ruled against the Media-

Intervenors on their previous objections to the Order. This fact

alone does not demonstrate that the District Court did not

contemplate any modification to the December 21 Order; it only

suggests that the District Court was unlikely to accommodate

the specific modifications requested by the Media.

47

The party asserting this Court’s jurisdiction over an

appeal or a motion always has the burden of demonstrating that

such jurisdiction exists. See, e.g., Samuel-Bassett v. Kia Motors

America, Inc., 357 F.3d 392, 396 (2004) (“The party asserting

62

satisfy the first prong of the Coopers & Lybrand test at this time.

jurisdiction bears the burden of showing that at all stages of the

litigation the case is properly before the federal court.”). Thus,

the Media-Intervenors must point to some evidence that the

District Court did not contemplate modification of any aspect of

the December 21 order, other than suggesting that the District

Court was unlikely to modify the December 21 Order merely

because it had ruled against the Media-Intervenors in the past.

As noted above, the Media-Intervenors cannot satisfy their

burden of demonstrating that jurisdiction exists. The evidence

that the District Court had previously modified the opinion

multiple times and the fact that the District Court has the

discretion over trial procedures suggest that it is unreasonable to

presume that the December 21 Order was final at any point prior

to the beginning of jury selection.

As the Majority correctly notes, the Government

suggested that it was not going to contest the first prong of the

Press-Enterprise II test. See Maj. Op., supra, at 19-20.

However, as the Majority correctly notes, this failure to contest

that issue is in no way dispositive of the issue before us: whether

collateral order jurisdiction is appropriate. Id. at 20 n.15. The

Government’s response should not be read in such a way as to

construe its failure to explicitly contest the issue as a concession.

See Government’s Response at 8-9 (noting that “the order

regarding jury selection may satisfy the first requirement of the

collateral order doctrine”) (emphasis added). There are any

number of reasons why the Government might choose not to

contest this issue. Thus, although the Government’s failure to

explicitly brief this issue may be “notable,” as the Majority

suggests, it is only mildly so.

63

Accordingly, this Court does not presently have jurisdiction to

entertain the Media-Intervenors’ motion.

2.

As to the third prong of the Coopers & Lybrand test, that

the right at issue be effectively unreviewable upon appeal, the

Majority holds that it would be “impossible” to vindicate the

public’s right of access to the proceedings. See Maj. Op., supra,

at 17. The Majority holds that “the potential harm caused by an

improper order restricting the public’s right to access to a

criminal trial is not adequately redressable on appeal after final

judgment, regardless of the trial’s outcome.” See id. As

discussed further in Part II, infra, the Majority characterizes the

right at issue in this appeal too broadly when it suggests this

case is about the right to access the proceedings in general.

What is at issue here is the right to know the names of the

prospective and trial jurors prior to the time the jury is

empaneled. The District Court’s December 21 Order already

gives the Media-Intervenors access to all other parts of the jury

selection process. From the standpoint of jurisdiction, neither

the Media-Intervenors nor the Majority today have explained

why the public’s interest in determining “the impartiality of key

participants in the administration of justice” would be

impossible to satisfy were all the names of the prospective and

trial jurors not disclosed until after the trial is over, much less

why withholding only the names of the jurors serving in the trial

would pose such a problem. See In re Globe Newspaper Co.,

64

920 F.2d 88, 94 (1st Cir. 1990).

As the Supreme Court has noted, the rights that are

generally appealable on an interlocutory basis in criminal

matters are those rights “the legal and practical value of which

would be destroyed if [they] were not vindicated before trial.”

See MacDonald, 435 U.S. at 860 (emphasis added). Such rights

must be so important that they would be “‘lost, probably

irreparably,’ if review had to await final judgment.” See Abney

v. United States, 431 U.S. 651, 658 (1977) (quoting Cohen, 337

U.S. at 546) (emphasis added); see also Flanagan, 465 U.S. at

265 (“The importance of the final judgment rule has led the

Court to permit departures from the rule ‘only when observance

of it would practically defeat the right to any review at all.’”).

The mere fact that contemporaneous disclosure of the names of

the prospective and trial jurors would be more convenient for

the Media-Intervenors does not, by itself, elevate the right to

know and force the disclosure of the names of the prospective

and trial jurors to such a level that the right would be destroyed

or irrelevant after the trial is complete.

The issue is not, as the Majority repeatedly suggests,

about the “value” of the right to know the names of the

prospective and trial jurors 48 or whether that right would be

48

The fact that the media may be better able to report on

trial proceedings were they given contemporaneous access to the

names of the jurors, as opposed to being given access at the

65

“seriously undermined.” 49 See Maj. Op., supra, at 18. Nor has

the District Court here barred the courtroom doors to the Media-

Intervenors or sealed transcripts of court proceedings, as was the

situation in many of the right-of-access cases cited in the

Majority’s opinion. See, e.g., Press-Enterprise Co. v. Superior

Court of California, 464 U.S. 501, 503-04 (1984) (“Press-

conclusion of the trial, is not a sufficient reason to support the

Majority’s arbitrary line. See United States v. Doherty, 675 F.

Supp. 719, 725 n.7 (D. Mass. 1987) (“The Globe [newspaper],

however, advances the absolutist view that it has a right to

immediate access in order to satisfy the public’s interest at a

time when it is focused on the most dramatic stage of a jury trial

- the return of the verdict. With respect, this is little more than

an argument that it wants the information to sell more papers.

While this is hardly an ignoble end, it flies in the face of the

historic traditions of the courts [and] does nothing to enhance

the jury system. . . .”).

49

The Majority quotes the Seventh Circuit’s decision in

Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893,

897 (7th Cir. 1994), for the proposition that denying

contemporaneous access to court records may have the same

effect as a complete bar to access. See Maj. Op., supra, at 18.

Grove Fresh, unlike the instant case, involved a district court’s

decision to completely seal all court records in the case before

it. Such a complete bar to the media’s access to court

documents and proceedings is distinguishable from the case

before us, as here the Media-Intervenors have access to a great

deal of information relating to jury selection.

66

Enterprise I”); Globe Newspaper Co. v. Superior Court for

Norfolk County, 457 U.S. 596, 598-99 (1982); Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 559-61 (1980);

ABC, Inc. v. Stewart, 360 F.3d 90, 93 (2d Cir. 2004); United

States v. Antar, 38 F.3d 1348, 1350-51 (3d Cir. 1994) . The

only question underlying our ability to exercise our jurisdiction

is whether the right of the public to know the names of the

prospective or trial jurors would be virtually impossible to

exercise were the names disclosed after the trial, as opposed to

before it. The answer to that question is undoubtedly “no,” as

nothing in the case law or commentary cited by the Majority

indicates that knowledge of the names of prospective or trial

jurors is only effective prior to the beginning of the trial.

The Majority relies in part on Sell v. United States and

Flanagan v. United States in holding that the right at issue in

this case is reviewable on an interlocutory basis. Both of these

cases are distinguishable, however. In Sell, the defendant

sought interlocutory appeal of an order requiring that he be

forcibly medicated in order to stand trial. See Sell v. United

States, 539 U.S. 166, 171-75 (2003). Upon review of this order,

the Supreme Court held that were the Court to wait to review

Sell’s appeal of the order requiring forcible administration of the

anti-psychotic drugs until after the trial, it would be impossible

to vindicate Sell’s right to not be forcibly medicated in order to

stand trial. See id. at 176-77 (“By the time of trial Sell will have

undergone forced medication – the very harm that he seeks to

avoid. He cannot undo that harm even if he is acquitted.

67

Indeed, if he is acquitted, there will be no appeal through which

he might obtain review.”). Accordingly, the Supreme Court

held that Sell’s appeal was permissible as an interlocutory

matter. See id. at 177. In Flanagan, the issue before the

Supreme Court was whether an order disqualifying the

defendants’ counsel was appealable as a collateral order. See

Flanagan, 465 U.S. at 261-63. The Supreme Court held that it

was not, as post-conviction review of the alleged deprivation of

the defendants’ right to choose their own counsel was effective

in ensuring that their rights were not violated.50 See id. at 266-

68. In its opinion, the Supreme Court recited the very limited

number of orders that are reviewable as interlocutory appeals in

criminal cases: an order denying a motion to reduce bail, an

order denying a motion to dismiss an indictment on double

50

In so holding, the Court analogized the right at issue in

Flanagan to deprivations of the Sixth Amendment right to

counsel, which, the Court noted, is fully reviewable even after

the trial. See Flanagan, 465 U.S. at 268 (citing Gideon v.

Wainwright, 372 U.S. 335 (1963)). In effect, the Majority’s

holding today that the Media-Intervenors’ request to know the

names of the prospective or trial jurors is reviewable as a

collateral order seemingly suggests that the right to know the

names of the jurors is more important and more fleeting than is

the defendant’s right to be represented by counsel. See, e.g.,

Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984) (noting

that orders denying appointed counsel, whether in civil or

criminal cases, are only reviewable after final judgment has been

entered).

68

jeopardy grounds, and an order refusing to dismiss an indictment

for violation of the Speech and Debate Clause. See id. at 266;

see also Maj. Op., supra, at 15-16.

Neither the order at issue in Sell nor the various orders

listed in Flanagan as reviewable are similar to the order at issue

in the instant case. In Sell, once the defendant was medicated,

his ability to prosecute his appeal was lost, as there was no

remedy a court could give him once the medication order was

carried out. Similarly, as the Supreme Court noted in Flanagan,

once a duplicitous prosecution of a defendant begins, the right

to be protected from being twice put in jeopardy is useless. In

contrast, the Media-Intervenors do not lose the right to know the

names of the jurors once the trial begins, nor does the public

lose the ability to observe the participants in the judicial process

once the trial commences. Both rights are effectively enforced

post-trial; the mere fact that knowing the names of the

prospective or trial jurors earlier rather than later is preferable

does not, by itself, mean that the right to gather, use, and process

the information requested by the Media-Intervenors is

completely and irretrievably lost once the trial commences.51

51

In fact, most of the cases cited by the Majority arise

from the media’s post-trial challenges to the denial of access to

information, including transcripts of proceedings that were

initially closed. See, e.g., Antar, 38 F.3d at 1350-51; In re

Globe Newspaper, 920 F.2d at 90. Such cases clearly establish

that the right to access can be effectively contested and satisfied

69

Accordingly, the District Court’s order is not effectively

unreviewable post-trial.52

post-trial. Accordingly, these cases do not support the

Majority’s suggestion that the District Court’s order is

effectively unreviewable post-trial. Furthermore, none of these

cases held that the claims of post-trial access were rendered

moot by the completion of the trial, thus suggesting that the right

is effectively reviewable at a time other than prior to

empanelment.

52

The Supreme Court has classified the rights that are

“effectively unreviewable” on appeal, and therefore reviewable

on an interlocutory basis, as those that would be “practically

defeat[ed]” were they not enforced pre-trial, those that are

“impossible” to vindicate on post-trial appeal, those that are

“destroyed” by the commencement of trial, and those that would

be “lost . . . irreparably” once the trial commences. This

language indicates just how important and fleeting a right must

be in order to qualify under the collateral order doctrine. See

Flanagan, 465 U.S. at 265; MacDonald, 435 U.S. at 860; Abney,

431 U.S. at 658. The interest in knowing the names of the jurors

and the right of the public to have access to and oversee the

judicial process would not be “impossible” to vindicate post-

trial, as the Majority alleges, nor would these rights be

“destroyed” by the commencement of trial. They may be

diminished in value once the trial begins or more convenient if

exercised pre-trial, as the Majority suggests, but this is

insufficient to warrant the exercise of our jurisdiction under the

narrowly-construed collateral order doctrine.

70

Because the Media-Intervenors’ interest in knowing the

names of the prospective and trial jurors is not destroyed by the

commencement of jury selection and the trial, the Media-

Intervenors’ appeal fails to satisfy the third prong of the

Coopers & Lybrand test, and we are therefore without

jurisdiction to hear this appeal.53

D.

The Majority today errs in holding that we have

jurisdiction over the Media-Intervenors’ appeal. The order

contested by the Media-Intervenors is not a final order that

conclusively resolves the jury selection issue, nor is the public’s

right to know the names of the prospective or trial jurors

destroyed by the commencement of the trial. Although the

Majority is correct that some right of access claims 54 are only

53

If anything, the Majority opinion today will result in an

avalanche of appeals, as the media can now argue that virtually

any district court order that hinders their ability to report in the

manner they choose is a violation of the First Amendment. Such

a result will not only unduly burden this Court and delay the trial

process, it will conflict with the Supreme Court’s command that

the collateral order doctrine is to be construed narrowly. As has

previously been noted, we have already had to deal with

numerous appeals and motions in this case.

54

As noted in Part II, infra, I cannot join the Majority’s

holding that the First Amendment right of public access to

71

effectively enforced contemporaneously, the Majority is

incorrect in holding that the media’s interest in knowing the

names of prospective or trial jurors is reviewable as a collateral

order because it can only be vindicated prior to the selection of

the jury.55 The collateral order doctrine is reserved for only the

most rare of circumstances, and the issue raised by the Media-

Intervenors in this case is not so rare or extraordinary as to

warrant creating a new class of collateral orders. Accordingly,

the Media-Intervenors’ appeal should be denied for lack of this

Court’s jurisdiction over the District Court’s jury selection

order.

II.

Assuming arguendo that we have jurisdiction over this

matter on an interlocutory basis, the Majority errs in holding that

criminal proceedings necessarily includes a right to know the

names of the prospective and trial jurors before the trial even

begins.

55

Although there are decisions of this Circuit that hold

that certain restrictions on the right to access are appealable as

final orders, those cases dealt with complete closures of the

proceedings or a court’s refusal to unseal certain records. See,

e.g., United States v. Smith, 123 F.3d 140, 145 (3d Cir. 1997);

Antar, 38 F.3d at 1350-51. The circumstances of those cases are

unlike the very limited restriction on the media’s access in this

case, and thus we are not bound by those distinguishable cases.

72

the First Amendment requires the District Court to disclose the

identities of the prospective and trial jurors to the Media-

Intervenors prior to the empanelment of the trial jury. It is well-

established that the First Amendment protects the right of the

public, and the media as its proxy, to have access to criminal

proceedings and to gather information. See Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 576-77 (1980). As

the Majority correctly notes, this right protects public and media

access to numerous facets of the trial process, including voir

dire. See Maj. Op., supra, at 28 (citing Press-Enterprise I, 464

U.S. at 508). The question presented in this appeal is not

whether the media has a right of access to Dr. Wecht’s voir dire

proceedings, however. The question is far more narrow:

whether the First Amendment right of access necessarily

includes a constitutional right to know the names of prospective

and trial jurors prior to the empanelment of the trial jury. The

Majority concludes that the right of access includes a

constitutional right to know the identities of all jurors, which in

turn requires disclosure by the District Court before the trial

begins.

The Majority is incorrect that “access” necessarily

includes the identities of the prospective and trial jurors.

Additionally, the First Amendment does not require disclosure

of the names to the media prior to the empanelment of the trial

jury.

A.

73

The Majority employs the “experience and logic” test set

forth in Press-Enterprise Co. v. Superior Court of California,

478 U.S. 1, 8-9 (1986) (“Press-Enterprise II”), to determine

whether the Media-Intervenors are entitled, as a matter of

constitutional right, to force the District Court to divulge the

names of the prospective and trial jurors prior to the

empanelment of the trial jury. The Majority incorrectly

concludes that this two-prong test requires disclosure, as the

Press-Enterprise II test does not yield such an entitlement.

1.

The first part of the Press-Enterprise II test, the

“experience” prong, requires an examination of “whether the

place and process have historically been open to the press and

general public.” See Press-Enterprise II, 478 U.S. at 8

(emphasis added). According to the Majority, the public has

historically had a right to know the names of prospective jurors.

In support of this conclusion, the Majority cites the Supreme

Court’s historical analysis in Press-Enterprise I, in which the

Court noted that “since the development of trial by jury, the

process of selection of jurors has presumptively been a public

process with exceptions only for good cause shown.” Press-

Enterprise I, 464 U.S. at 505-08. Although the Majority

acknowledges that the Press-Enterprise I opinion mentions

nothing about whether the identities of prospective jurors were

historically available to the public, and although Press-

Enterprise I deals only with the complete closure of voir dire

74

proceedings, the Majority nonetheless infers that the Press-

Enterprise I historical analysis suggests that the names of jurors

were also known to the public. The Majority reaches this

critical conclusion despite the Supreme Court’s silence on this

important question 56 and based solely on the assumption that

because voir dire was traditionally open to the public, the names

of jurors must also have been common knowledge. See Maj.

Op., supra, at 32-33. For this reason, according to the Majority,

the Media-Intervenors can force the District Court to disclose

the names of the prospective and trial jurors before the trial

begins.

A review of the case law, legislation, and local court

procedures of the courts in our Circuit and that of a variety of

other jurisdictions reveals that the “right” to know the names of

the jurors is not, as the Majority suggests, clearly defined. If

anything, a more thorough review of historical and modern jury

56

The Majority wisely notes that it is “reluctant to draw

conclusions solely based on the [Supreme] Court’s silence about

a question that was not before it.” See Maj. Op., supra, at 32.

Accordingly, the Majority refuses to infer that a tradition of

openness existed. It then throws that caution to the wind and

holds that, based on the Supreme Court’s general statements

about the public nature of the voir dire process, none of which

addresses the issue of whether the identities of jurors were

known to the public, the names of jurors were historically

known to the general public. See id at 32-33.

75

practices suggests that the “experience” is one of giving

discretion to district judges over the conduct of voir dire,

including the discretionary ability to withhold the names of

prospective and trial jurors.

i.

In 1968, following the Supreme Court’s decision in

Sheppard v. Maxwell, 384 U.S. 333 (1966),57 Congress passed

57

In Sheppard, the Supreme Court admonished the trial

court for not protecting the rights of the defendant by insulating

the jury from prejudicial publicity. The Supreme Court noted

the tremendous burden placed on the participants of the trial by

the extensive media coverage. See Sheppard, 384 U.S. at 342-

45. The Court pointed out that although “[t]he press does not

simply publish information about trials but guards against the

miscarriage of justice by subjecting the police, prosecutors, and

judicial processes to extensive public scrutiny and criticism,”

some limits could be placed on the media to ensure that the trial

process proceeds fairly. Id. at 349-51. In holding that the jury

may have been unfairly influenced by the media coverage, the

Supreme Court noted that the jurors “were subjected to

newspaper, radio and television coverage of the trial while not

taking part in the proceedings.” Id. at 353. The Court

emphasized that all of the names and addresses of the veniremen

were published in the newspapers, and that “anonymous letters

and telephone calls, as well as calls from friends, regarding the

impending prosecution were received by all of the prospective

76

a law addressing the concerns raised by the Supreme Court

about the pervasive nature of modern media coverage and its

effect on the judicial process. The law, codified at 28 U.S.C. §

1863(b)(7), permits the district courts to develop their own

individual jury selection plans. See 28 U.S.C. § 1863(b)(7); see

also 28 U.S.C. § 1867(f) (permitting courts to withhold the

contents of records relating to jury selection). These plans, if

the district courts so choose, may permit the individual judges

to keep the names of prospective and trial jurors “confidential in

any case where the interests of justice so require.” See 28

U.S.C. § 1863(b)(7) (emphasis added). The legislative history

of the statute explains that the statute was intended to permit

“the present diversity of practice around the nation to continue.

Some district courts keep juror names confidential for fear of

jury tampering. Other district courts routinely publicize the

names.” See In re Globe Newspaper, 920 F.2d at 92 (quoting

H.R. Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968

U.S.C.C.A.N. 1792, 1801)). Not only does this statute indicate

that the experience of the last 40 years supports giving the

district courts great discretion in determining whether to release

the names of jurors, it also suggests that there was a significant

amount of such discretion prior to 1968, which the statute

attempted to codify and preserve. Despite its recognition that

this statute is strong evidence that no tradition of openness

jurors.” Id. at 342. The Court also noted that pictures of the

prospective jurors appeared in the newspaper during the course

of jury selection. See id. at 343.

77

existed, the Majority brushes aside the statute, and with it the

informed judgment of Congress, suggesting that it should not be

given significant weight in determining whether there is an

historical right to know the names of the jurors. See Maj. Op.,

supra, at 36-37.

The jury selection procedures employed by various

jurisdictions in implementing 28 U.S.C. § 1863(b)(7) further

undercut the Majority’s argument that the “experience” prong

supports a determination that the names of jurors were

historically available to the media as a matter of right.

Following the passage of 28 U.S.C. § 1863(b)(7), numerous

jurisdictions across the country implemented, and continue to

employ, jury selection plans that permit individual judges to

keep the names of jurors confidential. See, e.g., D. Ariz. L.R.

Crim. P. 57.2(f)(5); D. La. L. Crim. R. 53.10(E); D. Minn. L.R.

83.2(c)(5); D.N.D. L.R. 77.3(E)(5); N.D. Okla. L. Crim. R.

57.3(A)(5); D.P.R. L. Civ. R. 83.7(g)(5); W.D. Wash. L. Crim.

R. 53(c)(5). Most of the district courts in our Circuit have

developed and continue to employ similar plans. See United

States District Court for the Eastern District of Pennsylvania,

Jury Selection Implementation Plan, at ¶ 9(a), reprinted in Peter

F. Vaira, Eastern District of Pennsylvania Federal Practice Rules

Annotated 653 (2003); Juror Selection Plan, United States

District Court for the Middle District of Pennsylvania §§ 503,

904, http://www.pamd.uscourts.gov/stando/89-69.pdf (revised

Aug. 5, 1999); In re Jury Administration Procedures, Misc. 06-

211 (W .D . P a. Ju ly 13 , 2 0 06),

78

http://www.pa.wd.uscourts.gov/Documents/Forms/jury_06-

211.pdf (July 13, 2006); Revised Jury Plan of the United States

District Court for the District of Delaware for the Random

Selection of G rand and Petit Jurors, at ¶ 8,

http://www.ded.uscourts.gov/jury/juryplan.pdf (amended Apr.

10, 2002); Plan of Implementation of the United States District

Court for the District of New Jersey Pursuant to the Jury

S e le c tio n a n d S e rv ic e A c t o f 1 968, at ¶ I,

http://www.njd.uscourts.gov/jury/JURY-PLAN-FINAL-1-31-

03-apprv.pdf (revised November 1, 2002).

ii.

In addition to the plans developed by the courts in this

Circuit and those of other jurisdictions, all of which codify a

practice of giving the trial court judge discretion whether and

when to release the names of prospective and trial jurors, the

Judicial Conference of the United States has studied and

reported on the issue of how to protect trials from undue

influence and harassment by media coverage. In 1968,

following “approximately two years of deliberation and

research” by various committees and subcommittees of the

Judicial Conference on “the necessity of promulgating

guidelines or taking other corrective action to shield federal

juries from prejudicial publicity,” the Committee on the

Operation of the Jury System (“Committee”) released its report

and findings. See Report of the Committee on the Operation of

the Jury System on the “Free Press-Fair Trial” Issue, reprinted

79

in 45 F.R.D. 391, 392 (1968) (“1968 Report”). In that report,

the Committee noted that with regard to the media, “it is clear

that the court has the power and the duty to regulate the conduct

of a trial so as to insulate the proceedings from prejudicial

influences.” Id. at 401. The Committee recommended that each

District Court adopt a rule providing for special measures to be

taken in cases likely to receive significant media attention,

including a “[d]irection that the names and addresses of jurors

or prospective jurors not be publicly released except as required

by statute.” Id. at 410-11. The Committee noted that an such an

order would be consistent with the “traditional” practices of

controlling potentially prejudicial publicity. See id. at 412-13.

In 1976, the Judicial Conference authorized the

Committee to review the 1968 Free Press-Fair Trial Guidelines

and determine whether any amendments were necessary.58 See

Revised Report of the Judicial Conference Committee on the

Operation of the Jury System on the “Free Press-Fair Trial”

Issue, reprinted in 87 F.R.D. 519 (1980). Several years later, in

its 1980 report, the Committee reaffirmed its support for giving

district courts the freedom to develop special orders relating to

the conduct of jury trials. See id. at 529-30. The Committee

maintained the same language concerning such orders as that in

the 1968 Guidelines. See id. As was the case in 1968, the

Committee again noted the ability of the district courts to issue

58

The chairman of the subcommittee that studied these

issues was Third Circuit Chief Judge Collins J. Seitz.

80

orders directing that the identities of prospective and trial jurors

not be released. See id. at 529-31. Additionally, the Committee

recommended that district courts “make more extensive use of

existing techniques designed to ensure an impartial jury,” which

included withholding the names of prospective and trial jurors.59

Id. at 533-35.

iii.

Various decisions of courts from a variety of

jurisdictions, including many of the cases cited by the Majority,

have also suggested that keeping the names of prospective and

trial jurors confidential is a viable option for dealing with

potentially prejudicial media exposure. See, e.g., Press-

Enterprise I, 464 U.S. at 512 (“Even then a valid privacy right

may rise to a level that part of the transcript [of the voir dire

proceedings] should be sealed, or the name of a juror withheld,

to protect the person from embarrassment.”) (emphasis added);

Stewart, 360 F.3d at 104-05 (“First, we do not see why simply

concealing the identities of the prospective jurors would not

have been sufficient. . . . Here, partial closure was an available

and an effective means of ensuring the candor of prospective

jurors.”); Gannett Co., Inc. v. State of Delaware, 571 A.2d 735,

751 (Del. 1989); see also Hamer v. United States, 259 F.2d 274

59

The Committee’s recommendations are also discussed

in Edward Devitt, et al., 1 Federal Jury Practice and

Instructions: Civil and Criminal § 4.05 (4th ed. 1992).

81

(9th Cir. 1958) (upholding trial court’s refusal to release the

names of jurors to anyone, including the defendant, against the

defendant’s Sixth Amendment challenge). Moreover, numerous

courts have used or upheld the use of anonymous juries or

anonymous voir dire in cases where media exposure or other

prejudicial influences might be a problem. See United States v.

Brown, 250 F.3d 907, 916-17 (5th Cir. 2001) (upholding refusal

to grant post-trial access to juror identities and noting that an

anonymous jury is preferable to sequestration because

“[a]nonymity protects, in addition to the jurors, the venire

persons and the jurors’ families from influence exerted by

outside parties”); United States v. Branch, 91 F.3d 699, 724 (5th

Cir. 1996); United States v. Wong, 40 F.3d 1347, 1377 (2d Cir.

1994) (noting that the “prospect of publicity militates in favor of

jury anonymity to prevent exposure of the jurors to intimidation

or harassment”); United States v. Scarfo, 850 F.2d 1015, 1023

(3d Cir. 1988); United States v. Black, 483 F. Supp. 2d 618,

623-26 (N.D. Ill. 2007) (refusing to release names of empaneled

jurors to the media); United States v. Doherty, 675 F. Supp. 719

(D. Mass. 1987) (releasing names and addresses of jurors seven

days after the conclusion of the trial). Courts have also

suggested that the media’s request to know the identities of the

prospective and trial jurors can be adequately satisfied by post-

trial release of the transcripts of the voir dire proceedings, thus

suggesting pre-trial disclosure is not mandatory. See, e.g.,

Press-Enterprise I, 464 U.S. at 512 (“When limited closure is

ordered, the constitutional values sought to be protected by

holding open proceedings may be satisfied later by making a

82

transcript of the closed proceedings available within a

reasonable time, if the judge determines that disclosure can be

accomplished while safeguarding the juror’s valid privacy

interests.”); In re Globe Newspaper, 920 F.2d at 91-93, 98

(permitting juror identities to be withheld prior to trial but

ordering post-trial release in light of district court’s failure to

adequately justify decision to withhold).

iv.

The nature of trial practice has undoubtedly changed over

the last few decades, let alone the last millennium.60 In

60

In particular, it is worth noting that at the origin of the

jury system, jurors were selected based on their knowledge of

the parties, their prior knowledge of the facts of the case, or their

affiliation with one of the parties. See, e.g., Valerie P. Hans and

Neil Vidmar, Judging the Jury 21-44 (1986) (discussing the

evolution of the modern American jury and noting that “our

present conception of justice and the role and functions of the

jury have sharply changed over the centuries”); Paula DiPerna,

Juries on Trial: Faces of American Justice 21-98 (1984)

(discussing the evolution of the jury system and the voir dire

process). In addition, during the early days of the jury system,

jurors were selected from a much smaller area and subset of

society. The changes of the composition and purpose of the jury

system suggest that more recent experience is far more valuable

in evaluating the role of the public in the judicial process than

is earlier experience.

83

particular, the presence of the media, and its increased role as

the surrogate of the public’s interest in ensuring the justice

system functions in a fair and effective way, has presented

courts with new challenges as they attempt to balance the

interests of the media, the public, the defendant, the

Government, the jury, and the courts. See Sheppard, 384 U.S.

at 362 (discussing the “pervasiveness” of the modern media).

Given the increased media presence and role in judicial

proceedings, the collective experience of courts over the last few

decades in managing high-profile trials is arguably more

relevant than is the early development of the jury system on

which the Majority bases its holding that jurors names were

known to the public as a matter of experience. The Majority

either marginalizes or completely ignores recent developments

in the law and recent decisions that codify existing practices,

and much of the evidence the Majority ignores indicates that the

right to force disclosure of the names of jurors is not rooted in

either history or practice. The Majority’s conclusory statement

that jurors’ names were known to the public throughout history

is further undercut by the statements of Congress and the

Judicial Conference of the United States. These bodies, after

considerable review of trial court practices as they have

developed over the course of history, came to the conclusion

that it is permissible for the individual district courts to withhold

the names of prospective and trial jurors. The fact that

numerous district courts and state courts, exercising their own

individual judgment in light of the challenges their judges face,

permit the names of jurors to be withheld is strong additional

84

evidence that the “right” the Majority announces today is not

firmly rooted in history or the collective experience of this

nation’s courts.61

Despite its admonition that any analysis of the

“experience” prong of Press-Enterprise II must necessarily

include the experience as it has developed over the last

millennium,62 the Majority largely ignores the last half-century

61

Presumably, the Majority would have us believe that 28

U.S.C. §§ 1863(b)(7) and 1867(f) are arguably unconstitutional

to the extent they restrict the media’s right to know the names of

the jurors in all but the most unusual of cases. Furthermore, the

Majority’s holding calls into question the practices of numerous

federal and state courts with regard to jury selection and

suggests that all of those courts, including many of the district

courts in this jurisdiction, are acting in contravention of the

Constitution.

62

In its discussion of the “experience” prong, the Majority

cites the historical analyses in Press-Enterprise I and In re

Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1998). Although

these cases begin their examination of the history of the jury

system in the days “before the Norman conquest,” nothing in

either case or in Press-Enterprise II explicitly supports the

Majority’s suggestion that the whole millennium’s worth of

experience must be considered. Even if the whole millennium

is considered, it makes sense to consider the right in question in

context; thus, questions about media access to trials are more

properly examined in light of recent history, when the media

85

of this millennium. The experience over the past half-century,

in the context of media outlets that gather information and report

twenty-four hours a day, seven days a week, has largely been

one of granting increased discretion to district courts in the

management of their trial procedures, not one of forcing

complete openness. I believe that the courts’ collective

experience over the last half-century is highly persuasive,

especially in light of the increased presence of the media and the

facts of this case. This experience is not, as the Majority

suggests, somehow less persuasive. Accordingly, a properly-

conducted analysis of the “experience” prong does not result in

a finding that the names of jurors were historically known to the

public, and by extension the media, as a matter of right.

2.

The “logic” prong of the Press-Enterprise II test requires

courts to evaluate whether “public access plays a significant

positive role in the functioning of the particular process in

question.” Press-Enterprise II, 478 U.S. at 8. The Majority

holds that logic dictates that knowing the names of the jurors

prior to empanelment of the trial jury “plays a significant

positive role in the functioning” of the criminal justice system.

See Maj. Op., supra, at 38. Accordingly, the Majority holds, the

District Court must disclose the names of the prospective and

trial jurors prior to the empanelment of the jury as a matter of

became much more pervasive.

86

constitutional right. The logical considerations underlying the

right of access do not require, as a matter of constitutional right,

the pre-empanelment disclosure of the jurors’ names.

The purpose of the “logic” prong is to determine whether

“the historical practice play[s] ‘an essential role’ in the proper

functioning of government . . . since otherwise the most trivial

and unimportant historical practices . . . would be chiselled in

constitutional stone.” See In re Reporters Comm. for Freedom

of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985). Indeed, not

every historical practice that plays a positive role in the judicial

process is considered a constitutional right. As the Supreme

Court has noted, the logic test allows courts to “distinguish

between what the Constitution permits and what it requires.”

Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 385 (1979). Put

another way, the question is whether announcing the names of

the jurors prior to empanelment is significantly important to the

public’s ability to oversee the jury selection process and to

ensure the judicial system functions fairly and effectively. See

also In re Reporters, 772 F.2d at 1332 (noting that the process

in question must play “an essential role”).

In determining whether a claim of access satisfies the

“logic” test, this Court has set forth a number of factors to

consider. These factors include:

[P]romotion of informed discussion of

governmental affairs by providing the public with

87

the more complete understanding of the judicial

system; promotion of the public perception of

fairness which can be achieved only by permitting

full public view of the proceedings; providing a

significant community therapeutic value as an

outlet for community concern, hostility, and

emotion; serving as a check on corrupt practices

by exposing the judicial process to public

scrutiny; enhancement of the performance of all

involved; and discouragement of perjury.

United States v. Smith, 123 F.3d 140, 146-47 (3d Cir. 1997). As

has been noted above, the question in this case is not whether

the media has a right to access the voir dire proceedings; that

right has been clearly established in the case law. The actual

question presented to us is whether the media is entitled as a

matter of constitutional right to know the names of both the

prospective and trial jurors prior to the empanelment of the trial

jury. A review of the Media-Intervenors’ demand under the

Smith factors does not support the conclusion that knowing juror

names prior to their empanelment is included in the right of

access protected by the First Amendment.

Neither the Majority nor the Media-Intervenors explains

why informed discussion or understanding of the judicial

88

process can only take place pre-trial.63 Corruption could just as

easily be rooted out post-trial as it could pre-trial. In addition,

rather than making jurors more likely to be candid in their

answers during voir dire, knowing that their personal lives and

opinions will be exposed to the public by the media will more

likely make jurors less willing to serve and less candid in their

responses. See In re South Carolina Press Assn., 946 F.2d

1037, 1044 (4th Cir. 1991) (“[T]he potential jurors will be more

candid in their responses if they do not have to worry about what

the public’s opinion of those responses might be.”); see also

Stewart, 360 F.3d at 104 (“[W]e do not see why simply

concealing the identities of the prospective jurors would not

have been sufficient to ensure juror candor.”). Suggesting that

prospective jurors will be less than candid or will perjure

themselves absent media scrutiny is entirely too cynical a view

of the judicial process and its participants. See Gannett, 571

A.2d at 750 (“Gannett’s fairness argument is based on the

presumption that jurors will not respond truthfully, and

therefore, the public requires further safeguard, which it is

claimed only the press can provide. We refuse to adopt such a

cynical view of the criminal justice system.”). Thus, the Smith

63

If anything, it would seem that knowing how the jury

ruled would put the public in a better position to decide whether

the judicial process functioned appropriately. Prior to the actual

verdict, the public can only speculate about how the jurors will

rule and whether something in their personal lives will affect

their verdict.

89

factors do not dictate the result the Majority reaches today.

In addition to considering the benefits of public access to

the names of the jurors,64 we must also consider the potential

dangers of public access. See North Jersey Media Group, Inc.

v. Ashcroft, 308 F.3d 198, 217 (3d Cir. 2002) (noting that “to

gauge accurately whether a role is positive, the calculus must

perforce take account of the flip side – the extent to which

openness impairs the public good,” and that “were the logic

prong only to determine whether openness serves some good, it

is difficult to conceive of a government proceeding to which the

public would not have a First Amendment right of access”).

Requiring district courts to bow to media demands to know the

names of prospective jurors would certainly impair the public

good in many cases. Although the media may desire this

information for the avowed purpose of opening the judicial

64

In discussing the benefits of openness, the Majority

states that it “cannot reconcile the conclusion that the public has

the right to see the process in which this power [to decide the

fate of a defendant] is exercised . . . and to see the process that

selects those who will exercise the power . . . , with the

conclusion that the public has no right to know who ultimately

exercises this power.” Maj. Op., supra, at 41. The question is

not whether the public ever has a right to know who sits in

judgment of a defendant in the vast majority of cases, however,

but whether that right to know is only logically exercised, as the

Majority suggests, prior to the commencement of the trial.

90

process to public scrutiny, the media will likely use the

information it possesses for the purpose of writing stories about

the prospective jurors. In order to gather further information,

there is a strong possibility that the media will make contact

with the prospective jurors or their families and friends before

the trial begins. Such reporting may require significant and

unwarranted invasions of the privacy of the jurors, none of

whom had a choice about being called to service. Furthermore,

it stands to reason that it is more likely that the parties or their

enemies will be able to exert influence over the jurors were they

to know their identities. Finally, knowing that jury service will

result in potential harassment and invasions of their privacy,

citizens will likely be more reluctant to serve and less likely to

be candid during jury selection. Thus, requiring pre-

empanelment disclosure of the identities of prospective jurors

raises significant concerns about hindering the public interest in

fair and orderly trials presided over by unbiased jurors.65 This,

65

The District Court’s concerns about juror harassment by

the media are somewhat justified by the experience of the

Delaware courts in Gannett:

Gannett, nevertheless, immediately published an

article in the midst of trial highlighting the names

and giving profiles of individual jurors.

Apparently, this was the first newspaper article in

Delaware to publish such information while a trial

was in progress. The article admitted that the

“jurors value[d] their privacy highly and became

91

ironically, is the very danger the right of access seeks to avoid.

In light of the foregoing analysis, the Majority’s

argument that the right of access necessarily includes the right

to have the identities of the prospective and trial jurors

extremely upset when a ... television crew

followed some of them to lunch and attempted to

film them eating.” Further, it stated that the jurors

“avoid[ed] media, family members of the victims

and defendant, and anyone else who appear[ed]

recognizable, leaving local restaurants at the sight

of a familiar face from the courtroom.” The article

then continued with detailed profiles of the jurors,

giving their names, hometowns, occupations,

marital status, number and ages of their children,

personal mannerisms and appearance. The latter

portrayals were rarely flattering. Jurors were

described as having a “stern expression”, a “stern

demeanor”, “stylishly dressed”, “admits to a

hearing problem”, “stout”, “mostly bald”, “short

and round”, and “tall, balding and thin.”

Gannett, 571 A.2d at 738.

I do not mean to suggest that the present Media-

Intervenors would consider acting in the same manner as

Gannett. Gannett merely demonstrates the possible disruption

that pre-trial disclosure of jurors’ names to the media may cause

were the media to act inappropriately, and clearly the Media-

Intervenors cannot presume to predict what other media sources

may do.

92

announced to the public prior to the empanelment of the trial

jury fails to pass the Press-Enterprise II logic test. There is no

logical support for the line the Majority draws when it requires

disclosure as a matter of constitutional right prior to the

empanelment of the trial jury.66 See, e.g., United States v.

Edwards, 823 F.2d 111, 120 (5th Cir. 1987) (noting that the

“usefulness of releasing jurors’ names appears to us highly

questionable”). The potential that pre-empanelment disclosure

will hinder the judicial process, whether by tainting the jury,

making it more difficult to select an uninformed jury, or

subjecting the jurors to harassment and depredation, far

outweighs the benefit to the public of knowing the names of the

prospective and trial jurors prior to the commencement of the

trial.67 Accordingly, I do not believe that logic supports the

66

In fact, many of the cases cited by the Majority concern

post-trial access to the identities of jurors, which suggests that

logic does not require the arbitrary pre-empanelment line drawn

by the Majority today. See, e.g., Press-Enterprise I, 464 U.S. at

512; In re Globe Newspaper, 920 F.2d at 91-93.

67

Determining whether the “logic” prong mandates a First

Amendment right of access to the names of the jurors prior to

the trial is admittedly a speculative analysis that requires a

balancing of the theoretical benefits and detriments of pre-trial

release. However, such an analysis of the theoretical benefits

and detriments is required by the Supreme Court. If anything,

the foregoing analysis makes a strong case that the decision

whether to release the names of the prospective jurors should be

93

constitutional rule announced by the Majority: that courts must

disclose the names of prospective and trial jurors to the media

prior to empanelment as a matter of constitutional law.

B.

Two cases from other jurisdictions are instructive,

although not binding, with regard to the question of whether the

First Amendment right of access includes a right to force a

district court to disclose the identity of the prospective jurors.

Both United States v. Black, 483 F. Supp. 2d 618 (N.D. Ill.

2007), and Gannett Co., Inc. v. State, 571 A.2d 735 (Del. 1990),

addressed factual and procedural circumstances virtually

identical to those presented in this appeal.

1.

Black involved a high-profile criminal fraud prosecution.

In that case, the district court, recognizing the intense media

coverage of the trial, held anonymous voir dire in open court but

entertained the peremptory challenges at sidebar. See Black,

483 F. Supp. 2d at 620-21. Following jury selection, the district

court disclosed the names of the empaneled jurors and the

left to the measured discretion of the trial judge, who is in the

best position to determine whether disclosure, in light of the

particular facts of the case, will be more beneficial than

detrimental to the public good.

94

alternates to the parties, but it did not release that information to

the media. Id. at 621. The media filed a motion to compel the

district court to release the names of the jurors and alternates

prior to trial. Id. at 620.

After engaging in an extensive discussion and analysis of

the Press-Enterprise II factors, the district court denied the

motion. See id. at 622-30. According to the district court, not

all aspects of the criminal trial process are protected by the First

Amendment’s right of access. See id. at 622 (citing circuit court

decisions holding “that the First Amendment does not guarantee

access to withdrawn plea agreements, affidavits supporting

search warrants, or presentence reports”). The court noted that

the issue in Black was not whether the media had a right of

access to the voir dire proceedings, as that question was settled,

but whether experience and logic dictated that the media had a

constitutional right to learn the names of jurors before a verdict

was rendered. See id. at 624. After reviewing decisions and

opinions from other circuit and district courts, all of which

upheld varying degrees of restriction on the media’s access to

the names of prospective jurors, the district court determined

that analyzing the voir dire process in light of the “experience”

prong of Press-Enterprise II did not result in a finding that the

media had a constitutional right to the names of the jurors prior

to the conclusion of the trial. See id. at 626. The district court

in Black also held that the “logic” prong of the Press-Enterprise

II test did not establish a constitutional right. In particular, the

district court noted that open access to juror names did not

95

achieve the same effect of vindicating the public’s right to

oversee judicial proceedings as did requiring the process itself

to be available to public scrutiny. See id. at 628 (“But open

access to juror names during the pendency of trial has no similar

effect and, in fact, disclosure enhances the risk that the jury will

not be able to function as it should, in secrecy and free of any

outside influence.”) (emphasis in original). Accordingly, the

court in Black refused to release the names to the media, having

found no constitutional right to know the names of the jurors

prior to the conclusion of the trial.

2.

As in Black, the Delaware Supreme Court in Gannett had

to determine if and when the Constitution requires public

disclosure of the names of prospective and trial jurors. Gannett

involved a high-profile murder case. Based on extensive

publicity in the prior trial of a co-defendant and overwhelming

pre-trial publicity in the case presently before it, the trial court

in Gannett decided to withhold the names of prospective jurors

from the media during voir dire; it permitted the parties to know

the identities of the prospective jurors. See Gannett, 571 A.2d

at 737. Much like the case before us, prospective jurors in the

Gannett case were only identified by their assigned juror

number. See id. The media was permitted to be present in the

courtroom and to observe and report on the proceedings. See id.

at 738. Gannett, the publisher of a state-wide daily newspaper,

intervened and petitioned the trial court to release the names of

96

the prospective jurors prior to jury selection. See id. The trial

court refused, and Gannett appealed to the Delaware Supreme

Court. See id. at 739.

The Delaware Supreme Court upheld the trial court’s jury

selection procedures, noting that because Gannett failed to

satisfy either of the Press-Enterprise II requirements, no

qualified right to the names of the prospective jurors existed

prior to jury selection. See id. at 751. According to the

Delaware Supreme Court, the issue of whether the right of

access included the right to know the names of the prospective

jurors was one of first impression, as all of the cases dealing

with the right of access concerned restrictions on the right to

view court documents or complete closures of the courtroom.

See id. at 741-42; see also id. at 742 (“To our knowledge,

however, no court has yet recognized a right of access to jurors’

names.”). Accordingly, the Court employed the Press-

Enterprise II test because it was the “most closely analogous

basis for disposition of the matter.” Id. The Court framed the

issue in the case as: whether the “announcement of jurors’

names has traditionally been open to the press and general

public.” Id. at 743. It concluded that “the historical tradition

gives trial courts discretion over [voir dire] matters, which is

reflected in express statutory provisions enacted by duly elected

representatives of the people at the state and national levels.”

Id. at 748.

In addition to determining that experience weighed on the

97

side of giving the trial courts discretion to manage voir dire

procedures, the Court held that announcing the names of the

prospective jurors had only a tenuous and insignificant logical

connection to the goals of the First Amendment’s right of

access. See id. at 751 (noting that the trial court’s procedures

“assured the public that the trial was fair without closing the

proceedings to anyone,” and that “there is nothing to suggest

that such actions undermined public trust in the judicial

system”). In so holding, the Court rejected the claims put forth

by the defendant that announcing the names of the prospective

jurors was necessary to ensure that jurors were candid in their

responses to voir dire questioning. See id. at 750. Thus, the

Court held, the media was not entitled, as a matter of

constitutional right, to the names of the prospective jurors prior

to the commencement of the trial. See id. at 751.

3.

Black and Gannett analyzed the precise question before

us in virtually identical factual circumstances. Both courts

concluded that the First Amendment right of access does not

include a right to know the names of prospective and trial jurors.

The courts in both cases undertook an extensive and thorough

analysis of the Press-Enterprise II factors in reaching the

conclusion that the decision to withhold the names of jurors,

whether before or during the trial, is within the discretion of the

trial courts. Those courts did not, as the Majority does in its

opinion, merely presume that because voir dire is generally held

98

in public and because many years ago juries were only drawn

from small communities in which people knew one another, that

there must be an historical tradition of permitting the public to

force disclosure of the names of prospective jurors.

Accordingly, although the Black and Gannett holdings are not

binding on our Court,68 they do offer a great deal of insight as to

how this Court should analyze and address the particular

question before us.

68

In their brief, the Media-Intervenors were quick to point

out that Black was a district court decision, and thus entitled to

little weight. As I have noted, however, almost all of the cases

cited by the Media-Intervenors and the Majority deal with

complete closure of the proceedings or demands for post-trial

release of jurors names. Neither the Media-Intervenors nor the

Majority have identified any binding authority that addresses the

precise question before us: whether the media has a right under

the First Amendment to force disclosure of the names of jurors

prior to the empanelment of the jury. Accordingly, to the extent

that the Black court actually reaches this precise question, its

decision is entitled to no less weight than any other authority

identified by the Media-Intervenors.

For the same reason, the Delaware Supreme Court’s

decision in Gannett is not to be ignored. If anything, Gannett’s

facts and procedural posture are almost identical to those of the

case before us. It is the most persuasive authority that has been

brought to our attention, as it is the most on-point with the facts

of the case before us.

99

C.

In conclusion, an analysis of the Press-Enterprise II test

does not support the rule announced by the Majority today.

Neither the Media-Intervenors nor the Majority has produced

convincing evidence that the public has a qualified right under

the First Amendment to force the disclosure of the names of

both the prospective and trial jurors prior to empanelment.69

69

The Majority suggests that we review de novo whether

the right of access includes a right to know the names of jurors.

See Maj. Op., supra, at 29 (citing Antar, 38 F.3d at 1356-57).

However, much of the case law concerning the right of access

places the burden of satisfying the experience and logic test,

whether explicitly or implicitly, on the party asserting the right

to access. See, e.g., Press-Enterprise II, 478 U.S. at 8; North

Jersey Media Group, 308 F.3d at 209; United States v. Corbitt,

879 F.2d 224, 228 (7th Cir. 1989); Black, 483 F. Supp. 2d at

623; Gannett, 571 A.2d at 749. To the extent that the Majority

suggests that the burden is on the Government to demonstrate

that no tradition of openness exists, this is a mischaracterization

of the burden. See Maj. Op., supra, at 34 n.27 (“[T]his would

not by itself prove that no tradition of openness exists.”). The

standard is either de novo or the burden is on the Media-

Intervenors to satisfy the Press-Enterprise II test; the burden is

not on the Government to prove the inapplicability of the Press-

Enterprise II factors. Regardless of which standard is used,

however, the claim of a right to access the names of jurors prior

to the trial fails to satisfy the Press-Enterprise II test.

100

The Majority’s analysis of whether there is an historical practice

of revealing the names of prospective and trial jurors prior to the

empanelment of the trial jury largely ignores the suggestions of

Congress and the Judicial Conference, as well as court practices

of at least the last half-century. In addition, the Majority relies

on cases granting the media post-trial access to juror names for

the proposition that the media is entitled to the names of the

jurors prior to the trial, a conclusion that does not follow from

the cited authority. Finally, the Majority offers little to support

its conclusion that the public’s desire to know the names of

jurors prior to the beginning of the trial plays such an important

role in the proper functioning of the judicial process that the

media is entitled to force pre-trial disclosure despite the trial

court’s determination that anonymity is in the best interests of

the parties and the judicial system. Simply because pre-

empanelment disclosure may play a positive role in some cases

does not, by itself, make that role so significant that pre-

empanelment disclosure is required by the Constitution. See

Gannett, 571 A.2d at 745 (“Merely because an historic

procedure exists, does not automatically enlarge it to

constitutional proportions.”).

The names of jurors are neither a “place” nor a “process,”

and the history of voir dire, especially over the last half-century,

has been one of increased discretion on the part of the district

courts. Neither “experience” nor “logic” suggests that jurors

have to be known to the public prior to the beginning of the trial

in order for the judicial system to function properly and fairly.

If anything, the anonymity of prospective and trial jurors,

especially in high profile cases, is more consistent with the

proper and fair functioning of the judicial process. See Scarfo,

850 F.2d at 1023 (“Because the system contemplates that jurors

101

will inconspicuously fade back into the community once their

tenure is completed, anonymity would seem entirely consistent

with, rather than anathema to, the jury concept.”).70

Accordingly, I cannot join the Maj

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