# United States v. Presser > Court of Appeals for the Sixth Circuit · July 31, 1987 · 828 F.2d 330 URL: https://www.frixlaw.com/law-library/cases/8953514 ## Case - **Full name:** Application of STORER COMMUNICATIONS, INC WJW-TV8 Intervenors-Appellants. UNITED STATES of America v. Jackie PRESSER, Harold Friedman and Anthony Hughes - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** July 31, 1987 - **Citations:** 828 F.2d 330 - **Precedential status:** Published - **Opinion:** Concurrence by Joiner - **Judges:** Joiner, Lively, Ryan - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8953514 ## Opinion text JOINER, Senior District Judge, concurring. I join Parts I, II, IIIA, IIIB, and IVA of the court’s opinion. I also join Part IIIC, but only to the extent that it holds that the district court erred in concluding that it did not have the jurisdiction to make a Brady determination or to rule on Storer’s motion. I write separately to note my disagreement with the court’s conclusion that there is a qualified right of access to potential Brady materials presented for an in camera determination by the trial judge, or that there is a possibility that such a determination should be made at an open hearing. In Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196 , 10 L.Ed.2d 215 (1963), the Supreme Court first established that the prosecution has a constitutional duty to provide favorable evidence to the accused upon request. In United States v. Agurs, 427 U.S. 97, 106-107 , 96 S.Ct. 2392, 2399 , 49 L.Ed.2d 342 (1976), the Court, recognizing the importance of this prosecution duty, held that Brady applies even when defense counsel makes no request for such evidence. As recognized in this court’s opinion, given the obvious import of Brady disclosures, prosecutors often, “in excess of caution,” seek the trial judge’s determination of whether certain “borderline” evidence is Brady material, even though no request has been made by defense counsel. This procedure involves a prosecutor submitting the materials in question ex parte to the trial judge for an in camera Brady determination. A record is made of the in camera proceeding, but the record and the materials are immediately sealed after the determination is complete. This procedure is well established and serves an important purpose of aiding compliance with rules requiring disclosure of certain evidence to the defendant. It should be encouraged. Given this procedure, I fail to see how this process can be considered “historically open” to the public, and as a result, the first consideration of Press-Enterprise Co. v. Superior Court of California, — U.S. -, 106 S.Ct. 2735, 2740 , 92 L.Ed.2d 1 (1986) (Press-Enterprise II), is not satisfied, and there is no right of access. Moreover, rather than public access playing a significant positive role in the functioning of the Brady process, public access will hamper this important procedure. Prosecutors will be less willing to exercise “an excess of caution” in seeking judicial Brady determinations if they believe that this material may be made public, and the confidentiality, which would no longer exist if the continuing disclosures to the trial judge were not made, and which is so critical to this process, would be destroyed. As such, the second consideration from Press-Enterprise II, is also not satisfied. I suggest that the district court was in error in determining that it did not have jurisdiction over the Brady decision, and that it lacked jurisdiction to rule on the Storer motion. A motion had been filed to disclose material filed under seal; clearly, the district court had jurisdiction and it should have been exercised. But under the law as explained in Press-Enterprise II, the Storer motion should be denied on the merits as there is no public right of access to the materials, unless and until they are ordered disclosed to defendants as Brady material. In such case, the court should consider the matter in light of the standards enumerated today in the companion case to the instant case, Application of NBC, Inc. and WKYC-TV3, No. 86-3735. If the materials are not ordered disclosed to defendants, there is no public right of access. This is true whether or not a district judge determines to recuse himself. The reasons for that recusal need not be stated, and his action should not in any way alter the decision as to whether there is a public right of access to materials given to the judge for a Brady determination. I would reverse the district court’s determination that it did not have jurisdiction, and would direct that the Brady determination be made, and that judgment be entered in accordance with the standards set forth *338 here as to whether Storer should have access to that material. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8953514. Public record. Not legal advice.