Joel Levine v. United States District Court for the Central District of California, United States of America, Real Party in Interest

SNEED, Circuit Judge,

concurring:

I concur in Judge Beezer’s opinion. I write separately only to express a slightly different approach to gag orders than that of Judge Beezer.

My starting point is that the conduct of lawyers should eliminate the necessity of imposing such orders. Respect for their profession and the integrity of the judicial process should be sufficient to deter the type of conduct that makes gag orders directed at lawyers necessary. Unfortunately, this required level of professional conduct sometimes does not exist. Bar associations appear to be incapable of securing it.

This requires, inter alia, confrontation with the tension between the interests served by the First and Sixth Amendments. Properly imposed gag orders do inhibit the flow of information available to the press even when not specifically directed at the press. On the other hand, it is presumed that such orders do tend to assure an impartial jury.

The difficulties attending the drafting and enforcing of proper gag orders, which in part this case illustrates, tempts one to consider the consequences of severely restricting or even eliminating their use. Juries time and time again surprise us with their ability and willingness to penetrate the confusion created by counsel, both within and without the courtroom, witnesses, the press, and, one must add, the very language and forms of the law itself. Their verdicts generally are fair. Thus, it can be argued that there is no need to shelter jurors from what the press reports about the statements of counsel before and during the trial. Some might go further and insist that jurors should be totally immersed in the community environment until discharged in order to reflect properly community values.

Any inclination to accept unqualifiedly these positions is checked by the Sixth Amendment’s guarantee to an accused of *602 an impartial jury. Prosecutorial freedom to communicate as it wishes with the press both before and during trial would make it very difficult in an emotional setting to assure the impartiality of a jury. At the very least we are sufficiently doubtful of that ability to be willing to unleash prosecutors completely. As a consequence, we applaud the rules imposed by the Department of Justice under which prosecutorial contacts with the press are governed. See 28 C.F.R. § 50.2 (1985). Were they not in place the courts would evolve similar restraints. First Amendment concerns would not prevent their development and use.

The Sixth Amendment’s guarantee of an impartial jury, however, is an obligation of the nation, not the accused. It is not his duty to provide an impartial jury. Indeed, we recognize, at least implicitly, that an accused, within certain limits, can attempt to obtain a jury that is partial to him. Lawyers frequently describe what in essence is the search for a partial jury as only a quest for an impartial one. This sort of dissembling usually is relatively harmless. It becomes more troubling when the accused in his understandably zealous search for a partial jury insists that the Sixth Amendment, reinforced by the First Amendment, provides a protective immunity over a wide range of activities that have as their purpose the attainment of such a jury. Neither amendment, however, assures the accused a partial jury. He may attempt to obtain one, but he is not guaranteed one.

Courts, therefore, cannot escape the task of fixing the limits within which the accused legitimately may seek a jury partial to his interests. Intimidation, threats, and other forms of duress obviously are not immunized by either the First or the Sixth Amendment. Broadly speaking, the issue before us in this case is whether the “lobbying efforts” by the attorneys of those here accused of espionage as reflected by the record before us could transgress these limits. I am prepared to accept the conclusion that they could.

In reaching that conclusion, I must point out, as does Judge Beezer, that although the Sixth Amendment does not guarantee that the people of this nation will witness a fair trial before an impartial jury, the people expect such a trial. Moreover, the court should make a reasonable effort to provide precisely what the people expect. In doing so, it must not confuse that expectation with a public lust for a verdict of guilty.

Evenhanded treatment of the prosecutor and defense counsel no doubt tends to reinforce the public’s perception that the trial is fair. Evenhandedness, however, is not required by the Sixth Amendment. Prosecutors may be subjected in gag orders to more stringent restraints than are defense counsel. The balance here is between the right of the accused to an impartial jury and the expectation of the people that the jury is impartial. If evenhandedness is to be put aside, it is the accused that must be favored. The ideal, of course, is a fair trial before an impartial jury. A properly limited gag order directed at prosecutors and defense counsel can be helpful in achieving this end.

Speech by those parties, to repeat, can destroy the impartiality of a jury and make a fair trial impossible. It happens infrequently, but it is possible. The result may favor the accused or the state. It is a result that cannot be avoided by muzzling the press in advance of the trial. See C.B.S. v. United States District Court for the Central District of California, 729 F.2d 1174 (9th Cir.1984); Associated Press v. United States District Court for the Central District of California, 705 F.2d 1143 (9th Cir.1983). Gag orders, such as here involved, present the issue whether the speech of attorneys can be restrained to reduce the risk of elimination by the press of the possibility of a fair trial before an impartial jury. The Supreme Court has told us that courts can restrain such speech. See Nebraska Press Association v. Stuart, 427 U.S. 539 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976); Sheppard v. Maxwell, 384 U.S. 333, 358-62 , 86 S.Ct. 1507, 1519-22 , 16 L.Ed.2d 600 (1966). The restraint, *603 however, must be precisely drawn. Judge Beezer clearly has indicated how this should be accomplished.

The balance that should be struck is between First Amendment rights, the Sixth Amendment rights of the accused, and the public’s expectation that the trial will be fair and before an impartial jury. This sort of delicate balancing should be undertaken reluctantly; but when provoked by attorneys, whether prosecutors or defenders, who seek by use of the press to obtain as partial a jury as possible, courts must respond.