Petition — Miami Herald Publishing Co. v. Krentzman

Supreme Court. U. S.

JAN 16 ja7,2

in the

Supreme € go unle PME ROKK se, ove

of the United States

OCTOBER TERM, 1977

No. FZ—m1010

MIAMI HERALD PUBLISHING COMPANY,

GENE MILLER, TIMES PUBLISHING

COMPANY and ANGEL CASTILLO

Petitioners,

v.

THE HONORABLE BEN KRENTZMAN

United States District Court for

the Middle District of Florida

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Parker D. Thomson William C. Ballard

Santord L. Bohrer BAYNARD, LANG

PAUL & THOMSON AND BALLARD

1300 Southeast First 669 First Avenue North

National Bank Building St. Petersburg, F_orida 33701

Miami, Florida 33131

James D. Spaniolo

One Herald Plaza

Miami, Florida 33101

Counsel for Petitioners

RE, TS, SS a ET EE TS A TN ESR

INDEX

Page

EE os iii en thks iddesaneaeeerns iat 2

I Sie ii cea teceuainndeanecende 2

QUESTIONS PRESENTED ..................... 2

CONSTITUTIONAL PROVISIONSINVOLVED. 4

EE nc cenauinencenahaoeieusesanqeane 4

STATEMENT OF THE CASE ................... 7

REASONS FOR GRANTING THE WRIT ........ 16

I. The Decision Below Raises A Significant,

Recurring and Unresolved Problem Con-

cerning the Power of Trial Judges to Close

Portions of Public Trials to the Public and

Press and the Circumstances Under

Which Such Powers May Be Exercised... 16

Il. The Decision Below Raises the Signifi-

cant, Recurrent, Recurring and Un-

resolved Problem of Whether Entry of a

Closure Order May Be Considered

Without Prior Compliance With

Procedures Meeting Due Process

id cicccdegis sdenedadannes 27

ied kdcpndndepecindennietiindaneens 29

CITATIONS

CASES Page

Carroll v. President and Commissioners

of Princess Anne,

a a eet aneuneet 27

CBS. Inc. v. Young,

522 F.2d 234 (6th Cir. 1975) .................. 6, 19

Central South Carolina Chapter, Society of

Professional Journalists, et al. v. Martin,

556 F.2d 706 (4th Cir. 1975), cert. denied,

No. 77-263 (January 9, 1978) .............. 6, 19

Chicago Council of Lawyers v. Bauer,

522 F.2d 242 (7th Cir. 1975), cert. denied

sub nom Cunningham v. Chicago Council of

Lawyers, 427 U.S. 912 (1976) ................ 6, 19

Cox Broadcasting Corporation v. Cohn,

EEE casi cocaceianbeessvccceeses 13

Craig v. Harney,

I cies cdendsenesseeanenss 23

English v. McCrary,

EEE, BEUED sesccccccecesccescces 20

Gannett Co., Inc. v. DePasquale,

___ N.Y. ____ N.E.2d__, No. 549

EE CIS sci dccaddevecsanedacscees 22

CITATIONS (Continued)

In Re Oliver,

ED Scvuvévvcacsounsocesds 23

In Re The Washington Post Company, et al.,

No. 76-1695 (4th Cir., filed July 19, 1976) 6, 18, 19

Keene Publishing Corp. v. Keene District

Court.

7 ° | ; - .

No. 7953 (November 23, 1977) ................ 21

Lewis v. Peyton,

352 F.2d 791 (4th Cir. 1965) ................... 24

Miami Herald Publishing Company v. Collazo,

329 So.2d 333 (Fla.3d Dist.Ct.App. i976) cert.

I, SEN I gd Gbdundedus eas cctecccs 20

Miami Herald Publishing Co. v. Tornillo,

icc techie tha becdabeed’ 18

National Socialist Party of America v. Skokie,

__. U.S. —__, 97 S.Ct.___,, 53 L.Ed.2d 96

neater ees ee 28

Nebraska Press Association v. Stuart,

a a 5, 6, 7, 16

19, 20, 28

CITATIONS (Continued)

Page

News-Press Publishing Co., Inc. v. State,

345 So.2d 865 (Fla.2d Dist.Ct.App. 1977); cert.

denied ___ So.2d ___. Case No. 51,639

(November 11, FEV) ..ccccvcivcecscecseasunen 20

Northwest Publications, Inc. v. Anderson,

____ Minn. ____ 259 N. W..2d 254 (1977) ..... 21, 27

Pell v. Procunier,

hil | ft) | Se 13

Philadelphia Newspapers, Inc., et al.,

etc. v. Jerome,

No. 77-308 (Pa. 1977), appeal

docketed No. 384 (1977) .........cccceccccees 7, 21

Schiavo v. United States,

504 F.2d (3rd Cir. 1974) cert. denied sub

nom Ditter v. Philadelphia Newspapers, Inc.

410 UD. MBB CRRGED oc ccccoccccctsussanueue 28

Sheppard v. Maxwell,

S06 UD. SEB CHRD ocsccccccssccuanseun 5, 14, 18

State ex rel Dayton Newspapers, Inc. v. Phillips,

SE1 NERS 199 ( 1G0E) . oo ov ccccdveccccaueceueees 21

iv

CITATIONS (Continued)

Page

State ex rel Gore Newspapers Co. v. Tyson,

313 So.2d 777 (Fla. 4th Dist. Ct.

App. 1976) overruled on oth. gnds.

English v. McCrary,

348 So.2d 293 (Fla. 1977) .................000 20

State ex rel. Miami Herald Publishing

Company v. Mclntosh,

Cs 20

State v. Allen.

eeNM FS , 373 A.2d 377

ES 17, 21

Thomson v. Cash,

107 NN... —__—.. 377 A.2d 136, (1977) ........... 21

United Press Association v. Valente,

308 N.Y. 71, 123 N.E.2d 777 (1954) ............ 23

United States ex rel. Bennett v. Rundle,

419 F.2d 599 (3rd Cir. 1969) ................... 24

United States v. Columbia Broadcasting System, Inc.,

497 F.2d 102 (5th Cir. 1974) ................... 15

United States v. Dickinson,

465 F.2d 496 (5th Cir. 1972) ................... 23

CITATIONS (Continued)

Page

United States v. ‘Mitchell,

551 F.2d 1252 (D.C. Cir. 1976), cert. granted

sub nom Nixon v. Warner Communications,

Inc., 45 U.S.L.W. 3651 (March 28, 1977) .... 17, 25

United States v. Tierina, .

412 F.2d 661 (10th Cir. 1969), cert. denied, 396

i) aE rrr err 6, 19

CONSTITUTIONAL PROVISIONS,

STATUTES, RULES:

Federal Appellate Rules 10 (c), 11 (a), 11 (b)....... 25

Fifth Amendment to

the United States Constitution ............... 4

First Amendment to

the United States Constitution .............. 4,11

General Rule 16c of the

Middle District of Florida .................... 26

Local Rule 12, General Rules of

the Middle District of Florida................. 25

Manual for the Clerks of the

United States District Courts................. 25

Moore’s Federal Practice,

V.20, Pawnee SL .BGE) on. ccccccccecscccces 25

vi

CITATIONS (Continued)

Page

Ninth Amendment to the

United States Constitution .................. 4, 23

Sixth Amendment to the

United States Constitution .................. 15

MISCELLANEOUS:

American Bar Association Legal Advisory Commit-

tee on Fair Trial and Free Press, Draft Report,

(August, 1977) Standard 3.5 ............... 17, 27

American Bar Association, Recommended Court

Procedures to Accommodate Rights of Fair

Trial and Free Press (August 1976) ........ 27

“Free Press — Fair Trial’, A Staff Report of the

Subcommittee on Constitutional Rights of the

Senate Committee on the Judiciary, 94th

oo ES rere 17

Heller, The Sixth Amendment to the Constitution

of the United States (1917) p. 155 ............. 23

Lord Coke, Second Institutes . ie aaa eee 23

Radin, The Right to a Public Trial, 6 Temple L.

Quarterly, 381-383 (1932) ..................... 23

Wigmore, Evidence (3rd Ed. 1940) §2250.......... 23

Vii

in the

Supreme Court

of the United States

OCTOBER TERM, 1977

No.

MIAMI HERALD PUBLISHING COMPANY,

GENE MILLER, TIMES PUBLISHING

COMPANY and ANGEL CASTILLO

Petitioners,

v.

THE HONORABLE BEN KRENTZMAN

United States District Court for

the Middle District of Florida

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals, reported at 558

F.2d 1202, appears in the Appendix to this Petition. No

formal opinion was rendered by the District Court, but

excerpts of a transcript of the hearing in which the Dis-

trict Court explained its actions, a written order based

on that explanation and affidavits describing further

actions based on the District Court’s explanation are

also included in the Appendix.

JURISDICTION

The judgment of the Court of Appeals was entered

September 12, 1977. A timely petition for rehearing en

banc was denied without opinion on October 18, 1977,

and this petition for certiorari has been filed within 90

days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1.

Whether a Federal Trial Judge violates Con-

stitutional safeguards when he uses “trial

management’ techniques to close trial

proceedings solely to limit press coverage of a

trial when there exists merely a ‘‘bare

possibility’ of preiudice to a fair trial.

2.

Whether, a Federal Trial Judge can utilize

“trial management” techniques to limit the

news concerning a trial without violating com-

mon law rights to open judicial proceedings

and records when there is no showing open

proceedings and records will prejudice a fair

trial.

3.

Whether, in the exercise of its supervisory

power, this Court should require a Federa!

Trial Judge to afford notice and hearing to a!

fected parties prior to entry of an order closin:

a judicial proceeding, reduce such order to

writing and exhibit compliance with Con-

stitutional requirements.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the First, Fifth, and Ninth

Amendments to the United States Constitution. The

relevant portions of those Amendments are:

First Amendment: “‘Congress shall make no law

abridging the freedom of speech, or of the

9

a

Fifth Amendment: ‘“‘No person shall ... be

deprived of life, liberty, or property, without due process

of law...”

Ninth Amendment: ‘The enumeration in the Con-

stitution, of certain rights, shall not be construed to

deny or disparage others retained by the people.”’

INTRODUCTION

This petition arises from a collection of orders en-

tered and actions taken by a federal trial judge

restricting public and press access to documents,

testimony and legal argument during the lengthy trial of

former United States Senator Edward J. Gurney.' These

restrictive orders were not docketed and when entered

were not publicly disclosed. Petitioners discovered their

existence only from experiencing their impact.

‘Senator Gurney was tried twice and ultimately acquitted.

This petition involves the first of these trials (U.S. v. Gurney,

U.S.D.C., M.D.Fla., Case No. 74-122-Cr), which began on

February 24, 1975 and ended on August 6, 1975. Respondent was

the presiding judge at this trial.

In Nebraska Press Association v. Stuart, 427 U.S.

539 (1976), this Court set forth constitutional standards

applicable to trial judges’ use of direct prior restraints

on publication to prevent pretrial publicity relating to

criminal cases. Although this Court did not there rule

that such prior restraints could never be entered, the

standards set forth may well point to that conclusion.’

Nevertheless, this Court’s decision in Nebraska Press

Association and its reliance on Sheppard v. Maxwell,

384 U.S. 333 (1966) suggested several possible alter-

natives in the nature of “‘trial management”’ might ex-

ist. Since Nebraska Press Association, trial courts seek-

ing to control trial publicity increasingly have employed

the suggested trial management techniques and, in this

and some other cases, have used techniques not

suggested.

Trial management techniques utilized have fallen

into two categories: “‘no comment” orders to trial par-

ticipants, and “‘closure”’ orders closing trial proceedings

and documents to press and public. ‘No comment’ or-

ders, specifically mentioned in Nebraska Press Associa-

tion. supra, and Sheppard v. Maxwell, supra*, do not

directly affect the »roceedings themselves; instead they

directly restrain the extrajudicial conduct of persons

over whom the Court already has jurisdiction, and only

collaterally affect persons (such as press and public)

outside the judicial system. In contrast, “‘closure’’ orders

do not directly restrain persons within the judicial

system; instead they close normally public proceedings

*See Id., at 570, 570-71 (White, J., concurring); /d., at 572, 572-

73 (Brennan, J., concurring); /d., at 617 (Stevens, J., concurring).

9427 U.S. at 553-554, 384 U.S. at 362-363.

and seal normally public records, and their direct im-

pact is on persons outside the judicial system,

specifically, press and public.

A majority of the Circuit Courts have rendered

decisions discussing the standards for use of trial

management techniques. One Circuit has dealt with

both types, holding a closure order sealing judicial docu-

ments a prior restraint‘ and presumably subject to

Nebraska Press Association tests, but holding a no com-

ment order sustainable if a ‘reasonable likelihood”’ of

threat to a fair trial be shown.°* Four other Circuits have

dealt with no comment orders, two (the Sixth and

Seventh Circuits) permitting their entry only when they

are necessary to alleviate a “serious and imminent

threat” to a fair trial® and two (the Ninth and Tenth)’

4In Re The Washington Post Company, et al., No. 76-1695 (4th

Cir., July 19, 1976) (App. 67).

‘See Central South Carolina Chapter, Society of Professional

Journalists, et al. v. Martin, 556 F.2d 706 (4th Cir. 1977), cert.

denied. No. 77-263 (January 9, 1978). Judge Widener was on the

panel in both Fourth Circuit decisions.

6C BS. Inc. v. Young, 522 F.2d 234, 241 (6th Cir. 1975); Chicago

Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert.

denied sub nom. Cunningham v. Chicago Council of Lawyers, 427

U.S. 912 (1976).

"United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969), cert.

denied. 396 U.S. 990 (1969). The Solicitor General has stated the

“reasonable likelihood”’ test was also adopted by the Ninth Circuit

in Farr v. Pitchess, 522 F.2d 464, 468 (1975), cert. denied, 427 U.S.

912 (1976). See Brief for Respondent in Opposition, Central South

Carolina Chapters, Society of Professional Journalists, et al. v.

Martin. supra rote 5.

apparently joining the Fourth in the “reasonable

likelihood” test. Other than the Fourth Circuit, only the

Fifth Circuit in this case has addressed a closure order,

and it endorsed entry of such orders if the trial judge

finds a “bare possibility” of danger to the administra-

tion of justice.

In short, six of the eleven Circuit Courts have ren-

dered decisions on the use of trial management devices

and applied at least three different standards. Further-

more, the highest courts of several states have rendered

decisions in this area and are in comparable disagree-

ment.’ This case affords this Court the opportunity to

articulate the proper constitutional standards for

closure of judicial proceedings and thus provide much-

needed guidance on important questions of con-

stitutional law not only unresolved but increasingly

recurring after Nebraska Press Association, supra.

SOne of these decisions is the subject of an appeal to this Court.

Philadelphia Newspapers, Inc., etc., et al. v. Jerome, No. 77-308.

The Pennsylvania Supreme Court’s decision was vacated and the

case remanded for further proceedings to clarify the record on

January 9, 1978.

STATEMENT OF THE CASE

I. The District Court

1. The Public Interest in the Trial.

The charges against Senator Gurney, criminal mis-

use of office, had been the subject of extensive news

coverage by Petitioner newspapers and all other Florida

newspapers, radio and television stations for the two

years prior to the trial. Petitioner reporters were

assigned to daily coverage of the trial and represen-

tatives of many print and broadcast media also atten-

ded the trial.

The press and broadcast trial coverage was bal-

anced and subdued. No intimation of “‘sensational”’

coverage was made. The judge complimented the press

on its reporting (App. 34, 36).

2. Conduct of the trial.

The trial judge daily gave standard cautionary in-

structions.’ Incontestably these instructions were

proper; equally incontestably these instructions were

followed (App. 33, 36). The jury was not sequestered un-

til it commenced deliberations.

°He daily instructed all jurors “not to discuss the case, not to

read any newspapers other than those cleared by counsel and given

to the jurors by the Clerk, and not to listen to or view broadcasts

concerning the trial’. 558 F.2d at 1205.

3. The Restrictive Orders.

With the admitted purpose of preventing publica-

tion of matters not submitted to the jury,’ the trial

judge entered orders and took actions so as to close to

press and public portions of the trial proceedings not

submitted to the jury. These actions included (i) bench

conferences while the jury was absent from the court-

room, (ii) sealing of transcripts of bench conferences,

(iii) sealed communications between judge and jury af-

ter its sequestration, (iv) instructions to the court clerk

Lo refuse inspection of exhibits in evidence exhibits

presented in open court but not yet admitted into

evidence, exhibits offered but rejected, and court ex-

hibits, (v) limitations on public or press inspection of all

exhibits, and (vi) instructions to trial participants not to

speak to the press.!!

(i) Bench conferences

A complete transcript of the trial was never

prepared, but a partial transcript of the trial showed

some 400 bench conferences which, if transcribed, would

apparently cover 4,000 pages. Many of the bench con-

ferences were helu with the jury excused. !”

‘That the press was the target of these various actions was

acknowledged by the Fifth Circuit. 558 F.2d at 1206.

''The trial judge’s no comment orders were not the subject of

the appeal to the Fifth Circuit and their validity is not challenged

by this Petition.

?This information was determined by a review of the record

made by Counsel for Petitioners in December, 1977. This record

was mainly prepared in connection with the second trial of Senator

Gurney after this appeal was taken to the Fifth Circuit.

These bench conferences involved proffers of

testimony or exhibits, objections, legal argument, and

rulings. One bench conference involved a 26 minute

testimonial proffer, after the jury was excused from the

courtroom, by one of Senator Gurney’s codefendants as

to whether the government promised not to indict him if

he changed his testimony as to a key conversation in-

volving Gurney. (App. 45-46)

Despite the jury’s absence and the obvious public

interest in the issue raised by the question, the judge

carefully staged the proffer at the bench so as to be in-

audible to press and public.

(ii) Sealing of transcripts

Whenever Petitioners sought transcripts of bench

conferences, the judge ordered the transcripts sealed.

Thus:

Those matters were proffered outside of the

presence of the jury and I have directed the

court reporter to seal them. You will not be

able to get that. (App. 47).

(iii) Judge-jury communications after sequestra-

tion.

After the jury was sequestered for its deliberations,

the jury delivered to the judge a written communication

relating to one of the judge’s jury’s instructions. The

judge summoned the attorneys to a 38 minute bench

conference which, although the jury was sequestered,

was conducted so as to be inaudible to press and public.

After a lengthy recess to prepare a written response, the

10

judge held another bench conference with the attorneys.

The jury request was then made a court exhibit, which

the press then sought to inspect. The judge refused and

ordered the exhibit sealed. (App. 47-48). The next day,

the judge replied in writing to the jury. Again the press

sought to inspect the reply and again the judge refused

and sealed the exhibit. (App. 52-53).

(iv) Denial of permission to inspect exhibits.

As the Fifth Circuit summarized, ‘‘Afier the trial

got under way . . . the appellant newsmen sought to in-

spect various documents and exhibits, some of which

were in evidence and some of which were only identified.

The Clerk refused access to many of these items pur-

suant to oral directions of the district judge.” 558 F.2d

at 1205. As the judge stated:

*.. And, Mr. Castillo, you are not going to

be allowed to look at all the exhibits received in

evidence but not read to the jury. And if that

be trespass on the First Amendment, so be it

... that is what I am going to do.” (App.40).

(v) Limitations on access to all exhibits.

The trial judge did not restrict inspection to a

“pool” reporter or specify times for inspection. Instead

he simply limited access to the clerk’s administrative

convenience and declined to establish any standards for

exercise thereof. 558. F.2d at 1209, n. 11

11

4. Non-disclosure of Existence or Scope of Closure

Orders |

The judge did not make public his closure orders

nor did he give press or public prior or subsequent notice

of his intent to issue them or their issuance; obviously,

no opportunity to be heard thereon was afforded. For ex-

ample:

If, to present a fair trial in this Courtroom, I

have to stop and enter a written Order every

time I do it — if somebody tells me I have to do

it, I will do it, but not until. And I am not going

to have a hearing and give a due process hear-

ing to the press before I do it.”” (App. 34).

The press and public were thus unaware of the or-

ders until their impact was perceived. Much informa-

tion about the nature and extent of the closure orders

and the trial judge’s admission as to their purpose were

not divulged until Petitioners moved to vacate those or-

ders of which they had become aware, and a hearing was

held on this motion.

5. The orders were routinely entered without

regard to the rights of press and public.

In entering the closure orders, the trial judge was

concerned only with ensuring a fair trial, although he

was aware of the threat such orders present to the public

auditing of the administration of justice. (See, e.g. App.

57, 63).

The trial judge’s stated reason for his restrictive or-

ders was the “‘bare possibility” the jury would violate his

12

cautionary instructions and read the newspapers, even

though he stated he had no reason to believe any juror

would do so and he simultaneously complimented the

press on its reporting of the trial.’

II. The Fifth Circuit

The Fifth Circuit affirmed the District Court’s or-

ders. While noting “the questions presented here could

affect many other cases’”’ but were “largely unsettled’’,

558 F.2d 1207, that court’s rationale for its decision is

not clear.

The court characterized the case as one of “‘access”’

or “news gathering” but did not make that issue dis-

positive. Thus, while concluding that under Pell v.

Procunier, 417 U.S. 817 (1974), press access should not

exceed that of the public,'* the court stated that “‘what

right of access the public has. . . , [which] has yet to be

'STHE COURT: .. . I hope that the jury is not reading what is

in the newspapers. I don’t think they are. But there is always that

bare possibility.

* * *

I mean the press is doing actually a remarkable job.

I have come to a renewed appreciation for investigative jour-

nalism.” (App. 36).

“Contrary to these implications in the Fifth Circuit’s opinion,

Petitioners have not asserted here a greater right of press than

public to witness a trial. Although this Court has observed the

special posture of the press in trial coverage for the public benefit

(Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975)), and

although adequate management may require use of a “pool repor-

ter’’ for access to trial events rather than the general public, the in-

terests of press and public in the subject matter here are identical.

13

defined by the Supreme Court, is not required [to be

determined] by the limited questions presented for

review here.” 558 F.2d at 1209, n.10 The court also ap-

parently in part'based its decision on its erroneous belief

that alternative sources existed for the information

sought, 558 F.2d 1208."

The key to the Fifth Circuit’s decision is its conclu-

sion that closure of portions of the trial did not involve

First Amendment protections. This being so, there were

no limitations on the trial judge’s selection of “trial

management” techniques:

“The First Amendment does not protect

against whatever incidental burdens on

newsgathering occurred in this case. The trial

judge employed reasonable ‘remedial

measures’, far short of prior restraints, to pre-

vent possible prejudice and maintain an or-

derly trial. See Sheppard, supra, 384 U.S. at

362, . . . The district court’s rulings denying

press access implemented a legitimate

governmental interest in securing for the ac-

cused the fair trial guaranteed them by the

Sixth Amendment. The court’s actions bore a

reasonable relation to the achievement of that

purpose.”’ 558 F.2d at 1211 (emphasis supplied)

The Fifth Circuit, concerned with the “ ‘heavy obliga-

tion [which] rests on trial judges to effectuate the fair-

'SThe Fifth Circuit suggested that “‘the parties, the witnesses,

the attorneys, and members of the public generally” were sources of

information. 558 F.2d at 1208, n. 8. In fact the defendants and their

attorneys had been subjected to a no comment order. (App. 57, 59).

14

trial guarantee of the Sixth Amendment.’ United States

v. Columbia Broadcasting System, Inc., 497 F.2d 102,

104 (5th Cir. 1974),” afforded the trial judge broad dis-

cretion and concluded that within his inherent power

over trial management the trial judge may not only seal

the lips of trial participants but may also close portions

of the trial itself if that closure order bears a “reasonable

relation” to protecting Sixth Amendment interests. By

its reference to “possible prejudice’, the Fifth Circuit

apparently approved the trial judge’s “bare possibility”

justification for his orders.

The Fifth Circuit thus believes closure orders need

not be based either on (i) any shown degree of pre-

judicial publicity or (ii) any shown degree of necessity

for the degree of restriction employed.

15

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW RAISES A

SIGNIFICANT, RECURRING AND UN-

RESOLVED PROBLEM CONCERNING

THE POWER OF TRIAL JUDGES TO

CLOSE PORTIONS OF PUBLIC TRIALS TO

THE PUBLIC AND PRESS AND THE CIR-

CUMSTANCES UNDER WHICH SUCH

POWER MAY BE EXERCISED.

(a) The decision below raises the significant question

of what circumstances justify the entry of orders

closing portions of trial proceedings and records to

press and public.

This case goes to the heart of current issues of fair

trial-free press.'© The Fifth Circuit here has accorded

federal trial judges under its supervision virtually un-

limited discretion to selectively close portions of public

trials whenever they perceive the “bare possibility” of

prejudice to the administration of justice. Since

Nebraska Press Association, and possibly in part

because of that decision a number of other courts, a

Congressional Committee, and an ABA Committee ap-

pointed to study the problems raised by closure orders

have considered what standards should be applied to

'6Justices of this Court have recognized the issue of closure or-

ders as one of constitutional dimension, yet unresolved. Nebraska

Press Association v. Stuart, supra, 427 U.S. at 564, n. 8; 427 U.S. at

576, n. 3 (Brennan, J., concurring, joined by Stewart and Marshall,

J. J.)

16

“trial management” techniques, with varying results.

All authorities, however, including the Fifth Circuit,

acknowledge the “importance of the rights involved’”’

the “continuing nature’ of the problem, and that

‘‘many other cases”’ will be affected by the resolution of

the issues. 558 F.2d at 1207.

With the exception of the Fifth Circuit, no

authority has approved standards permitting closure of

judicial proceedings or records after commencement of

the trial without a showing meeting stringent “clear and

present danger’, “serious and imminent threat’ or

similar tests. See e.g., State v. Allen, 373 A.2d 377 (N.J.

1977) (applying such standards to bench conferences

and other in camera proceedings); In Re Washington

Post Company, et al., supra note 4; United States v.

Mitchell, 551 F.2d 1252 (D.C. Cir. 1976), cert. granted

sub nom Nixon v. Warner Communications, Inc., 45

U.S.L.W. 3651 (1977); ‘“‘Free Press-Fair Trial,” A Staff

Report of the Subcommittee on Constitutional Rights of

the Senate Committee on the Judiciary, 94th Cong., 2d

Sess. (1976), draft report, ABA Legal Advisory Commit-

tee on Fair Trial and Free Press (August 1977). As was

stated in commen! ary to Standard 3.5 of the ABA Legal

Advisory Committee’s draft report, ““The presumption

is strongly in favor of open judicial proceedings and un-

sealed records.”’

If permitted to stand the Fifth Circuit’s decision

will prevent the press from being the ‘“‘handmaiden of ef-

17

fective judicial administration,’'” closely auditing

judicial power and critically evaluating the judicial

process; instead the press will be relegated to what this

Court has held'it is not — a “passive receptacle or con-

duit for news . . .”'* the judiciary is willing to make

public.

(b) The “standard” for closure endorsed by the Fifth

Circuit conflicts with decisions of other courts of

appeal and state courts as to the requirements for

entry of closure orders.

1. Courts of Appeals.

The Courts of Appeals which have considered the

propriety of the use of trial management devices have

applied at least three, possibly four, different tests:

(i) Fourth Circuit on “‘closure’’ orders: a ‘‘prior

restraint”’ test.

In In re Washington Post Company, supra, the

Fourth Circuit equated a trial court’s sealing of court

'“*The principle that justice cannot survive behind walls of

silence has long been reflected in the ‘Anglo-American distrust for

secret trial.’ A responsible press has always been regarded as the

handmaiden of effective judicial administration, especially in the

criminal field .. . The press does not simply publish information

about trials but guards against the miscarriage of justice by sub-

jecting the police, prosecutors and the judicial process to extensive

public scrutiny and criticism.” Sheppard v. Maxwell, supra, 384

U.S. at 350.

'SMiami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258

(1974).

18

files with a “prior restraint”. (App. 68) Although the

court made no reference to any test, presumably it

would apply the standards of Nebraska Press Associa-

tion to this as it would to all other prior restraints.

(ii) Fourth and Tenth (and possibly Ninth) Cir-

cuits on ‘‘no comment’ orders: the

“reasonable likelihood” test.

The Tenth Circuit and more recently the Fourth

Circuit'® have concluded no comment orders are

justified where there is a reasonable likelihood of

prejudice to a fair trial.”°

(iii) Sixth and Seventh Circuits on ‘“‘no comment”

orders: the “serious and imminent threat’

test.

The Sixth and Seventh Circuits have held no com-

ment orders can only be imposed where a serious and

imminent threat to a fair trial is shown.?!

(iv) Fifth Circuit on ‘‘closure” orders: the ‘“‘bare

possibili.y”’ test.

The Fifth Circuit here adopted the least demanding

standard of all by approving the trial judge’s “‘bare

'/nited States v. Tijerina, supra note 7; Central South

Carolina Chapter, etc. v. Martin, supra note 5.

2°The Solicitor General believes the Ninth Circuit has also

adopted this test. See note 7, supra.

21Chicago Council of Lawyers v. Bauer, supra note 6, CBS, Inc.

v. Young, supra, note 6.

19

possibility” test. This ‘“‘standard’”’ might more correctly

be designated ‘“‘no standard”’, since the trial judge stated

there was no reason to believe the jury was violating his

cautionary instructions and no reason to believe the

press would publish sensational or misleading informa-

tion about the trial.

2. State Courts.

Most reported state court decisions adopt a strict

test of necessity for entry of a restrictive order generally

in accordance with this Court’s decision in Nebraska

Press Association. There are two recent exceptions, one

of which is the subject of a pending appeal to this Court

and the other of which, Petitioners are advised, will also

be the subject of a request for review by this Court.

(i) Florida. Ironically, Florida’s state trial

judges, in contrast to its federal trial judges, must apply

a stringent test in considering “closure” orders, and

such orders are strongly disfavored.”* In contrast, ‘‘no

comment” orders may be entered merely for “good

cause’’.*5

22Miami Herald Publishing Company v. Collazo, 389 So.2d 333

(Fla. 3d Dist. Ct. App. 1976), cert. denied, 342 So.2d 1100, (sealing

a portion of court files) News-Press Pub. Co., Inc. v. State, 345

So.2d 865 (Fla. 2d Dist. Ct. App. 1977); cert denied, _ So.2d

__, No. 51,639 (November 14, 1977) (sealing deposition

transcript), State ex rel. Gore Newspapers Company v. Tyson, 313

So.2d 777 (Fla. 4th Dist. Ct. App. 1976) (closing trial),overruled on

oth. gnds., English v. McCrary, 348 So.2d 293 (Fla. 1977).

23State ex. rel. Miami Herald Publishing Company v. Mcln-

tosh. 340 So.2d 904, 910 (Fla. 1977).

20

(ii) New Jersey. New Jersey applies the “‘serious

and imminent threat” test to “‘closure”’ orders, State v.

Allen, supra, 373 A.2d at 383, but apparently authorizes

“no comment” orders where reasonable. /bid.

(iii) Minnesota. The Minnesota Supreme Court

has adopted a test similar to Florida and New Jersey

with respect to a trial judge’s sealing of documents

relating to a criminal prosecution, which it deems a

prior restraint, and further requires a writen order

showing exhaustion of alternatives. Northwest Publica-

tions Inc. v. Anderson, __. Minn. ____, 259 N.W.2d 254

(1977).

(iv) New Hampshire. New Hampshire recently

adopted a standard prohibiting closure of pretrial hear-

ings unless there is a “substantial likelihood” of prej-

udice which cannot be avoided by alternative means.

Keene Publishing Corp. v. Keene District Court, ___

N.H. . A.2d __. No. 7953 (November 23,

1977). See also Thomson v. Cash, 117 N.H. ___, 377

A.2d 135 (1977).

(v) Ohio. Tse Ohio Supreme Court has deter-

mined that pre-trial hearings may be closed only on a

finding that “‘publicity will create a clear and present

danger of serious and imminent threat to the ad-

ministration of justice ...” State ex rel Dayton

Newspapers, Inc. v. Phillips, 351 N.E.2d 129, 135 (1976).

(vi) Pennsylvania. The Pennsylvania Supreme

Court held pretrial suppression hearings may be closed

to press and public at the request of the defendant with

no further showing. Philadelphia Newspapers, Inc., etc.,

et al. v. Jerome, supra note 8. This Court recently

21

2

vacated the Pennsylvania Supreme Court’s decision and

remanded the case for clarification of the basis for its

decision.

‘

(vii) New York. The New York Court of Appeals

recently ruled that closure of a preliminary hearing of

two youths accused of murder was permissible because

this matter involved “mere curiosity” rather than

“legitimate public interest.’ The court indicated a dif-

ferent rule could apply to trials such as the one here in-

volved: “In trials involving public officials for instance,

the public may have an overwhelming interest in keep-

ing all proceedings open”’ for there ‘“‘the public’s concern

. . . [would be] focused on prosecutorial or judicial

accountability.”” Gannett Co., Inc. v. De Pasquale, —

N.Y. , N.E.2d , No. 549 (December 19

1977). Other than to create a presumption in favor of

closed pre-trial hearings involving “mere curiosity’,

New York does not adopt any standard for application of

the presumption.

(c) The decision below raises the significant question

of whether closure orders permissible under the

“bare possibility”’ standard so substantially limit

as to imperil the common law public rights of

public trial and public records.

(i) The common law public right of access to a

public trial.

The Fifth Circuit’s decision raises a serious ques-

tion as to the continued existence of the common law

public right to a public trial. The tradition of open

22

judicial proceedings has existed for centuries** and in

the American colonies antedates our Revolution by more

than 100 years.*5 Thirty years ago this Court reaffirmed

the common law rule, holding: “‘A trial is a public event.

What transpires in the courtroom is public property.”

(Craig v. Harney, 331 U.S. 367, 374 (1947)). Shortly

thereafter this Court traced in most compelling terms

the ancient Anglo-American distrust for secret trials and

the traditional requirements that “every criminal trial

[be] subject to contemporaneous review in the forum of

public opinion” so as to be “‘an effective restraint on

possible abuse of judicial process.” Jn re Oliver, 333 U.S.

257, 268, 270 (1948). The right of public trial being an

“immemorial right’’’*, under the Ninth Amendment it

was “retained by the people’’.

A public trial insures the public’s right to know how

justice is administered, which is of particular impor-

tance in prosecutions and trials claimed to be

“political” (United States v. Dickinson, 465 F.2d 496,

501 [5th Cir. 1972] .2”7 This public right transcends the

*4See Lord Coke, Second Institutes, 103-104; Wigmore,

Evidence. (3d Ed. 1940) §2250.

25See generally, United Press Association v. Valente, 308 N.Y.

71, 89-94, 123 N.E.2d 777, 786-788 (1954) (Frossel, J., dissenting);

Heller, The Sixth Amendment to the Constitution of the United

States. (1917), p. 155.

*6Radin, The Right to a Public Trial, 6 Temple L. Quarterly

381-383 (1932).

27In this case not only was a former U.S. Senator on trial for

claimed political corruption, but the claims of “political trial’’ and

doubts about the judicial system’s ability to cope with such an un-

precedented matter also placed the Department of Justice and the

entire system of justice on trial in the eyes of the public.

23

personal right of the criminal defendant to close a trial

(e.g., Lewis v. Peyton, 352 F.2d 791 [4th Cir. 1965]). In

fact, any proposed limitations on ‘‘the constitutional re-

quirement of a public trial must be tested by a standard

of strict and inescapable necessity”. United States ex

rel. Bennett v. Rundle, 419 F.2d 599, 607 (3rd Cir. 1969)

(emphasis supplied).

Despite the Fifth Circuit’s contrary belief, the

centuries-old common law right of full public entry to

judicial proceedings is fundamental to this case. The

Fifth Circuit here endorsed a trial judge’s unfettered

discretion to close to press and public all those portions

of a trial not submitted to a jury, and the trial judge’s

actions as effectively closed those portions as if he had

locked the courtroom doors. Decisions made in bench

conferences are as likely as those rendered in open court

to constitute abuse of discretion, and may never be

judicially reviewable.?* Allowing the public to view only

what is presented to a jury vitiates the public’s role as

monitors of those decisions and the judicial system it-

self. The result, at minimum, is public suspicion of the

judicial process; the very presumption of fairness and

integrity enjoyed by the judiciary is the product of the

tradition of open judicial proceedings.

2°Thus if a ruling on the admissibility of a confession or other

evidentiary ruling should frustrate a prosecution (and thereby the

public represented by the prosecutor), and the jury therefore ac-

quit, no judicial review is possible. If a ‘“‘no-comment” instruction is

given trial participants during a bench conference (as was the case

here), the trial judge’s actions will never see light of day. See also

App. 63.

24

(ii) The common law public right of access to

public records.

The decision of the Fifth Circuit also violates the

common law principle that judicial records are public

records by permitting their closure without establishing

a standard for so doing. See United States v. Mitchell,

supra. The Fifth Circuit specifically held that ‘‘exhibits

produced under subpoena and not yet admitted into

evidence, . .. [were] not yet in the public domain”

(558 F.2d at 1210), and sanctioned the trial judge’s stan-

dardless limitations on access to admitted exhibits. Cf.

United States v. Mitchell, supra.

That exhibits offered but rejected, exhibits iden-

tified or authenticated in open court but not yet admit-

ted into evidence, written communications between the

judge and jury once made court exhibits, and all other

exhibits remanded to the custody of a court clerk are

public records seems incontestable.?® Once these docu-

29See Local Rule 12, General Rules of the Middle District of

Florida. As noted by the District of Columbia Circuit in United

States v. Mitchell, supra, Rule 10(a), Federal Appellate Rules re-

quires that exhibits be part of the record on appeal and the Manual

for the Clerks of the United Sta:es District Courts prepared by the

Judicial Conference of the United States pursuant to its authority

under 28 U.S.C. §457 (1970), classifies exhibits as ‘‘auxiiiary case

records’’. 9 Moore’s Federal Practice {21.04[2], pp. 1613, 1614, con-

strues Federal Appellate Rule 10(a), to the effect that the trial

record includes all exhibits offered in the proceeding and notes the

need to show in the transcript where exhibits were “identified, of-

fered, and received or rejected’’. See also Federal Appellate Rules

11(a) and 11(b). In fact, this being a criminal case involving a mem-

ber of Congress, all these exhibits are “records of continuing value”’.

Manual for the Clerks of the United States District Court, Exhibit

2, (Ref. 1301.4) at p. 2 (1954).

Oe

ments became public records the clerk was required to

make such documents available to press and public.°°

“CE. General Rule 16(a), Rules of the Middle District of

Florida, which prohibit disclosure only of “information that is not

part of the public records of the Court”.

26

RS SRS ENS SO En ee

II.

THE DECISION BELOW RAISES THE

SIGNIFICANT, RECURRING AND UN-

RESOLVED PROBLEM OF WHETHER EN-

TRY OF A CLOSURE ORDER MAY BE

CONSIDERED WITHOUT PRIOR COM-

PLIANCE WITH PROCEDURES MEETING

DUE PROCESS REQUIREMENTS.

The Fifth Circuit affirmed the trial judge’s orders

entered without notice to Petitioners and other in-

terested parties and without hearing, despite the Fifth

Circuit’s concession that Petitioners were the targets of

these orders. As targets Petitioners’ substantial interests

could not be eliminated without prior notice and an op-

portunity to be heard. Carroll v. President and Com-

missioners of Princess Anne, 393 U.S. 175 (1968).

Furthermore, failure to put the restrictive orders in

writing or docket them prevented the target from even

learning of their existence or scope until the trial was

nearly over.

Recent studies and cases as to the procedural

minimums constitutionally required prior to considera-

tions of entry of closure orders all mandate notice to

press and public and affording an opportunity to be

heard,*! although the same result could be reached

31See, e.g., Recommended Court Procedures to Accommodate

Rights of Fair Trial and Free Press, adopted by American Bar

Association, August, 1976; Standard 5.1(a); Draft Report,

American Bar Association Legal Advisory Committee on Fair Trial

and Free Press (August, 1977); Northwest Publications v. Ander-

son. supra.

27

through this Court’s exercise of its supervisory power

over the lower federal courts.*?

Even the trial judge haltingly acknowledged that

prior notice and hearing might well have tempered the

orders’ scope and effect. Closure orders entered without

these procedural protections necessitate hurried, and

normally fruitless, attempts to secure appellate review.

As the Fifth Circuit noted, Petitioners sought expedited

review of the trial judge’s actions, once discovered,

through petitions for writs of mandamus and prohibi-

tion, 558 F.2d at 1206, n. 4. These petitions were denied

after the trial was over.*® Certainly this is no real

remedy. Fundamental due process certainly requires

more, for where First Amendment rights are involved,

they may not be restrained without prior provision of

“strict procedural safeguards, including im-

mediate appellate review.”’ National Socialist Party of

America v. Skokie, __. U.S. ___, 53 L.Ed.2d 96

(1977).

32See Schiavo v. United States, 504 F.2d 1 (3rd Cir. 1974) (en

banc) cert. den. sub nom Ditter v. Philadelphia Newspapers, Inc.,

419 U.S. 1096 (1975).

33Cf. Nebraska Press Association v. Stuart, 423 U.S. 1329, 1329

(1975) (Blackman, Circuit Justice) (“In this sense [restraint upon

the reporting of news by the media], delay itself is a final deci-

sion.’’)

28

oe 2 tee ee eee,

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Fifth

Circuit.

William C. Ballard Parker D. Thomson

BAYNARD, LANG Sanford L. Bohrer

AND BALLARD PAUL & THOMSON

669 First Avenue North 1300 Southeast First

St. Petersburg, Florida National Bank Building

33701 Miami, Florida 33131

James D. Spaniolo

One Herald Plaza

Miami, Florida 33101