Petition — Capital Cities Media, Inc. v. Toole

83-5

No. ” mes Siame Court us

SP 28 193

ALEXANDER ¢

Supreme Court of the Uni _

In The

*

October Term, 1983

CAPITAL CITIES, MEDIA, INC., t/d/b/a THE WILKES-

BARRE TIMES LEADER and NEP COMMUNICATIONS,

INC. t/d/b/a WNEP-TV NEWS, THE ASSOCIATED PRESS,

THE PENNSYLVANIA ASSOCIATION OF

BROADCASTERS, and THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS,

Petitioners,

vs.

PATRICK J. TOOLE, JR., Judge of the Court of Common Pleas

of Luzerne County,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

PENNSYLVANIA SUPREME COURT

RALPH E. KATES, III

GRIFFITH, APONICK & MUSTO

ROBERT MAURER

Attorney for Petitioner

Pennsylvania Association

of Broadcasters

407 North Front Street

Harrisburg, Pennsylvania 17101

JACK C. LANDAU

ROBERT S. BECKER

Attorneys for Petitioner

Reporters Committee for

Freedom of the Press

Suite 300

800 18th Street, N.W.

Washington, D.C. 20006

(202) 466-6313

LAWRENCE M. LUDWIG

HENKELMAN, KREDER,

O’CONNELL & BROOKS

Attorneys for Petitioner

NEP Communications, Inc.

200 Bank Towers

P.O. Box 956

Scranton, Pennsylvania 1850:

(717) 346-7922

DONALD LUKE

ROGERS & WELLS

Attorneys for Petitioner

Associated Press

200 Park Avenue

New York, New York 10166

(212) 878-8225

QUESTION PRESENTED

Is it a violation of the First Amendment for a trial judge,

in a criminal prosecution with a sequestered jury, to prohibit

indefinitely:

a) the publication of identities of jurors obtained by the

news media from public records; ‘

b) the publication or broadcast of photographs, sketches,

and/or film of jurors made outside the courtroom; and

c) to restrict public and press access to trial exhibits

admitted into evidence.'

1. The parties to this action are: Capital Cities Media, Inc. t/d/b/a The

Wilkes-Barre Times Leader and NEP Communications, Inc. t/d/b/a WNEP-

TV News, The Associated Press, The Pennsylvania Association of Broadcasters,

The Reporters Committee for Freedom of the Press and Patrick J. Toole, Jr.,

Judge of the Court of Common Pleas of Luzerne County.

. iy ' f ae ae

Page

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Opinion and Orders Below .............cccceeeeeeeeees 1

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Constitutional Provisions Involved .............+++e0005 2

ee a Sree ren eye Cor: 3 ;

Reasons for Granting the Writ ..............000eeeeees 10

I. Publication of Identities of Jurors............... 11

Il. iia. Film, Videotape and Sketches of Jurors. 12

IIk. Access to Trial Exhibits ............ccccscsecves 13 “

| SRGIOG soc v nnpcarcugsbdacebas cise snasssédee tented 16

TABLE OF CITATIONS : ;

Angelico v. Louisiana, 593 F. 2d 585 (Sth Cir. ei

iii

Contents

Page

Associated Press v. United States, _... F. 2d ___., 9 Med.

Ri ED MDs COED <n cx ccieps vevcdepeyiewe 14

Capital Cities Media, Inc. et al v. Toole, No. A-1070

CE DUT diy SEED Cadevcbecesevesadesdegiese 8

Capital Cities Media, Inc. et al v. Toole, 101 E.D. Misc.

Dkt. 1983, Pennsylvania Supreme Court...;........ 7

Capital Cities Media, Inc. et al v. Toole, U.S.

obs 4'g baw bw iinaw'c tices aa’ vec endeeh 12

Commonwealth v. Banks, Criminal Nos. 1290, 1506, 1507,

1508, 1519, 1520, 1524 of 1982, C.P. Luzerne County,

NS a n'y ob ioe bot heehee da baad Ors eipawetes 5, 6, 7

Commonwealth v. Banks, ex rel. Capital Cities Media,

Inc., et al., Nos. 2135, 2195 of 1983............... 9, 10

Gannett v. DePasquale, 443 U.S. 368 (1979)............ 4

Globe Newspapers v. Superior Court, U.S. , 102 S.

nr a Er O4. wl. wehbe cbene eh sence 4, 11

KPNX Broadcasting Co. v. Arizona Sup. Ct., _._.U.S.___,

Pe Ee ae SISO 6 vicienis.c co cutenaPbivecncds 13

Miami Herald v. Tornillo, 418 U.S. 241 (1974) ......... 13

Nebraska Press Association v. Stuart, 423 U.S. 1327

iv

Contents

Page

Nebraska Press Assoc. v. Stuart, 427 U.S. 539 (1976)

conc dhe peeec cadecseccevcse cétbehonedyedteeae 4, 10, 11

Press-Enterprise Co. v. Superior Court, No. 82-556 (cert.

grabbed, Sammary BA, IDGR). «ooh cugc covisciese vbns 3, 165

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

Gs ob) cd bud ras viens cc’ cévevesin gh tcbivate 4, 11, 14

United States v. CBS, 497 F. 2d 102 (Sth Cir. 1974)..... 13

United States v. Dorfman, 8 Med. L. Rep. 2249 (N.D. Ill.

GPR ak cic cwats cee ububusvhs dhbbkod eeeeetGs sale 14

United States v. Gurney, 558 F. 2d 1202 (Sth Cir. 1977),

cert. denied, 435 U.S. 968 (1978) ..............00e- 15

Statutes Cited:

Fourteenth Amendment, Sec. 1 ...........ccceeeeeeees 3

APPENDIX

Opinion and Order of Mr. Justice William J. Brennan,

Jr. in Capital Cities Media, Inc. et al, v. Toole,

U.S. » 108 S. Ce. SSS4 CISES) . vce la

Order of the Pennsylvania Supreme Court in Capital Cities

Media, Inc., et al v. Toole, (Unreported) July 30,

Orders of Judge Patrick J. Toole, Jr. in Commonwealth

of Pennsylvania v. Banks, Crimina! Nos. 1290,

1506, 1507, 1508, 1519, 1520, 1524 of 1982, Common

Pleas of Luzerne County, Pennsylvania (Unreported)

BE BU oa ee ob oy cbc deat ees epuahsvab om 9a

are

No.

In The

Supreme Court of the United States

~~? -

October Term, 1983

CAPITAL CITIES, MEDIA, INC., t/d/b/a THE WILKES-

BARRE TIMES LEADER and NEP COMMUNICATIONS,

INC. t/d/b/a WNEP-TV NEWS, THE ASSOCIATED PRESS,

THE PENNSYLVANIA ASSOCIATION OF

BROADCASTERS, and THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS,

Petitioners,

vs.

PATRICK J. TOOLE, JR., Judge of the Court of Common Pleas

of Luzerne County,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

PENNSYLVANIA SUPREME COURT

_ OPINION AND ORDERS BELOW

The opinion and order of Honorable William J. Brennan,

Jr., Associate Justice of the Supreme Court of the United States,

is reported at 103 S. Ct. Orb pi gla eR Rar Sng

to this petition (14-72).

The order of the Supreme Court of Pennsylvania, dated June

30, Se ee eae ene eee

2

The orders of respondent, Honorable Patrick J. Toole, Jr.,

dated June 3, 1983 are not reported and appear in the appendix

to this petition (9a-14a).

JURISDICTION

The trial court orders were entered on June 3, 1983. The

Pennsylvania Supreme Court order was entered on June 30, 1983.

The opinion and order of Circuit Justice Brennan was entered

on July 13, 1983. The petition for certiorari is filed within ninety

(90) days of the Pennsylvania Supreme Court order. This Court’s

jurisdiction is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment I:

**Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

to peacefully assemble, and to petition the

Government for a redress of grievances.”’

United States Constitution, Amendment VI:

“*In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

impartial jury of the state and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusations; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.”

4

United States Constitution, Amendment XIV, Section 1:

‘*. . . nor shall any state deprive a person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

STATEMENT OF THE CASE

At issue in this case is the constitutionality of a broad restraint

against publication of information obtained by the news media

at public voir dire proceedings in a mass murder trial, and the

constitutionality of severe restrictions on daily news coverage of

the trial. Several days after representatives of petitioners attended

voir dire proceedings, the trial court issued its orders barring

publication of the identities of the jurors; prohibiting publication

of photographs, sketches and/or film of jurors obtained anywhere,

including outside the courtroom; and severely restricting public

and press access to trial exhibits. The trial judge has stated

unequivocally his intént to pursue criminal contempt charges

against petitioners unless prohibited from doing so by this Court.

The present issue is supplemental to the issues raised in Press-

Enterprise Co. v. Superior Court, No. 82-556 (cert. granted,

January 24, 1983).

The record before the Pennsylvania Supreme Court was

through a verified petition containing the following pertinent facts: j

1. Capital Cities Media, Inc. t/d/b/a The Wilkes-Barre Times

Leader is a publisher of a newspaper of general circulation in

northeast Pennsylvania (‘‘7imes Leader’).

2. NEP Communications, Inc. t/d/b/a WNEP-TV News is

a television news broadcaster in northeast Pennsylvania (‘“‘NEP’’).

3. The Associated Press (‘‘AP’’) is a membership non-profit

corporation organized under the laws of the State of New York.

It is a news wire service with the primary purpose of gathering,

editing, and transmitting news reports and photographs to its

1350-member newspapers and its 3300-member broadcast stations

throughout the United States and to other publishers throughout

the world.

4.. The Pennsylvania Association of Broadcasters is a trade

association representing radio and television stations licensed for

broadcasting in the Commonwealth of Pennsylvania. -

5. The Reporters Committee for Freedom of the Press is a

voluntary, unincorporated association of working news reporters

and editors dedicated to defending the First Amendment and the

free flow of information to the public. The Reporters Committee,

headquartered in Washington, D.C., has been involved in many

significant recent media access cases, including Nebraska Press

Assoc. v. Stuart, 427 U.S. 539 (1976); Gannett v. DePasquale,

443 U.S. 368 (1979); Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555 (1980); Globe Newspapers v. Superior Court, ___. U.S.

—__., 102 S. Ct. 2613 (June 23, 1982).

6. On June 3, 1983 Patrick J. Toole, Jr., a judge of the Court

of Common Pleas of Luzerne County, Pennsylvania issued orders,

sua sponte:

(a) prohibiting the news media from ever ‘‘in any

way’’ publishing the identities of jurors even though their

identities are matters of public record and were known

_ to the news media prior to the issuance of the order (see

appendix, 13a'{2 and 10a 44);

(b) absolutely precluding all sketches, photographs,

film, or videotape of any juror, at any place, during their

service in this case (see appendix, 14a 46);

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(c) restricting news media access to trial exhibits in

a manner that effectively barred publication of information

admitted into evidence, even after the jury in the case was

discharged (see appendix, lla 4411, 12).

7. The orders were issued as part of the trial in the case of

Commonwealth v. Banks, Criminal Nos. 1290, 1506, 1507, 1508,

1519, 1520, 1524 of 1982, C.P., Luzerne County, Pennsylvania

(the ‘‘Banks’’ case).

8. The Banks case was a murder trial arising out of the

murder of 13 people and is a matter of local, state, and national

interest.

9. The orders challenged by petitioners were issued without

notice or a hearing, and without a determination on the record

of the necessity for such orders or the availability of less drastic

alternatives.

10. Defendant Banks, received a change of venire from

Wilkes-Barre, Pennsylvania to Pittsburgh, Pennsylvania for jury

selection.

11. The jury was sequestered from June 5, 1983 until the

conclusion of the trial on June 22, 1983.

12. Testimony began on June 6, 1983 and the trial was

concluded on June 22, 1983, with guilty verdicts and death

sentences.

13. On June 6, 1983, a substantial number of photographs,

film, and videotape was taken of the jurors outside of the Luzerne

Couaty Courthouse by representatives of numerous news gathering

organizations. including petitioners.

e

14. On June 7, 1983, the New York Times published one

such photograph, transmitted by AP, which Judge Toole believed

was taken in violation of his orders.

15. Judge Toole warned members of the news media that

violations of his orders would result in exclusion from the trial

of the member of the media believed by Judge Toole to be in

violation of his orders and the news organization on whose behalf

that member was acting at the time. Violations of his orders would

also be punishable by criminal contempt.

16. In addition, on or about June 9, 1983 Judge Toole, sua

sponte, initiated an inquiry as to compliance/non-compliance with

his June 3, 1983 orders. This inquiry consisted of calling individual

news people into his chambers for questioning regarding the source

of the photograph which appeared in the New York Times on

June 7, 1983.

17. The questioning of individual news people was conducted

outside the presence of counse! and without providing the

individual news people with Miranda warnings.

18. Members of petitioner, Times Leader, were questioned

by Judge Toole on or about June 10, 1983.

19. A representative of the Associated Press who was assigned

to cover the trial of Commonwealth v. Banks was also questioned

by Judge Toole regarding the photograph of jurors which was

transmitted over the AP wire.

20. The representative of AP was informed by Judge Toole

that AP would be precluded from further coverage of the trial

if Judge Toole considered his orders to be violated in any way.

ad es ee 4 yee ae

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21. Judge Toole has stated his intention to turn over the

results of his own inquiry to the district attorney for criminal

investigation if not prevented from doing so by a higher court.

22. The representatives of the Times Leader and AP were

precluded, pursuant to Judge Toole’s orders, from inspecting

documents, photos, tapes, and other items which were marked

as exhibits at the trial of Commonwealth v. Banks.

23. Judge Toole’s orders interfered with petitioners’ First

Amendment right to cover the news.

24. On June 13, 1983, counsel for petitioners conferred with

Judge Toole in an effort to have him modify the offending portions

of his orders, raising our constitutional concerns at that time.

Our efforts were unsuccessful.

25. On June 13, 1983, after conferring with Judge Toole,

petitioners filed with the Pennsylvania Supreme Court a verified

“‘Application for Leave to File Original Process ... and

Application for Extraordinary Relief . . .”’, together with a verified

complaint against Judge Toole seeking a writ of prohibition.

Capital Cities Media, Inc., et al. v. Toole, No. 101 E.D. Misc.

Dkt. 1983, Pennsylvania Supreme Court.

26. On the afternoon of Thursday, June 30, 1983, at

approximately 3:30 P.M., counsel were informed by telephone

from the office of the Prothonotary of the Pennsylvania Supremé

Court that a one line per curium order was entered on the record

in that case which stated:

“Application for Writ of Prohibition denied.’’

27. On the afternoon of Thursday, June 30, 1983, at

approximately 3:45 P.M., counse! for petitioners was informed

by Judge Toole that Judge Toole would proceed with enforcement

of his orders by criminal contempt unless prevented from doing

so by your Court.

28. Against this background, applicants came before this

Court and respectfully requested an immediate stay of the prior

restraint orders of Judge Toole. Capital Cities Media, Inc., et

al. v. Toole, No. A-1070 (Received July 2, 1983).

29. The application was entertained by the Honorable

William J. Brennan, Jr. sitting as Circuit Justice. Circuit Justice

Brennan issued an opinion and order on July 13, 1983 (see

appendix }o this petition 1a-Sa), granting some of the relief

requested, denying some of the relief as inappropriate for

emergency action and referring petitioners back to the trial judge

for access to the trial exhibits.’ _

2. While portions of respondent Toole’s orders were not appropriate for

emergency relief because the trial had been concluded, they remain viable for

review by this Court. Respondent Toole asserted two provisions in the

Pennsylvania Rules of Criminal Procedure as the foundation for his orders. Those

two rules state, in pertinent part:

“Rule 326. SPECIAL ORDERS GOVERNING

WIDELY-PUBLICIZED OR SENSATIONAL CASES. In a

widely publicized or sensational case, the Court, on Motion

of either party or on its own Motion, may issue a special order

governing such matters as extra judicial statements by parties

and witnesses likely to interfere with the rights of the accused

to a fair trial by an impartial jury, the seating and conduct

in the Courtroom of spectators and news media

representatives, the management and sequestration of jurors

and witnesses, and any other matters which the Court may

deem appropriate for inclusion in such an Order. In such cases,

it may be appropriate for the Court to consult with

representatives of the news media concerning the issuance of

such a special Order.’’

(Cont'd)

30. On July 22, 1983, petitioners applied to respondent trial

judge for access. The trial judge refused to hear the motion. On

August 9, 1983, the motion for access to trial exhibits was heard

by another common pleas judge who granted access. That decision

was appealed to the Pennsylvania Superior Court by counsel for

defendant Banks and the district attorney. Commonwealth v.

Banks, ex rel. Capital Cities Media, Inc., et al., No. 2135 and

No. 2195 of 1983. The Pennsylvania Superior Court affirmed the

lower court’s grant of access to trial exhibits by orders issued

on August 29, 1983.’

(Cont'd)

“Rule 1111. SEQUESTRATION OF TRIAL JURORS.

(a) The Trial judge may, in his discretion, order sequestration

of trial jurors in the interests of justice. (6) When sequestration

is ordered, each juror, including any alternate, shall be

sequestered from the time of acceptance as juror until

discharged. (c) Nothing in subsection (b) shall prevent a trial

judge from ordering sequestration, at any time during a trial

when the interests of justice require.’’

3. Surprisingly, while the question of access to trial exhibits, which

respondent refused to hear, was pending before the Pennsylvania Superior Court,

respondent issued the following order, again, sua sponte:

““AND NOW, this 19th day of Anguat, 1983, at 10 o’clock

a.m., more than seventy-five (75) days having elapsed since

the jury, sequestered in the above matter, was selected and

sworn and more than fifty (50) days having elapsed since said

jury returned its verdicts in both the trial and sentencing

proceeding, the Court is now ‘satisfied that the privacy and

security of said jurors designed to be protected and promoted

by the Order of June 3, 1983, has been satisfactorily

accomplished and, accordingly, that provision of the Order

of June 3, 1983, providing that: ‘2. No person shall print or

announce in any way the names or addresses of any juror.’

is hereby vacated effective this date. By the Court, /s/ Patrick

J. Toole, Ir., J.” (emphasis added).

ae

10

REASONS FOR GRANTING THE WRIT

The orders of the trial judge in this case constitute direct

prior restraints on publication of information legally obtained

by the news media. These orders are in direct violation of

constitutional principles established by this Court.

This Court has declared that any prior restraint on expression

“‘comes to this Court with a ‘heavy presumption’ against its

constitutional validity.”’ (citations omitted) Nebraska Press Assn.

v. Stuart, 427 U.S. 539, 558 (1976). Thus, before a prior restraint

may issue the trial judge must assess:

*‘(a) the nature and extent of pretrial news

coverage; (b) whether other measures would be

likely to mitigate the effects of unrestrained,

pretrial publicity; and (c) how effectively a

restraining order would operate to prevent the

threatened danger.’’ Jd. at 562.

“~~ In this instance, the respondent trial judge unequivocally

violated these constitutional standards. After members of the news

media had attended the voir dire proceedings, the trial judge issued

the challenged orders. He issued these orders without notice to

the press, without an opportunity for a hearing, and without any

record establishing they were necessary.

Though the trial in the case of Commonwealth v. Banks is

long over, the need for action by this Court remains. If

respondent’s orders are allowed to stand, then other

constitutionally proscribed trial orders of like effect can be issued

with impunity. Given the likelihood that future trials will conclude

before similar orders can be reviewed by higher courts, this issue

will continue to evade appellate review. First Amendment freedoms

are fragile enough without subjecting them to a race to th

11

appellate court between the opening and the closing of a criminal

trial. For this reason, this Court often considers matters which

are capable of repetition, yet which would otherwise evade review.

Nebraska Press Assn. v. Stuart, 423 U.S. 1327 (1975).

I. Publication of Identities of Jurors

Before a prior restraint can be imposed in this context, the

trial judge must determine on the record that there is a danger

of prejudice to the Sixth Amendment rights of the criminal

defendant and that no alternative exists which would adequately

protect those rights. Nebraska Press Association, supra.

Particularly in criminal trials, restrictions on the press must be

narrowly tailored to serve a compelling governmental interest.

Globe Newspaper Company v. Superior Court, __._. U.S. ___.,

102 S. Ct. 1613 (1982); Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980). Further, any such restriction must be based

on an individualized determination made before access is denied.

Globe Newspapers, supra.

Here, the jury was selected from an area of Pennsylvania

far removed from the scene of the crimes and it was sequestered

immediately after it was empanelled. Thus, there was little danger

that the jury would be prejudiced by trial coverage in the local

media. There were no allegations that the defendant had committed

these crimes in concert with others who remained at large. In

addition, jurors were sheltered from the outside world by court

officials. Therefore, any notion that jurors would be harassed

by accomplices or friends of the defendant or unduly influenced

by press coverage were purely speculative.

As Justice Brennan noted in granting an emergency stay of

a portion of the trial judge’s order:

12

*‘Our precedents make clear, however, that far

more justification than appears on this record

would be necessary to show that this categorical,

permanent prohibition against publishing

information already in the public record was

‘narrowly tailored to serve that interest’, if indeed

any justification would suffice to sustain a

permanent order.’’ Capital Cities Media, et al. v.

Toole, A-1070 (Brennan, Circuit Justice, July 13,

1983).

Il. Photographs, Film, Videotape and Sketches of Jurors

Some of the information in possession of petitioners is the

likenesses of the jurors. This information was obtained by members

of the press and the public from personal observation. The

personal observation was obtained at public judicial proceedings,

in public hallways and on public thoroughfares.‘ Some of this

observation was memoralized in the form of photographs, films,

videotapes, or sketches.

However, before petitioners could publish this information,

they were required by Judge Toole to secure his permission. In

so doing, respondent established himself as editor, with the power

4. This case does not involve the right of a trial judge to control activities

within the courtroom. Petitioners are not demanding here the right to photograph

and sketch within the courtroom. Our objections to the trial court orders deal

with the geographical totality of the ban imposed and the prohibition against

sketching even from one’s own memory. Petitioner, NEP, sought permission

to sketch inside the courtroom from Judge Toole. That permission was granted

with the restriction that no juror’s face could appear in the sketches.

13

to determine what was or was not newsworthy.’ As this Court

has stated: ‘‘It has yet to be demonstrated how governmental

regulation of this crucial (editorial) process can be exercised

consistent with First Amendment guarantees of a free press as

they have evolved to this time,’’ (Miami Herald v. Tornillo, 418

U.S. 241, 258 (1974). See also, United States v. Brooklier,

F. 2d ____ (9th Cir. 1982) (overturning restrictions on access to

information revealed by prospective jurors in voir dire); Angelico

v. Louisiana, 593 F. 2d 585 (Sth Cir. 1979) (declaring restrictions

on use of cameras in courthouse halls and outside entrances were

too vague); United States v. CBS, 497 F.2d 102 (Sth Cir. 1974)

(overturning ban on broadcast of sketches made in and outside

a courtroom during a criminal trial).

Ill. Access to Trial Exhibits

First Amendment considerations also apply to access to that

portion of the public record composed of trial exhibits. During

5. The trial judge appeared to base his decision upon language in Mr. Justice

Rehnquist’s response last year to an emergency request for a stay of an order

restricting broadcast of sketches made by television artists present at a criminal

trial:

“I would think that of all conceivable reportorial

messages that could be conveyed by reporters or artists

watching such trials, one of the least necessary to appreciate

the significance of the trial would be individual juror

sketches."’ KPNX Broadcasting Co. v. Arizona Sup. Ct.,

U.S. __, 74 L. Ed. 2d 498 (1982).

It is not clear from the KPNX decision that this personal observation was critical

to Justice Rehnquist’s decision not to stay the orders restricting use of sketches.

Surely, some members of the news media believe the public should know the

identities of jurors. In the instant case, AP ran a photo which UPI did not.

The N.Y. Times printed a photo which other papers did not. Jurors’ potential

biases, prejudices and relationships to trial participants are matters of significant

public concern, as they reflect directly upoa the integrity of the justice system.

14

the course of this trial, petitioners were prohibited from seeing

the trial exhibits or even from speaking with the official court

stenographer. This prevented petitioners from securing such basic

information as the correct spelling of witnesses’ names or the

correct number or identification of the numerous trial exhibits.‘

If the First Amendment guarantee of access to criminal trials,

as first recognized in Richmond Newspapers v. Virginia, 448 U.S.

555 (1980), is to have true vitality, then the public and press must

be allowed to know the content of all evidence introduced at trial.

Similarly, as the Ninth Circuit recently declared, having earlier

recognized a First Amendment right to attend pretrial

proceedings: ‘There is no reason to distinguish between pretrial

proceedings and the documents filed in regard to them.”’

Associated Press v. United States, __. F. 2d ___., 9 Med. L.

Rep. 1617 (9th Cir. May 10, 1983) [citing United States v.

Brooklier, 685 F. 2d 1162 (9th Cir. 1982)]. See also, United States

v. Dorfman, 8 Med. L. Rep. 2249 (N.D. Ill. 1982) (ruling that

the First Amendment right of access to wiretap materials cannot

be denied absent a showing of compelling need); United States

v. Carpentier, 526 F. Supp. 292 (E.D.N.Y. 1981) (denying on

First Amendment grounds a government motion to seal ABSCAM

audio tapes).

6. When one of petitioners’ news people requested copies of the exhibits,

he was informed by Judge Toole that a formal motion by counsel would be

required. When counsel for petitioners had verbally requested copies of exhibits,

Judge Toole requested a written motion be filed to identify which exhibits were

sought. There were 263 exhibits identified at the trial. Because no one outside

of the parties, the trial judge and the court stenographer had access to the exhibit

list, petitioners’ written motion to Judge Toole on July 22, 1983 included a request

for a copy of the exhibit list. When this motion was presented to Judge Toole

he refused to entertain it and referred petitioners to the motions judge, who

referred petitioners to the court administrator, who referred petitioners to the

president judge, who set the matter for hearing before the miscellaneous court

judge two weeks later. The exhibit list was not made available to petitioners until

August 31, 1983, more than two (2) months after the conclusion of the trial.

15

Through his order, respondent sought to hold public

information under his control, enabling him to disseminate it to

those news organizations of his liking or at a time of his choosing.

Nothing in our constitutional history supports such a tyranny by

the judiciary. Respondent has no authority to control what

portions of the public record the press may examine and print.

All exhibits admitted into evidence are ‘‘in the public domain’’

and should be available to the press and public. United States

v. Gurney, 558 F. 2d 1202, 1210 (Sth Cir. 1977), cert. denied,

435 U.S. 968 (1978).

16

CONCLUSION

From the time the first pamphlet was distributed by a

disgruntled colonist condemning a decision of the mighty British

Crown, free press rights have been the rapier of the powerless.

While sometimes the confrontation occurs between parties of

significant resources, it does, occasionally, involve local

newspapers attempting to wrest information from an overzealous

county judiciary. The cutting edge of the First Amendment has

not grown dull from lack of use. It should not be blunted from

striking against the stone of the courthouse.

The issue of a court’s ability to close voir dire proceedings

to the press and the public is presently before the Court for review

in the Press-Enterprise case. We are asking the Court to expand

that review to include the issues of the trial judge’s ability to

prohibit publication of information obtained during voir dire,

to prohibit the photographing and sketching of jurors outside

the environs of the courtroom, and to delay press access to trial

exhibits until the trial judge determines it is convenient. As public

interest in the judiciary grows, demands by the press for access

to information expand. This has been met by increasing resistance

at the trial stage through orders similar to those of Judge Toole.

Continued resort to appellate courts should not be required to

obtain First Amendment guarantees. Petitioners are hopeful that

review by this Court will obviate this problem. '

Therefore, it is respectfully prayed that this Court grant a

writ of certiorari, reverse the decision below, and grant a hearing

to consider the rights of the press and the public in this context.

Respectfully submitted,

RALPH E., KATES, III

Attorney for Petitioners

* ~ és ;

Oe ae ts, ¥ 7 a a | a an

APPENDIX

OPINION AND ORDER OF MR. JUSTICE WILLIAM J.

BRENNAN, JR. IN CAPITAL CITIES MEDIA, INC., ET AL.

V. TOOLE, ____ U.S. ___, 103 S. CT. 3524 (1983)

SUPREME COURT OF THE UNITED STATES

No. A-1070

CAPITAL CITIES MEDIA, INC., ET AL. v. PATRICK J.

TOOLE, Jr., JUDGE OF THE COURT OF COMMON

PLEAS OF LUZERNE COUNTY

ON APPLICATION FOR STAY

(July 13, 1983)

JUSTICE BRENNAN, Circuit Justice.

This is an application for an immediate stay of several or-

ders entered by the Court of Common Pleas of Luzerne

County, Pennsylvania, in connection with a homicide trial in

Commonwealth v. Banks, Criminal Nos. 1290,

, 1519, 1520, 1524 of 1982, that had attracted

interest. The specific orders in ques-

respondent Judge Toole on June 3,

the jury but before its sequestra-

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may handle exhibits except by Order of the Court,”

Pursuant to Pa. Rules Crim. Proc. 326, June

ii

ee. ae

2a

Opinion

111 (hereinafter 111). The application for a stay was first

presented to me on June 18, 1983, but I held it pending action

by the Supreme Court of Pennsylvania on a substantially

identical application for summary relief. On June 21, the

jury returned a guilty verdict in the Banks case and was dis-

charged; on June 30, the Supreme Court of Pennsylvania de-

nied summary relief.. Applicants immediately reapplied to

me fora stay. An initial response was received by telegram

on July 7, with a more complete response submitted on July

13. '

In recent years, several Justices have had occasion to ex-

plain the role of a Circuit Justice in precisely this context,

when a trial court has enjoined the press and other media

from publication of information in connection with a criminal

trial. Caution is the refrain of any Justice acting as Circuit

Justice, but we have recognized the special importance of

swift action to guard against the threat to First Amendment

values posed by prior restraints. It is clear that even a

short-lived “gag” order in a case of widespread concern to

the community constitutes a substantial prior restraint and

causes irreparable injury to First Amendment interests as

long as it remains in effect. When it appears that there is a

part, a stay may issue. Nebraska Press Assn. v. Stuart, 423

U. S. 1827, 1330 (1975) (BLACKmuN, Circuit Justice); Times-

Picayune Publishing Corp. v. Schulingkamp, 419 U. S.

3a

Opinion

hearing or a record; neither the prosecution nor defendant

has expressed any interest in it. Compare Gannett Co. v.

DePasquale, 443 U. S. 368 (1979). The jury was selected at

voir dire proceedings begun prior to the issuance of this

order, from which the press and public were not excluded,

and at which the names oi the prospective jurors were not

kept confidential. Compare Press-Enterprise Co. v. Supe-

rior Court, No. 82-556 (cert. granted Jan. 24, 1983).

It hardly requires repetition that “({a]ny system of prior re-

straints of expression comes to this Court bearing a heavy

presumption against its constitutional validity,” and that the

State “carries a heavy burden of showing justification for the

imposition of such a restraint.” New York Times Co. v.

United States, 403 U. S. 713, 714 (1971) (per curiam). This

Court has given plenary consideration to a number of state

statutes and court orders issued thereunder restraining

or restricting

of preventing such publication. Just last Term, in Globe

Newspaper Co. v. Superior Court, —— U. S. —— (June 23,

1982), we held that the First and Fourteenth Amendments

prohibited enforcement of a rule barring press and public ac-

cess to criminal sex-offense trials during the testimony of

minor victims. We adopted a familiar standard: “Where, as

in the present case, the State attempts. . . to iniibit the dis-

closure of sensitive information, it must be shown that the

denial is necessitated by a compelling governmental interest,

and is narrowly tailored to serve that interest.” /d., at ——

ef. Smith v. Daily Mail Publishing Co., 443

(slip op. 10);

4a

Opinion

dents make clear, however, that far more justification than

appears on this record would be necessary to show that this

categorical, permanent prohibition against publishing in-

formation already in the public record was “narrowly tailored

to serve that interest,” if indeed any justification would suf-

fice to sustain a permanent order. Based on these prece-

dents, I must conclude that if the Supreme Court of Pennsyl-

vania sustained this order on its merits, four Justices of this

Court would vote to grant review, and there would be a sub-

stantial prospect of reversal. 7

Insofar as the State’s interest is in shielding jurors from

pressure during the course of the trial, so as to ensure the

ring). As for the State’s concern for the jurors’ privacy, we

have not permitted restrictions on the publication of informa-

Sa

Opinion

Landmark Communications, Inc. v. Virginia, 435 U. S.

829, 842-843 (1978). The 92 order was entered without a

hearing, and without findings of fact that would justify it; re-

spondenit has suggested no concern specific: to this case in

support of his order. Accordingly, I grant applicant’s re-

quest for a stay of the 42 provision.

It would be inappropriate for me to grant a stay of the 46

or 411 provisions. By its terms, the 46 provision applied

only “during [the jurors’) service in these proceedings.”

Since the jury has been discharged, this particular provision

can no longer have effect. It may be that such an order, al-

though it had expired, could be still receive appellate review

in this Court under the “capable of repetition, yet evading

review” doctrine, see Nebraska Press Assn., 427 U. S., at

546-547, but there is no prospect of immediate injury to ap-

plicants before they can seek review of the order, so their

application for a stay must be denied. As for the 411 provi-

sion, restricting access to exhibits, applicants have neither

identified the exhibits to which they seek access, nor have

they indicated that they have sought a court order permitting

them access. The application for a stay of the 111 provision

is denied without prejudice to its renewal in the event a re-

quest for access to exhibits is denied by the trial judge.

I shall issue an order accordingly.

6a

Order

SUPREME COURT OF THE UNITED STATES

No. A-1070

CAPITAL CITIES MEDIA, INC., ET AL.,

Applicants,

Vv.

PATRICK J. TOOLE, JR., JUDGE OF THE COURT OF

COMMON PLEAS OF LUZERNE COUNTY

ORDER

UPON CONSIDERATION of counsel for the applicants and

the response and reply thereto,

IT IS ORDERED that paragraph No. 2 of the order of the

Court of Common Pleas of Luzerne County, Pennsylvania,

Criminal Case Nos. 1290, 1506, 1507, 1508, 1519, 1520, 1524,

entered in accordance with Pa. Rules Crim. Proc. 1111(c), June

3, 1983, restraining publication of the names and addresses of

jurors, be, and the same is hereby, stayed pending the timely filing

and disposition of a petition for a writ of certiorari or jurisdictional

statement. Should the petition for a writ of certiorari be denied

or should the appeal be dismissed, this stay shall terminate

automatically. In the event the petition for a writ of certiorari

is granted or probable jurisdiction is noted or postponed, this

stay shall continue in effect pending the issuance of the mandate

of this Court.

THE APPLICATION FOR STAY is denied as to paragraph

No. 6 of said order, which prohibits any person from sketching

or photographing jurors during their service, because it appears

7a

Order

that the order is inoperative as to its own terms. The application

for stay of paragraph No. 11 of the O:der Pursuant to Pa. Rules

¢rim. Proc. 326, June 3, 1983, which restricts access to exhibits,

is denied without prejudice to its renewal in the event a request

for access to exhibits is denied by the trial judge.

s/ William J. Brennan, Jr.

Associate Justice of the Supreme

Court of the United States

Dated this 13th

day of July, 1983

Clerk of the Supreme Court

of the United States

By Christopher W. Vasil

Deputy

8a

ORDER OF THE PENNSYLVANIA SUPREME COURT IN

CAPITAL CITIES MEDIA, INC., ET AL. V. TOOLE,

(UNREPORTED) JULY 30, 1983

IN THE SUPREME COURT OF PENNSYLVANIA

No. 101 E.D. Misc. Dkt. 1983

Original Process

CAPITAL CITIES MEDIA, INC., t/d/b/a THE WILKES-

BARRE TIMES LEADER and NEP COMMUNICATIONS,

INC., t/d/b/a WNEP-TV NEWS,

Applicants

Vv.

PATRICK J. TOOLE, JR., JUDGE OF THE COURT OF

COMMON PLEAS OF LUZERNE COUNTY

PER CURIAM FILED: JUNE 30, 1983

*

Application for Writ of Prohibition denied.

9a

ORDERS OF JUDGE PATRICK J. TOOLE, JR. IN

COMMONWEALTH OF PENNSYLVANIA V. BANKS,

CRIMINAL NOS. 1290, 1506, 1507, 1508, 1519, 1520, 1524 OF

1982, COMMON PLEAS OF LUZERNE COUNTY,

PENNSYLVANIA (UNREPORTED) JUNE 3, 1983

IN THE COURT OF COMMON PLEAS OF LUZERNE

COUNTY * CRIMINAL

NOS. 1290, 1506, 1507, 1508, 1519, 1520,:1524 of 1982

AND NOW this 3rd day of June, 1983, the undersigned,

pursuant to Pa. R. Crim. P. 326, finds and concludes that the

following rules and regulations are necessary to protect and

promote the orderly administration of justice in this matter and

it is therefore

ORDERED, DIRECTED AND DECREED:

1. That all unauthorized persons, including personnel from

the news media and general public, are prohibited from being

in and shall be excluded from the security areas outlined on the

attached drawings whenever the defendant and/or jurors are being

escorted to or from the elevator or the building.

2. No cameras, photographic, television, radio or sound

equipment, including tapc recorders will be permitted in or on

any security area outlined on the attached drawings whenever the

defendant and/or jurors are being escorted to or from the elevator

or the building.

3. That the southwest entrance way to the basement of the

Court House and the corridors and approaches to the elevator

in the basement of the Court House, and all entrances and

approaches to the assigned courtroom on the third floor of the

Luzerne County Court House, will be clear at all times for free

10a

Order

access thereto by those using them in the course of their

employment or those having business to transact therein.

4. No attempt shall be made by anyone to talk to, record

or photograph, televise or videotape any juror or jurors at any

time during their service in this case.

5. No person shall be permitted to in any way, directly or

indirectly, interfere with, obstruct or impede the passage or transfer

of the defendant in or out of the Court House during these

proceedings.

6. All spectators to the proceedings shall be seated at least

three (3) minutes prior to the scheduled beginning of any trial

session. Once a trial session begins the Court Room doors shall

be secured and no one will be permitted to enter the courtroom

until an authorized recess. No one inside will be permitted to leave

the courtroom during any session, except with permission of Court,

or in case of an emergency, recess or adjournment.

7. At any recess or adjournment, and at any other time the

jury is retiring from the courtroom or the defendant is being.

escorted therefrom, the spectators shall remain seated in the

courtroom until the jury and/or the defendant have had ample

time to withdraw and said spectators have been given permission

to disburse.

8. A uniformed Deputy She.iff, in addition to regular court

personnel, shall be assigned to insure courtroom security and

compliance with this Order during the entire trial.

9. An adequate number of court personnel shall be assigned

during all trial proceedings for trial control in the public corridor

of the third floor and/or basement of the Court House.

Order

10. The bar of the court within the rail is reserved for the

defendant, counsel and court personnel. No one else will enter

said area without prior authorization of the trial Judge.

11. No one, except attorneys of record, their agents, court

personnel, witnesses and jurors may handle exhibits except by

Order of Court.

12. The official Court reporter assigned to this proceeding

shall not release or divulge the contents of her notes of the

testimony or the evidence presented by any person, nor shall any

transcript of these proceedings in this matter be released by the

reporter to any person unless and until a copy of such transcript

has been ordered by and delivered to and approved by the Court.

13. No sketches may be made in the courtroom during the

course of this trial without prior authorization of the trial Judge.

14. All lawyers participating in this case, their assistants,

office associates, staff members, investigators and employees under

their supervision and control are prohibited from taking part in

public interviews and from making extra judicial statements about

this case until such time as the jury is discharged.

15. All court employees, as well as employees of the Clerk

of Courts, Prothonotary, County Sheriff, Coroner, police officials

and other law enforcement officers, their associates, deputies,

assistants, staff members and personnel under their supervision

and control are prohibited from taking part in or giving public

interviews and from making extra judicial statements about this

case until such time as the jury is discharged.

16. All witnesses and jurors are prohibited from taking part

in or giving any public interviews and from making extra judicial

statements about this case until such time as the jury is discharged.

12a

Order

17. Nothing in this Order shall prohibit any witness from

discussing any matter in connection with the case with any of

the attorneys representing the defendant or the Commonwealth,

or any representative of such attorneys.

BY THE COURT,

s/ Patrick J. Toole, Jr.

ce: District Attorney

Basil Russin, Esq.

Joseph Sklarosky, Esq.

Albert Flora, Esq.

Court Administrator

13a

Order

IN THE COURT OF COMMON PLEAS OF LUZERNE

COUNTY * CRIMINAL

NOS. 1290, 1506, 1507, 1508, 1519, 1520, 1524 of 1982

COMMONWEALTH OF PENNSYLVANIA

v.

GEORGE E. BANKS

AND NOW this 3rd day of June, 1983, the undersigned,

in accordance with Pa. R. Crim. P. 1111(c),

ORDERS AND DIRECTS that the jurors selected and

empanelled in the above captioned matter shall be sequestered

from the time they depart from Pittsburgh, Allegheny County,

on Sunday, June 5, 1983, until such time as the said jury is finally

discharged. In addition, in order to protect and promote the

privacy and security of the jurors and to assure compliance with

this sequestration Order, IT IS FURTHER

ORDERED AND DIRECTED:

1. That no person shall in any way, directly or indirectly,

interfere with, obstruct or impair the movement of the jury to

or from the Court House, ~

2. No person shall print or announce in any way the names

or addresses of any juror.

3. Security personne! shall be provided at the hotel in which

the jury shall be sequestered on a 24 hour basis.

4. The jurors shall, from the time of their departure, be under

the supervision and control of duly authorized Court personnel.

\4a

Order

5. No telephone calls may be made or received by any juror

while sequestered without explicit authorization of the trial Judge.

6. No person shall draw sketches, photographs, televise or

videotape any juror or jurors during their service in these

proceedings except that jurors may, with Court authorization,

take pictures of and with consenting fellow jurors.

BY THE COURT,

s/ Patrick J. Toole, Jr.

ce: District Attorney

Basil Russin, Esq.

Joseph Sklarosky, Esq.

Albert Flora, Esq.

Court Administrator