Opposition Brief — Warden v. Nolan

Z Supreme Court, U.S,

\ it RPILED

od, | SEP 94 1986

No. 86-310 :

JOSEPH F. SPANIOL, JR,

are CLERK

a

In THE

Supreme Court of the Gnited States

Octoser Term, 1986

ROB WARDEN, CHICAGO LAWYER

and SANDRA BIETILA,

Petitioners,

Vv.

HONORABLE ROBERT A. NOLAN,

Judge of the Circuit Court of DuPage County,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

RESPONDENT'S BRIEF IN OPPOSITION

ALDO E. BOTTI

Botti, Marrnaccio, DESatvo

& Prersr, Lp.

2211 York Road, Suite 208

Oak Brook, Illinois 60521

(312) 573-8585

Counsel for Respondent

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

TABLE OF CONTENTS

PAGE

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REASONS FOR DENYING THE WRIT:

I.

PETITIONERS DO NOT HAVE A FIRST

AMENDMENT RIGHT OF ACCESS EITHER

TO STATEMENTS OF INDIVIDUALS SUB-

JECT TO THE JURISDICTION OF THE COURT

OR TO COURT RECORDS ................ 3

A. Official Court Records And Documentary

And Physical Evidence Do Not Qualify

For Constitutional Protection ......... 4

B. No First Amendment Right Of Access

Exists As To Attorneys, Court Personnel

And Law Enforcement Agencies ...... 6

C. The Withholding Of Certain Limited Tran-

scripts Does Not Violate Any Rights Of

I oh in iss Tanke a wok eae shows 8

II.

THE CLAIMS OF PETITIONER, SANDRA

BIETILA, SHOULD NOT BE REVIEWED BY

BERD GAPRIEBE 6 hc were cece eee see sivevetsses 9

III.

AMPLE NOTICE WAS GIVEN OF THE PRO-

CEEDINGS WHEREIN PETITIONERS CHAL-

LENGED THE RESPONDENT’S PROTECTIVE

FE Fook obi d een ce areca sein bees danies 10

| ree ere Terre Te Cree Le 11

ii

TABLE OF AUTHORITIES

Cases

Belo Broadcasting Corp. v. Clark (5th Cir. 1981),

See Ade GP kts sp. 0 ake oe keen Seen

Flast v. Cohen (1968), 392 U.S. 83, 20 L.Ed.2d 947,

A eM eee re eels

Gannett Co., Inc. v. DePasquale (1979), 443 U.S.

368, 61 L.Ed.2d 608, 99 S.Ct. 2898 ........

Hirschkop v. Snead (4th Cir. 1979), 594 F.2d 356 .

In re Sawyer (1959), 360 U.S. 622, 3 L.Ed.2d 1473,

, oe + | pommel ke

Irwin v. Dowd (1961), 366 U.S. 717, 6 L.Ed.2d 751,

Oe TA. FO ks c0sesienseisede eee

Nebraska Press Ass’n v. Stuart (1976), 427 U.S.

539, 49 L.Ed.2d 683, 96 S.Ct. 2791 ........

Nixon v. Warner Communications, Inc. (1978), 435

U.S. 589, 55 L.Ed.2d 570, 98 S.Ct. 1306 ...

Press Enterprise Co. v. Superior Court, ___. US.

___, 39 Cr.L. 3253 (No. 84-1560, decided June

PE oo ko kb abe enediiavscneeeee ee

Sheppard v. Maxwell (1966), 384 U.S. 333, 16 L.Ed.

ee my Oe eh Be oko cc ccoupidceveces

Singer v. United States (1965), 380 U.S. 24, 13

wee ee 6 ere ee

United States v. Edwards (7th Cir. 1982), 672 F.2d

BF sacercvenes sbcubansdsbapuet bees eee

United States v. Torres (N.D.Ill. 1985), 602 F.Supp.

POND bvinyane desdceehandebeenseeeee

PAGE

In THE

Supreme Court of the Anited States

OctosEerR TERM, 1986

ROB WARDEN, CHICAGO LAWYER

and SANDRA BIETILA,

Petitioners,

Vv.

HONORABLE ROBERT A. NOLAN,

Judge of the Circuit Court of DuPage County,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

RESPONDENT'S BRIEF IN OPPOSITION

STATEMENT OF CASE

Petitioner, Sandra Bietila, has never appeared in the Cir-

cuit Court of DuPage County. The first instance wherein

Petitioner Bietila appeared was before the Illinois Supreme

Court, and did so without ever having sought leave to

intervene in those proceedings and without having sought

any relief at the trial court level. Before this Court and

before the Illinois Supreme Court, she has sought to have

the March 3, 1986 order reviewed as to her asserted con-

ae

stitutional interests, based solely on her own affidavit and

without the factual underpinning which ordinarily is ap-

propriate before difficult constitutional questions will be

reviewed.

The proceedings which culminated in the March 3 order

followed the purported confession of Brian Dugan to the

Jeanine Nicarico murder for which Stephen Buckley is

awaiting retrial. A massive investigation was undertaken

by authorities to ascertain the validity of that confession.

The exhibits introduced on February 27 and 28 included

video tapes of television newscasts and newspaper articles

concerning that investigation. A common sense review of

those exhibits indicates that the individuals who were sub-

jected to the March 3 order were providing details of the

investigation to members of the press.

Contrary to Petitioner’s statement, the Special State’s

Attorney did not appear “‘as a proponent of new restraints.”

(Petition for Writ of Certiorari to the Supreme Court of

Illinois, page 5.) The hearing held by Judge Nolan was

specifically held as a result of Judge Nolan’s decision to

allow Petitioners and others to intervene and file motions

to vacate certain prior orders.

During the hearing on February 27 and February 28,

Judge Nolan reviewed a voluminous court file (four vol-

umes) and removed from the court file, in the presence of

Petitioners, Warden and Chicago Lawyer, a document or

documents which were placed in a small manila envelope.

The remainder of the court file was then made available

for inspection to Petitioners, Warden and Chicago Lawyer,

and their counsel.

_

REASONS FOR DENYING THE WRIT

I.

PETITIONERS DO NOT HAVE A FIRST AMENDMENT

RIGHT OF ACCESS EITHER TO STATEMENTS OF IN-

DIVIDUALS SUBJECT TO THE JURISDICTION OF THE

COURT OR TO COURT RECORDS.

Fundamental to the arguments of Petitioners is the

presumption that all of the matters covered by the March

3 order fall under the umbrella of protections afforded by

the First Amendment. It is important to note that the

Order of March 3, 1986, does not prohibit the Petitioners.

or any other member of the public from attending either

the trial or any pretrial proceeding; does not prohibit the

Petitioners or any other member of the press or public

from reporting on the case of People v. Buckley, 84 CF

362; allows the press and the public to obtain and examine

transcripts of Stephen Buckley’s prior trial; allows the in-

spections of some four volumes of the common law record

in People v. Stephen Buckley. The only material contained

in the court file which is not available to the Petitioners

for inspection are certain portions of the transcripts of

proceedings from December 15, 1985 to January 21, 1986

and a certain document or documents which were sealed

in a small manila envelope in the presence of the Peti-

tioners, Rob Warden and Chicago Lawyer.

Furthermore, the Order of March 3, 1986, does not

preclude all discussion of the case of People v. Stephen

Buckley, 84 CF 362, by individuals that are subject to

the court’s inherent powers. Rather, the order imposes

limited restrictions to secure a fair trial for both the State

and the defendant. The essence of the right asserted by

the Petitioners does not concern their freedom to publish,

viliine

but rather the so-called “‘right of access’”’ which the Peti-

tioners maintain is of constitutional stature. As to either

the court record in People v. Buckley, 84 CF 362 (Cir-

cuit Court of the Eighteenth Judicial Circuit, DuPage

County, Illinois), or the communications with attorneys

of record and others, this Court has never recognized a

First Amendment “right of access’.

A. Official Court Records And Documentary And Physical

Evidence Do Not Qualify For Constitutional Protection.

It is true that judicial records are ordinarily to be

available for public inspection. Contrary to Petitioners’

arguments, such a right is rooted in the common-law and

not the First Amendment to the United States Constitu-

tion. (United States v. Edwards (7th Cir. 1982), 672 F.2d

1289.) However, the right to inspect and copy judicial rec-

ords is not absolute.

“Every court has supervisory power over its own

records and files, and access has been denied where

court files might have become a vehicle for improper

purposes. [Citations omitted.]

* * *

It is difficult to distill from the relatively few judicial

decisions a comprehensive definition of what is re-

ferred to as the common-law right of access or to

identify all the factors to be weighed in determining

whether access is appropriate. The few cases that

have recognized such a right do agree that the deci-

sion as to access is one best left to the sound discre-

tion of the trial court, a discretion to be exercised

in light of the relevant facts and circumstances of the

particular case.” (Footnotes omitted.) Nixon v. War-

ner Communications, Inc. (1978), 485 U.S. 589, 598-

599, 55 L.Ed.2d 570, 98 S.Ct. 1306, 1312-1313.

a

~~ =

In United States v. Edwards (7th Cir. 1982), 672 F.2d

1289, the press sought and was denied access to an audio

recording admitted into evidence. In deciding that the trial

court did not abuse its discretion in denying access to this

recording, the court of appeals recognized that the right

relied upon by the press was of non-constitutional origin

and that in a given case, a number of factors may militate

against public access. (See also Nixon v. Warner Com-

munications, Inc. (1978), 435 U.S. 589, 55 L.Ed.2d 570,

98 S.Ct. 1306; Belo Broadcasting Corp. v. Clark (5th Cir.

1981), 654 F.2d 423; United States v. Torres (N.D. Ill.

1985), 602 F.Supp. 1458.)

While a common law right of access may exist as to ju-

dicial records, that right is subject to the inherent powers

of the court to limit access to those records. Here, upon

a careful review of the voluminous record, Judge Nolan

restricted access to only a small portion of the record.

The publicity which has surrounded the alleged Dugan

confession and the intense scrutiny which the Buckley

case has received, is more than ample justification for the

limited restrictions imposed. The responsibility of the trial

court to insure the fair administration of justice and to

secure for the defendant his constitutional right of a fair

trial justifies restricting access to judicial records when

publicity threatens the fairness of the proceeding.

This court has consistently recognized the potential dan-

gers which accompany pretrial proceedings.

In Gannett Co., Inc. v. DePasquale (1979), 443 U.S. 368,

61 L.Ed.2d 608, 99 S.Ct. 2898, this Court recognized the

affirmative constitutional obligation which the trial court

has in safeguarding these rights.

“This Court has long recognized that adverse publici-

ty can endanger the ability of a defendant to receive

a fair trial. [Citations omitted.] To safeguard the due

-

process rights of the accused, a trial judge has an

affirmative constitutional duty to minimize the effects

of prejudicial pretrial publicity. [Citation omitted.]

And because of the Constitution’s pervasive concern

for these due process rights, a trial judge may surely

take protective measures even when they are strict-

ly and inescapably necessary.” (Emphasis added.) 99

S.Ct. at 2904.

Petitioners cite no authorities which suggest there ex- |

ists a First Amendment right of access to court records !

and files and hence, no constitutional issues are raised that |

would merit review by this Court.

B. No First Amendment Right Of Access Exists As To Attor-

neys, Court Personnel And Law Enforcement Agencies.

The Petitioners also implicitly argue that they possess

a First Amendment right of access to attorneys, court

personnel, and law enforcement personnel. Such a right

does not exist.

The Petitioners are correct in asserting that lawyers ap-

pearing in a case are particularly useful sources of infor-

mation concerning pending litigation. However, lawyers

are also proponents of a particular position in an adver-

sarial system and can be the source of prejudice to the

opposing party or to the State’s interest in maintaining

the fairness of proceedings.

“‘Because such a system relies deliberately on highly

partisan advocacy by counsel, both in shaping and

moving litigation along, it is especially vulnerable to

the natural human tendency of counsel to enlist ex-

traneous influences in behalf of their causes and to

take the structured battle of the litigation process

‘into the streets,’ or into the public forum afforded

by the free press.” Hirschkop v. Snead (4th Cir.

1979), 594 F.2d 356, 377 (J. Phillips, concurring).

=

In Sheppard v. Maxwell (1966), 384 U.S. 333, 16 L.Ed.2d

600, 86 S.Ct. 1507, this Court reversed the defendant’s

conviction because of pretrial publicity. In reaching its

decision, the Supreme Court commented upon some of the

restrictions the trial court should have imposed.

‘(T]he court should have made some effort to con-

trol the release of leads, information and gossip to

the press by police officers, witnesses, and counsel

for both sides.

* * *&

[W]e must remember that reversals are but pallia-

tives; the cure lies in those remedial measures that

will prevent the prejudice at its inception. The courts

must take such steps by rule and regulation that will

protect their processes from prejudicial outside in-

terferences. Neither prosecutors, counsel for defense,

the accused, witnesses, court staff nor enforcement

officers coming under the jurisdiction of the court

should be permitted to frustrate its function. Collabo-

ration between counsel and the press as to informa-

tion affecting the fairness of a criminal trial is not

only subject to regulation, but is highly censurable

and worthy of disciplinary measures.” 384 U.S. at

359, 363, 16 L.Ed.2d at 618, 620. See Nebraska Press

Ass'n v. Stuart (1976), 427 U.S. 539, 49 L.Ed.2d 683,

96 S.Ct. 2791, 2800.

To recognize a First Amendment right of access to these

individuals and impose the “substantial probability” test

recognized in Press Enterprise Co. v. Superior Court,

___._ ;U.S. ___, 39 Cr.L. 3253 (No. 84-1560, decided June

30, 1986), would effectively deprive the trial court of

perhaps one of the most reasonable means of securing fair

trial guarantees for both the State and the defendant.

There is no doubt that the State has a substantial inter-

est in ensuring the fairness of judicial proceedings. (Shep-

pard v. Maxwell (1966), 384 U.S. 333, 16 L.Ed.2d 600, 86

= =

S.Ct. 1507; Singer v. United States (1965), 380 U.S. 24,

13 L.Ed. 2d 630, 85 S.Ct. 783; In re Sawyer (1959), 360

U.S. 622, 666, 3 L.Ed.2d 1473, 1499, 79 S.Ct. 1876, 1397

(Frankfurter, J., dissenting.) Courts have recognized that

restricting extra-judicial statements of criminal defense at-

torneys relates to the government’s substantial interest

in preserving the proper administration of justice and the

basic integrity of the judicial process. (See Singer v.

United States (1965), 380 U.S. 24, 18 L.Ed.2d 6380, 85 S.Ct.

783.) These rights and interests can be impaired by lawyers’

unrestrained, prejudicial comments pending trial. (See Jrwin

v. Dowd (1961), 366 U.S. 717, 6 L.Ed.2d 751, 81 S.Ct.

1639.)

Judge Nolan acted carefully to discharge his affirmative

constitutional duty to secure to the State and the defen-

dant a fair proceeding. Since no First Amendment right

of access has ever been recognized as to court files or

individuals subject to the jurisdiction of the trial court,

this case does not merit review by this Court.

C. The Withholding Of Certain Limited Transcripts Does

Not Violate Any Rights Of Petitioners.

In his March 8 order, Judge Nolan withheld transcripts

of the proceedings which occurred between December 15,

1985 and January 21, 1986. Subsequently, a portion of

these transcripts were released. Respondent submits that

withholding of these transcripts was not error.

Although in Press Enterprise Co. v. Superior Court,

seseacae SE , 39 Cr.L. 3253 (No. 84-1560, decided June

30, 1986), this Court recognized that a qualified First

Amendment right of access attaches to preliminary hear-

ings, this Court has yet to hold that such a right attaches

to other pretrial proceedings. Historically, the public had

-

no right to attend pretrial proceedings. (See Gannett v.

DePasquale, 443 U.S. 368, 61 L.Ed.2d 608, 99 S.Ct. 2898

(1979).) The Court in Gannett approved of the closure of

a pretrial suppression hearing and sealing transcripts of

that hearing, based upon a finding that an open proceed-

ing would pose a “reasonable probability of prejudice to

these defendants.” Here, Judge Nolan specifically found

that the transcripts being withheld bore upon the identi-

ty, testimony and credibility of potential witnesses and

were the subject matter of ongoing investigations. The

Court also found that there had been a great deal of

media coverage of the instant cause, including but not

limited to alleged statements, identity or credibility of

potential future witnesses and that Defendant Buckley’s

previous trial resulted in a mistrial. Judge Nolan found

that the rights of the Petitioners were outweighed by a

need to secure fair trial guarantees to the State and the

Defendant.

Assuming arguendo that a First Amendment right of

access existed as to the proceedings which remained

sealed, such a right was found to be outweighed by the

interests of the State and the defendant. As in Gannett,

no error was committed by the Respondent on entering

the March 3 order and review of that decision is not

warranted.

II.

THE CLAIMS OF PET'TIONER, SANDRA BIETILA,

SHOULD NOT BE REVIEWED BY THIS COURT.

Petitioner Bietila has never appeared before the Respon-

dent and advanced the claims she now seeks to have re-

viewed. Rather, Petitioner Bietila appeared for the first

time in the second mandamus proceeding filed in the

= =

Illinois Supreme Court. (Warden v. Nolan, No. 63318.)

The only source to identify Ms. Bietila’s interest is her

own affidavit filed in the Illinois Supreme Court, an affi-

davit full of conclusions. Although she asserts that certain

of her constitutional guarantees have been infringed, the

case in its present posture lacks the concrete adverseness

which sharpens the issues to illuminate difficult constitu-

tional questions. (See Flast v. Cohen (1968), 392 U.S. 83,

20 L.Ed.2d 947, 88 S.Ct. 1942 (1968).) In light of the pres-

ent record, the claims of Petitioner Bietila should not be

reviewed.

Il.

AMPLE NOTICE WAS GIVEN OF THE PROCEEDINGS |

WHEREIN PETITIONERS CHALLENGED THE RESPON-

DENT’S PROTECTIVE ORDERS.

Although Petitioner Bietila asserts that she did not have

notice of the proceedings which culminated in the March

3 order, ample notification was given. On February 4,

_ 1986, an article appeared in the Chicago Sun-Times, a |

newspaper of general circulation in the six-county greater

metropolitan Chicago area, headlined “Gag Order Is Chal- |

lenged in Nicarico Case.”’ This article described the ef- |

forts by Petitioners, Warden and Chicago Lawyer, to

vacate the protective orders entered by Judge Nolan on

December 23, 1985, January 6, 1986, and January 10, 1986.

(People’s Exhibit 10a from February 27-28 hearing.) That

article indicated the next hearing date was February 19,

1986 before Judge Nolan. On February 20, 1986, an arti-

cle appeared in the Chicago Tribune headlined ‘‘Nicarico

gag order open to challenge.”’ (People’s Exhibit lla from

hearing of February 27-28, 1986.) The article stated that

a hearing on the “ACLU’s motion” was set for next

Thursday.

|

_

In light of the publicity given to the efforts of Peti-

tioners Warden and Chicago Lawyer, what more notice

could have been given. Whether or not notice is required

is not determinative, since notice was in fact given. This

Court should not be called upon to decide abstract propo-

sitions.

—>

CONCLUSION

The arguments of Petitioners presume that constitutional

rights have been infringed. Respondent respectfully sub-

mits that as to the court record and communications by

attorneys and others, no First Amendment right of ac-

cess exists. As to the portions of court transcripts that

remain sealed, any rights of Petitioners have been ade-

quately protected. As to Petitioner Bietila, her failure to

ever appear in the trial court and seek to intervene in

these proceedings is fatal to her request that this Court

review her claim of error.

WHEREFORE, Respondent prays that this Court deny

the Petition for Writ of Certiorari to the Supreme Court

of Illinois.

Respectfully submitted,

ALDO E. BOTTI

Botti, MARINACCIO, DESALVO

& PIEPER, LTD.

2211 York Road, Suite 208

Oak Brook, Illinois 60521

(312) 573-8585

Counsel for Respondent