Amicus Curiae Brief — Times-Picayune Publishing Corp. v. Edwards

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

THE TIMES-PICAYUNE PUBLISHING CORP., et ai.

Petitioners,

v.

EDWIN W. EDWARDS, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMICI CURIAE

THE REPORTERS COMMITTEE FOR FREEDOM OF

THE PRESS, THE AMERICAN SOCIETY

OF NEWSPAPER EDITORS, THE ASSOCIATED

PRESS, THE NATIONAL ASSOCIATION OF

BROADCASTERS, AND THE RADIO-TELEVISION

NEWS DIRECTORS ASSOCIATION IN SUPPORT

OF THE PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT |

ANTHONY C. EPSTEIN

Counsel of Record

JOHN T. NAKAHATA

Jenner & Block

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

Counsel for Amici Curiae

(List of counsel continued inside

February 10, 1988 cover.)

CASILLAS PRESS INC. — 1717 K STREET NW WASHINGTON DC 20036 — 223-1220

Of Counsel:

JANE E. KIRTLEY

SUSAN E. BRAY

800 18th Street, N.W.

Washington, D.C. 20006 © -

(202) 466-6313

Counsel for Amicus Curiae

The Reporters Committee for

Freedom of the Press

RICHARD N. WINFIELD

Rogers & Wells

Two Hundred Park Avenue

New York, N.Y. 10166

(212) 878-8000

Counsel for Amicus Curiae

The Associated Press

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20036

(202) 429-5454

Counsel for Amicus Curiae

National Association of

Broadcasters

J. LAURENT SCHARFF

Pierson, Ball & Dowd

1200 18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Counsel for Amicus Curiae

Radio-Television. News Directors.

Association

ee ee

TABLE OF CONTENTS

TABLE OF AUTHORITIES........-.-

INTERESTS OF AMICI CURIAE....

STATEMENT OF THE CASE........-

REASONS FOR GRANTING THE WRIT

CONCLUSION... ccceccsccccasses

is TABLE OF AUTHORITIES

A Quantity of Copies of

Books v. Kansas,

378 U.S. 205 (1964)......

-Associated Press v. United

States District Court,

705 F.2d 1143 (9th

Cle. TOG ices cece ek hacia

Bridges v. California, 314

ids Bee. REET ks sawn

Carroll v. President ‘ind

Commissioners of

Princess Anne, 353

oe ee Be | eran ae

Globe Newspaper Co. v.

Court, 457. U.&.

SPO. C29ER) a-< 0 «% Te Cree Se

‘In re Oliver, 333 U.S. 257

(1948)...... at ae aoe

In re Globe Newspaper Co.,

729 F.2d 47 (lst Cir.

SOUS is eas ek a awa ae

>In re Knight Publishing

CO.,° 743 F.42G@ aaa

(atm Cie. RONG i vic c dicks

a jk =

Page(s)

11

12

Page(s)

In re Iowa Freedom of

Information Council,

724 F.2d 658 (8th

as IR i eaboe sd 0 oa 0 12

In re Washington Post Co.,

807 F.2d 383 (4th

OS a re 12

Matter of Continental

Illinois Securities

Litigation, 732 F.2d

1302 (7th Cir. 1984)..... 8

Newman v. Graddick, 696

F.2d 796 (11th Cir.

eee 12

Press-Enterprise Co. v.

Superior Court, 106

Mes 86 eee 9

Richmond Newspaper v.

Virginia, 448 U.S.

ge re 7

Sacramento Bee v. United

States District Court

for the Eastern District

of California, 656

F.2d 477 (9th Cir.

1981), cert. denied

456 U.S. 983 (1982)...... 12

United States v. Brooklier,

685 F.2d 1162 (9th

ED sa anig bse SA wee 12

~ 443 =

Page(s)

United States v. Criden,

675 F.2d 550 (3rd

Cale BOR ceedwadaescacce 11

United States v. Raffoul,

826 F.2d 218 (3rd

a. Se ee 11

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

No. 87-872

THE TIMES-PICAYUNE PUBLISHING CORP., ET AL.,

Petitioners,

Vv.

EDWIN W. EDWARDS, ET AL.,

Respondents.

BRIEF OF AMICI CURIAE THE REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS,

THE AMERIC .. SOCIETY OF NEWSPAPER EDITORS,

THE ASSOCIATED PRESS, THE NATIONAL

ASSOCIATION OF BROADCASTERS, AND THE

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION

IN SUPPORT OF THE PETITION FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

INTERESTS OF AMICI CURIAE

The news organizations filing

this brief have a vital interest in the

outcome of this case. If the decision

below is allowed to stand, the news

media’s ability to gather the news will be

severely impaired. Under the Fifth

Circuit’s decision, proceedings involving

juror corruption in criminal trials will

be presumptively closed even in cases of

vital public interest, and the amici will

generally be denied any reasonable oppor-

tunity even to find out that such proceed-

ings occurred until well after the trials

are completeda.?/

The Reporters Committee for

Freedom of the Press is a voluntary,

unincorporated association of news report-

ers and editors dedicated to protecting

the First Amendment interests of the news

media. The Reporters Committee has

appeared in virtually every Supreme Court

case involving the First Amendment rights

1/ This amicus brief is being filed with

the consent of all parties. See Letter of

William Jeffress, Jr.; Letter of Jack

Weiss; Letter of Michael Fawer.

-2-

of reporters to gather and disseminate

news and information. It has provided

representation, information, legal guid-

ance or research in virtually every major

press freedoms case litigated since 1970.

The American Society of Newspa-

per Editors is a nationwide, professional

organization of more than 950 persons who

hold positions as directing editors of

daily newspapers throughout the United

States.

The Associated Press, the

world’s largest newsgathering organiza-

tion, is a mutual news cooperative organ-

ized under the Not-for-Profit Corporation

Law of the State of New York. The Associ-

ated Press gathers and distributes news of

local, national and international impor-

tance to its member newspapers and broad-

cast stations across the United States and

throughout the world.

The National Association of

Broadcasters is a non-profit, incorporated

association of more than 5,000 radio

stations, 940 television stations, and the

major commercial broadcast networks.

The Radio-Television News

Directors Association is a professional

association of electronic journalists.

The Association has over 2,500 members who

gather, edit and disseminate news and

other public affairs information carried

by the national networks, local radio and

television broadcast stations and cable

television systems throughout the nation.

STATEMENT OF THE CASE

Amici adopt Petitioners’ State-

ment of the Case.

REASONS FOR GRANTING THE WRIT

By closing two mid-trial hear-

ings concerning suspected jury tampering

and misconduct during the criminal

-4-

racketeering trial of Louisiana’s incunm-

bent governor, the trial judge prevented

the public and the news media from ascer-

taining, until weeks after the verdict,

whether the jury was fair and impartial

and whether the tampering and misconduct

charges were properly investigated and

resolved. The Court of Appeals affirmed,

concluding that "for first amendment

purposes, no presumption of openness

attaches to proceedings involving the

midtrial questioning of jurors" (App. 12a)

and that the First Amendment allows access

to be automatically delayed until after

trial and to be routinely limited to

portions of the cold transcript.

The First Amendment, however,

guarantees contemporaneous public scrutiny

of criminal trials and thereby ensures

their integrity and judicial account-

ability. As this Court has stated, "the

knowledge that every criminal trial is

-5-

subject to contemporaneous review in the

forum of public opinion is an effective

restraint on possible abuse of judicial

power. "2/ This value underlies the

consistent holdings of this Court and the

other Courts of Appeals that the right of

access to criminal trial proceedings is

vital to assure that such proceedings are

conducted fairly in fact and appearance,

that the public can "serve as a check upon

the judicial process -- an_ essential

2/ In re Oliver, 333 U.S. 257, 270

(1948) (emphasis added). See Bridges v.

California, 314 U.S. 254, 268 (1941)

("public interest is much more likely to

be kindled by a controversial event of the

day than by a generalization, however

penetrating, of the historian or

scientist."); Carroll v. President and

Commissioners of Princess Anne, 393 U.S.

175, 182 (1968), quoting A_ Quantity of

Copies of Books v. Kansas, 378 U.S. 205,

224 (1964) ("It is vital to the operation

of democratic government that the citizens

have facts and ideas on important issues

before them. A delay of even a day or two

many be of crucial importance in some

instances.").

component in our structure of self-govern-

ment," and that adjudications are not

based on secret bias or corruption. 2/

Even the decision below acknowl-

edges that "(t]he issue of potential juror

misconduct goes to the very heart of

public confidence in the fairness or

appearance of fairness in judicial pro-

ceedings." App. 10a. It recognizes that

"Tojnce the spectre of a tainted jury is

raised, public scrutiny of the resolution

3/ Globe Newspaper Co. Vv. Superior

Court, 457 U.S. 596, 606 (1982); Richmond

Newspapers v. Virginia, 448 U.S. 555, 570

(1980) (plurality opinion). Moreover,

when their impartiality has been put at

issue, jurors in the Fifth Circuit will

now be questioned behind closed doors,

without the incentive to truthfulness

provided by public testimony. Contrary to

the Fifth Circuit’s speculation (App.

lla-12a), public proceedings are

generally more likely to improve than to

worsen the quality of testimony. Globe

Newspaper, 457 U.S. at 610 n.26.

-7-

of the issue is essential, especially

when, as here, the jury acquits." Id.

It is for precisely these

reasons that "the presumption of access

normally involves a right of contemporane-

ous access[.)"4/ Contrary to the Fifth

Circuit’s approach, First Amendment

freedom does _not bear "an inverse ratio to

the timeliness and importance of the ideas

seeking expression. "2/ By its paradoxical

holding that the First Amendment creates a

presumption in favor of delayed but not

contemporaneous access to hearings on

4/ Matter of Continental Illinois

Securities Litigation, 732 F.2d 1302, 1310

(7th Cir. 1984) (emphasis in original).

Continental [Illinois involves a civil

case, but its holding applies a fortiori

to criminal trials. See also Associated

Press v. United States District Court, 705

F.2d 1143, 1147 & n.3 (9th Cir. 1983)

(holding unconstitutional a 48-hour delay

in access to pretrial criminal hearing).

5/ Bridges v. California, 314 U.S. at

269.

juror misconduct, the decision below

undermines ~ these values and turns this

Court’s decisions on their head.

Abandoning the presumption of

contemporaneous access, along with its

requirement of a pre-closure notice and

hearing, creates a presumption of closure

and in fact guarantees closure as a

practical matter. The decision below

allows mid-trial proceedings concerning

jury tampering and juror misconduct to be

automatically closed without any justifi-

cation, much less the constitutionally-

required "specific, on the record findings

. « « demonstrating that ‘closure is

essential to preserve higher values, .)/"&/

6/ Press-Enterprise Co. v. Superior

Court, 106° «3S. Ct. 2735, 2743 (1986)

(citation omitted). Although it purported

to preserve judicial discretion to decide

whether probes of suspected juror

misconduct ought to be public or secret

(Footnote Continued)

-9-

Without reasonable notice of potential

closure, the public and press are denied

any effective opportunity to contest

requests for secret proceedings. The lack

of pre-closure notice and hearing creates

a substantial risk that the public will

not even suspect that the integrity of the

jury has been questioned, or that it has

been shut out of significant proceed-

ings. 2/

(Footnote Continued)

(App. 10a-1la), the Court of Appeals in

effect decided that the trial court need

not exercise any judgment at all before

closing these proceedings. Neither

precedent, empirical evidence, nor logic

suggests that any compelling interests

cannot be protected here, as in other

trial proceedings, through closure on a

case-by-case basis consistent with strict

First Amendment standards.

T/ Here, the public was deprived any

opportunity to learn of the existence of

serious charges until after the trial

ended with the jury’s verdict of

acquittal. Apparently deliberately, the

district court’s opaque descriptions of

the sealed proceedings gave no hint about

(Footnote Continued)

-10-

To avoid these kinds of prob-

lems, "individualized determinations are

always required before the right of access

may be deniea. "8/ To ensure a proper

adjudication of the need for — of

criminal proceedings, six other Circuits

have required not only a case-by-case

determination but also reasonable notice

of potential closure and a ‘pre-closure

hearing.2’ The Fifth Circuit is the first

to hold otherwise.

(Footnote Continued)

the gravity of the allegations explored at

the secret hearing. See Order, United

States v. Edwards, Criminal No. 85-0078

(E.D. La. April 17, 1986) (App. 22a);

Order, United States v. Edwards, Criminal

No. 85-0078 (E.D. La. April 22, 1986)

(App. 24a).

8/ Globe Newspaper, 457 U.S. at 609 n.20

(emphasis in original and supplied); see

id. at 609 n.25.

9/ In re Globe Newspaper Co., 729 F.2d

47, 56 (lst Cir. 1984); United States v.

Ratfonl, “836 .24- 216, -226-" (ied Cir.

1987)? United States v. Criden, 675 F.2d

(Footnote Continued)

-ll-

In sum, using reasoning that

could apply to a range of hearings regu-

larly conducted during criminal trials,

the Fifth Circuit has created an open-

ended exemption from the First Amendment’s

requirement that substantive proceedings

in criminal trials be closed, if at all,

only after a case-by-case determination of

the need for closure and after public

notice and opportunity to be heard. This

Court should review this fundamentally

unsound decision in order to reassert the

substantive and procedural protections

(Footnote Continued)

550, 557-60 (3228 Cir. 1982); In re

Washington Post Co., 807 F.2d 383, 390

(4th Cir. 1986); In re Knight Publishing

Co., 743 F.2d 231, 234 (4th Cir. 1984); In

re Iowa Freedom of Information Council,

724 F.2d 658, 661, 664 (8th Cir. 1984);

United States v. Brooklier, 685 F.2d 1162,

1168 (9th Cir. 1982); Sacramento Bee v.

United States District Court for _ the

Eastern District of California, 656 F.2d

477, 482 (9th Cir. 1981), cert. denied 456

U.S. 983 (1982); Newman v. Graddick, 696

F.2d 796, 802 (11th Cir. 1983).

-12-

embodied in the First Amendment right of

contemporaneous access.

CONCLUSION

For the foregoing reasons, the

petition for a writ of certiorari should

be granted.

Respectfully submitted,

a

Ayton fc a a

ANTHONY q- EPSTEIN

Counsel’ of Record

JOHN T. NAKAHATA

Jenner & Block

21 Dupont Circle, N.W.

Washington, DC 20036

(202) 223-4400

Counsel for Amici Curiae

February 10, 1988

Of counsel:

JANE E. KIRTLEY

SUSAN E. BRAY

800 18th Street, N.W.

Washington, D.C. 20006

(202) 466-6313

Counsel for Amicus Curiae

The Reporters Committee for Freedom

of the Press

-13-

RICHARD N. WINFIELD

Rogers & Wells

Two Hundred Park Avenue

New York, N.Y. 10166

(212) 878-8000

Counsel for Amicus Curiae

The Associated Press

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20036

(202) 429-5454

Counsel for Amicus Curiae

National Association of Broadcasters

J. LAURENT SCHARFF

Pierson, Ball & Dowd

1200 18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Counsel for Amicus Curiae

Radio-Television News Directors Association

-14-

CERTIFICATE OF SERVICE

I, Anthony C. Epstein, counsel

of record for amici and a member of the

Bar of this Court, hereby certify that

three copies of Brief of Amici Curiae in

Support of the Petition for a Writ of

Certiorari to the United States Court of

Appeals for the Fifth Circuit were

deposited in a mailbox, with first class

postage prepaid, addressed to each of the

following counsel for the parties:

Jack M. Weiss, Esq.

Phelps, Dunbar, Marks,

Claverie & Sims

Thirtieth Floor, Texaco Center

400 Poydras Street

New Orleans, Louisiana 70130

William H. Jeffress, Jr., Esq.

Miller, Cassidy,

Larocca & Lewin

Suite 500

2555 M Street, NW

Washington, DC 20037

Michael Fawer, Esq.

530 Natchez Street

New Orleans, Louisiana 70130

Camille F. Gravel, Jr., Esq.

780 North Street

Baton Rouge, Louisiana 70802

Risley C. Triche, Esq.

Post Office Drawer 339

Napoleonville, Louisiana 70390

Joseph LaSage, Esq.

330 Marshall Street

12th Floor

Shreveport, Louisiana 71101

John R. Martzell, Esq.

338 Lafayette Street

New Orleans, Louisiana 70130

Dennis R. Bagneris, Esq.

Perrouillet & Perrouillet

2640 Barracks Street

New Orleans, Louisiana 70119

Richard T. Simmons, Esq.

3121 2ist Street

Metairie, Louisiana 70002

Pwtory C Eps bene

Anthony .- = bikin

Counsel of Record

for Amici