The opinion of the court was delivered by: FRANKEL
The events leading to the trial in this case included actions by law enforcement officers resulting in massive and lurid publicity for their activities. The defendants herein were among scores taken in a "roundup" in the night and morning of April 13-14, 1973. The numerous arrests were supposedly to be accomplished with the utmost secrecy. Yet press reporters and photographers were invited to be present, and at work, through all the stages of the operation.
On the night of April 13, 1973, the officers scheduled to participate in the arrests assembled for instructions in a carefully cloaked meeting at the headquarters of the Bureau of Narcotics and Dangerous Drugs (BNDD). The watchword, we are told, was D-Day style security. However, those in attendance included newspaper and magazine photographers and reporters, busily taking photographs of the officers, not omitting high-ranking police officers and top members of the United States Attorney's staff.
As the arresting officers fanned out for their missions throughout the New York metropolitan area, media people went along. Some of the official vehicles (it is not clear how many) carried photographers and reporters as well as the law enforcement people who must be presumed to have been the only ones properly authorized to be in such vehicles at such a time. It appears that one or more reporters actually entered the homes of arrestees with the officers so that they might describe the detailed circumstances of the arrests, home furnishings, and other essentials that the people are said to have a right to know.
There was little if any serious violence attending the arrests, but action scenes were caught and recorded in the exuberant flashing of camera lights. The arrested people were photographed coming from their homes, clubs, and elsewhere. Cameramen, all duly alerted, were ready at BNDD headquarters and elsewhere to show the arrested people, including an old lady, variously handcuffed, "struggling" in the fierce grip of official hands on each arm, attempting to conceal their faces, or otherwise portraying their roles in the drama.
The press in this area had a ball for a couple of days in the week subsequent to the arrests. The roundup was described in intimate, paperback detail -- the tension of the secret briefings, the bantering of officers all wound and ready to spring, the long accounts of patient sleuthing leading to this finale. There were the usual references to "reputed organized crime figures." A reporter for the sedate Times captured on the front page the "sense of exhilaration." He told how many of the arresting officers were themselves kept in the dark until the very last minute. A Deputy Police Commissioner was quoted as saying on the critical evening before the arrests:
"We cannot have a leak. We cannot have a leak now. This is a historic night. So I want to wish each of you good luck."
Reflecting further this sense of history, the same high official was quoted in another press organ as saying the roundup made "the French Connection case look like a pebble compared to a boulder." Months later, at the trial of the instant case, a government chemist was to exhibit a similar instinct for what counts in history. Asked about a crude testing device for heroin, he found it useful as a scientist to compare it to devices seen in the motion picture. "The French Connection." The expectable motion for a mistrial was denied then, as have been other arguments to defeat this prosecution, but matters of this kind may yet take on a more sinister aspect when viewed from some appellate height. It is to be questioned in any event how clearly the ends of justice are perceived in an atmosphere where it has become so habitual to hold the mirror of nature up to Hollywood's art.
Other details of the publicity may be omitted for present purposes. They are in the court's record for reference on review and otherwise.
Enough has been mentioned to make clear, it might be thought, why the court found in these matters grounds for concern. The troublesome problem of reconciling freedom of the press with the right to a fair trial is familiar to everyone. This court, like others, has a rule on the subject, which appeared very possibly to have been violated.
The Department of Justice also has a commendable-sounding rule, which might be read to proscribe press briefings and photographic arrangements for "secret" arrests on serious indictments.
The question of the integrity of the Department's own functioning might have been supposed to cause concern in that quarter, quite apart from the now familiar principle that an agency may deny due process if it fails to obey its own regulations. E.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-268, 74 S. Ct. 499, 98 L. Ed. 681 (1954); Service v. Dulles, 354 U.S. 363, 388-389, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957); Yellin v. United States, 374 U.S. 109, 120-121, 83 S. Ct. 1828, 10 L. Ed. 2d 778 (1963). As for the court itself, our "supervisory power," if it means something, must entail an alert sensitivity to indications that the federal prosecutor and/or federal law enforcement officers have participated in, or quietly condoned, transgressions against court rules, executive rules, and commands of the Constitution.
Accordingly, after the verdicts had been returned in this case, the court, in a memorandum dated November 27, 1973, directed the United States Attorney to explain and comment upon the above-described events. Specific questions were put to develop some facts about the publicity, the roles of government counsel and law enforcement officers, the views of the government as to whether there had been improprieties, and the possible needs for remedial action by the United States Attorney, the court, or both. Defense counsel were invited, of course, to present their positions.
Perhaps surprisingly, at least to this court, the initial response of the United States Attorney was a five-page letter explaining why no response should be required on the merits of the questions. First of all, in a probably accurate observation, the United States Attorney took issue with the statement in our November 27 memorandum that the subject of publicity had been "left for further consideration at a later time." Whatever the court may have had in mind, it does not appear that any formal "reservation" of this nature was made on the record. Then the United States Attorney reminded us that the usual precautions had been taken in selecting the jury; that the required assurances had been given by those selected; and that there were no grounds in our record for claims of error in this respect. It was said that "[if] an inquiry relating to pre-trial publicity were ever appropriate in this case, surely it could have been conducted before and not after the conclusion of a five-week jury trial."
The demurrer was overruled. The United States Attorney then proceeded to give his responses to our inquiries. In the paragraphs following this one, we set out, first, each of the eight numbered categories of information called for by the court, then the respective submissions in response from the United States Attorney, in full or essential part, and thereafter the court's comments in instances where comments have seemed appropriate.
"(1) A listing of the media representatives (reporters, photographers, and any others) who were present at the assembly of law enforcement officers on the night of April 13, 1973, at B.N.D.D. headquarters, or at any other such meeting, where instructions for the arrests were given."
Response : "No media representatives were present at any meeting 'where instructions for the arrests were given. ' Three reporters and two photographers were present for a limited time at an assembly of law enforcement officers at Drug Enforcement Administration ('DEA') headquarters, 555 West 57th Street, New York, N.Y. . ...