recorded conversations upon which the government placed
principal reliance were not permitted to be played. Insofar as
the electronically intercepted and recorded conversations were
central to the motion to suppress and to the motion to
disqualify, determination of the latter was deferred until the
former was decided. The motion to disqualify was decided on
July 26, 1991.
The media has accepted my invitation to revisit the First
Amendment right to access. They ask that that right be
vindicated by uncovering all the submissions which have until
now been sealed. For the reasons that follow, their request is
granted and the Clerk of the Court is hereby directed to unseal
the record thus far created in this case.
The relevant authorities which have grappled with the
exquisite tension between the First and Sixth Amendments were
reviewed in United States v. Gotti, 753 F. Supp. 443 (E.D.N.Y.
1990) familiarity with which is assumed. The quintessential
inquiry is whether there is a substantial probability that the
defendants' right to a fair trial will be prejudiced. The
answer to that inquiry, I suggested, inevitably involves the
exercise of judgment which I exercised in favor of closure for
the reasons then stated. The considerations which prompted that
judgment no longer obtain.
The motion to suppress the fruits of the electronic
surveillance has been denied. During the course of the oral
argument on the motion to disqualify attorneys Cutler, Shargel
and Pollok, assorted references were unavoidably made to
portions of that surveillance which were duly reported by the
media. The publicity which virtually every minute aspect of
this case has received so far has been extensive. John Gotti
and what is referred to as the Gambino Organized Crime Family
have been the subjects of nearly as much media attention as has
been given to matters of national and international moment. The
fascination of our populace with these defendants and the
degree to which the media serves that fascination, has been or
will be, I suspect, the subject of more than a few doctoral
theses. Additional publicity which may flow from unsealing the
record at this time would add microscopic grains, if even that,
to the balance in favor of the Sixth Amendment. Additional
publicity which may flow from unsealing the record at this time
would, in my judgment, not give rise to a probability,
substantial or otherwise, that the defendants' right to a fair
trial will be prejudiced.
There is another significant consideration which enters into
the calculus of my judgment to unseal the record at this time
which was not present before.
Among the arguments presented by the media representatives in
opposition to the defendants' motion to close the proceedings
was that "any hearings conducted in private will have the
inevitable and unfortunate result of creating doubts in the
minds of the public that justice was done and will ultimately
result in a diminishing of confidence in the judicial process."
My response to that argument was as follows: "[T]he underlying
assumption of this assertion, namely, that the public will
suspect a closed hearing in a federal court, conducted by a
federal judge, to be little less than a star chamber
proceeding, indifferent to fundamental notions of due process
and fairness, is a disquieting one and one which I reject in
the firm belief that the history of the federal judiciary will
not support it." United States v. Gotti, 753 F. Supp. at 446.
Since that decision was issued, the integrity of this court
and its processes have been called into question. Public
declarations have been made, for example, that "the
Constitution has been thrown out the window" in this court;
that the indictment returned against the defendants by a duly
constituted grand jury was a manifestation of a governmental
vindictive vendetta; that the prosecutor has lied to the
court.*fn1 Such declarations may well create doubts in the
minds of the public whether the federal
courts are indifferent to the Constitution of the United
States; whether federal judges act in callous disregard of the
fundamental rights of persons appearing before them and whether
the government's enforcement of the criminal laws is motivated
by personal animus and vindictiveness. Such declarations may,
indeed, cause a diminution of confidence in the federal courts
and its processes.
The doubts and diminution of confidence which such
declarations may prompt gives particular immediacy to the
public's First Amendment right of access to a criminal trial
and its preliminary proceedings. Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).
That right enables the public to observe their judges; to
observe the manner in which they discharge the sensitive
responsibilities of their office and to observe the judicial
process in operation. Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Such
access will either dispel doubts and bolster confidence in
their governmental institutions or enable them to seek such
redress of grievances and from such sources as they may deem
Thus, the considerations which initially informed my judgment
to close the bail hearing to the public and to seal the
submissions no longer obtain. The denial of the motion to
suppress the fruits of the electronic surveillance, and more
particularly, the public declarations calling the integrity of
this court and its processes into question, make it appropriate
that the records of these proceedings be unsealed.