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March 13, 1992

In re Applications of Daily News and New York Post UNITED STATES OF AMERICA


The opinion of the court was delivered by: I. LEO GLASSER


GLASSER, United States District Judge:

 On Friday, February 21, 1992, counsel for the Daily News hand-delivered a letter to the court on behalf of their client and also on behalf of the New York Post, The New York Times, New York Newsday, the Staten Island Advance, and WNYW-TV. This submission requested an opportunity to be heard as quickly as possible concerning the media's applications that (1) transcripts of recent sidebar conferences and conferences held in chambers be unsealed and that (2) future sidebar conferences conducted while the jury is absent from the courtroom and conferences in chambers be held such that the media has access to them contemporaneously or at the earliest practicable time. Counsel's letter correctly expresses an understanding that transcripts of several sidebar and chamber conferences have been sealed. The letter then proceeds to a brief discussion of the media's interpretation of thee relevant caselaw (reference to which was also made when the court held the requested hearing on the morning of February 24, 1992).

 By letter dated March 5, 1992, counsel for the New York Post -- acting on behalf of an ad hoc consortium of other news organizations, including National Broadcasting Company, Inc. in addition to those already named in the letter of February 21, 1992 -- made a similar application and also requested an opportunity to be heard at the court's earliest convenience. That opportunity was afforded counsel on March 10, 1992. In this letter, as well as in the letter of February 21, 1992, counsel felt obliged to call the court's attention to what they perceive to be the court's constitutional obligation as defined in reported cases. The court's familiarity with its obligations and with the controlling cases, it ventures to hope, have been adequately reflected in two opinions already written on this subject during the course of this case. See United States v. Gotti, 753 F. Supp. 443 (E.D.N.Y. 1990) and United States v. Gotti, 771 F. Supp. 567 (E.D.N.Y. 1991).

 Before turning to the relevant cases and to a consideration of the legal principles this court understands them to announce, a brief history of what has already transpired may be useful to put into context and into focus the matter now before the court. Since the return of the indictment in this case in December 1990, issues of more than routine complexity have been continuously presented for resolution. Most important for purposes of this proceeding is an order issued on November 14, 1991 directing that the jury for this trial be sequestered and anonymous. Although that order, found at 777 F. Supp. 224, sets forth in detail the reasons for that decision, it is useful to summarize them here.

 During Gotti's previous trial in this district, defense witness Matthew Traynor perjured himself; Traynor later asserted under oath that Gotti and Gotti's attorneys had suborned his perjury. Further, in the course of that trial, the presiding judge, Judge Nickerson, found Gotti responsible for the intimidation of a witness who refused to identify Gotti at an earlier state trial despite having identified him on other occasions and despite having testified against him before the grand jury. In addition, this court took note of specific allegations of jury tampering directed at several of Gotti's associates, including his brother Peter. Finally, this court also noted the inordinate amount of publicity that this case had already generated and the certainty that such extraordinary media coverage would continue throughout the trial. In the period since the issuance of that order, the prediction of continued intensive media coverage has proven accurate.

 On January 21, 1992, a venire of approximately 550 persons was summoned. After being instructed by the court, each member of the venire completed a twenty-one page questionnaire which was then duplicated and distributed to the court and to the parties. The following several days were occupied by the court and counsel reviewing thousands of pages of responses in order to determine who among the veniremen should be dismissed for cause. The individual voir dire of those veniremen not disqualified began on January 29, 1992. Over the following two weeks, more than two hundred prospective jurors were interviewed individually by the court in the presence of the parties, counsel, and one media representative. The media representative rotated throughout each day to permit print, radio, and television organizations to attend the proceedings.

 It quickly became clear during the course of the individual voir dire that many prospective jurors could not serve because the projected length of the trial during which they would be sequestered would impose an undue hardship, because of bias stemming from the notoriety with which the media has invested the defendants, or because of fear. (More than one potential juror entered the room shaking uncontrollably or in tears.) The veniremen who were found qualified after this screening process were immediately sequestered under the supervision of the United States Marshals. At that stage, the court declined to impose full sequestration restrictions (such as censorship of all print and broadcast communications and monitoring of phone calls and familial visits) in the hope that it would mitigate the rigors of sequestration for those who might never ultimately be chosen to serve as jurors.

 During this period, the court received notes from sequestered potential jurors requesting to be excused for a variety of reasons including fear for personal safety, the hardship of sequestration, and other legitimate concerns. Approximately 18 potential jurors were lost in this manner. Particularly disturbing were the requests to be excused prompted by concern that anonymity was compromised through identifying data revealed during the voir dire and subsequently published in newspapers (notwithstanding the awareness of media representatives of the great lengths to which the court had gone to preserve juror anonymity). Prospective jurors were shocked to read in the press responses made by others during the voir dire process. They questioned the court's assurances that their anonymity would be sedulously guarded, and several who were initially qualified were subsequently excused because of fear that their identity and the identities of their families would become known.

 In the middle of this process, it came to the court's attention that documents submitted under seal had fallen into the hands of the media. The media published the contents of these documents even after at least one reporter had confirmed with the office of the United States Attorney that the documents were in fact sealed. Immediately thereafter, the court was compelled (on the legitimate request of the defendants) to examine each of the potential jurors individually and outside the hearing of the press and counsel, and to dismiss those jurors whose objectivity had been compromised. The transcript of those interviews, conducted on the mornings of February 3 and 4, was sealed.

 Between that time and the filing of the Daily News motion, the court also sealed the transcripts (totalling approximately 55 pages) from three in camera and sidebar conferences. Five more in camera conferences from the week of March 2 have been sealed since then.


 A. In Camera Questioning of Jurors

 The Supreme Court first had occasion to decide whether the guarantees of open public proceedings in criminal trials apply to voir dire examination of potential jurors in Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press Enterprise I). In that case, a California trial court conducted a voir dire over a period of six weeks, all but three days of which was closed to the public. The Supreme Court held that the presumption of openness applicable to criminal trials extends to the jury selection process and "may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 510. The Court also recognized that "the jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain." Id. at 511; see also Cable News Network, Inc. v. United States, 824 F.2d 1046 (D.C. Cir.), cert. denied, 484 U.S. 914 (1987). Two years later, in Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press Enterprise II), the Court was called upon to decide whether the presumption of openness applied to preliminary hearings in a criminal case and decided that it did. The preliminary hearing in a question continued for 41 days and was closed to the public. The Court there reiterated the principle stated in Press Enterprise I that "proceedings cannot be closed unless specific, on the record findings are made demonstrating that 'closure is essential to preserve higher values and is narrowly tailored to serve that interest.'" Id. at 11.

 Counsel for the media acknowledge, as they must, that the First Amendment right they assert is not absolute. They recognize that the trial judge has an interest in protecting juror privacy. They recognize too that the Sixth Amendment right of the defendant to a fair trial may weigh more heavily in the balancing of Sixth and First Amendment rights and may therefore justify the imposition of limitations upon the latter. Although not explicitly provided for in the Constitution, it is submitted that the interest of the government in a fair trial is a significant one, which also demands recognition in the First Amendment equation.

 Chief Justice Burger, in Press Enterprise I, declared that "no right ranks higher than the right of the accused to a fair trial." 464 U.S. at 508. That case also recognized that

 a trial judge may, "in the interest of the fair administration of justice, impose reasonable limitations on access to a trial. 'The question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge . . . the opportunities for the communication of thought and the ...

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