camera voir dire and of juror interviews from the week of March 2, 1992. The privacy interests of the jurors, the Sixth Amendment interests of the defendants, and the need, (especially in the context of this case) to avoid multiplying publicity upon publicity all weigh against disclosure. Having reviewed the transcripts, the court is likewise satisfied that no less-restrictive alternative would suffice.
Sidebar and In Camera Conferences With Counsel
In the case of sidebar colloquies and in camera conferences, it is clear that the right of access is not a right of "contemporaneous presence. For example, one Supreme Court Justice has noted that when engaging in interchanges at the bench, the trial judge is not required to allow public or press intrusion into the huddle. Nor does this opinion intimate that judges are restricted in their ability to conduct conferences in chambers, inasmuch as such conferences are distinct from trial proceedings." Richmond Newspapers, 448 U.S. at 598 n.23 (Brennan, J., concurring); see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982) (citing with approval Justice Brennan's opinion in Richmond Newspapers).
This doctrine permits not only the exclusion of the public from such conferences, but also the withholding of the transcript itself. For example, the panel in United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977), cert. denied, 435 U.S. 968 (1978), upheld the trial court's refusal to release transcripts of a number of sidebars. As the court noted: "Bench conferences between judge and counsel outside of public hearing are an established practice . . . and protection of their privacy is generally within the court's discretion. . . . Such conferences are an integral part of the internal management of a trial, and screening them from access by the press is well within a trial judge's broad discretion." Id. at 1210.
It is true that the Third Circuit has held, in United States v. Smith, 787 F.2d 111, 115 (3d Cir. 1986), that the First Amendment right of access applies to sidebar and chambers conferences under some circumstances. As the Smith court was careful to note, however, its decision applied the right of access only to sidebar conferences in which evidentiary or other substantive rulings were involved; the court expressly declined to extend the right of access even to those conferences relating only to collateral matters at trial. Id. at 115 n.2.
General concerns about the fair administration of justice, whether or not within the Sixth Amendment's reach, may also serve as the basis for sealing sidebar transcripts. In In re Application of Washington Post Co., 576 F. Supp. 76 (D.D.C. 1983), the court dealt with issues surrounding a celebrated criminal case not unlike the present one. In that case, a panel of 175 veniremen had been called for the trial, which was expected to last for several weeks, and sequestration and other protective measures were considered (but eventually abandoned) because of publicity. Id. at 78. In refusing to unseal the transcripts of five bench conferences, the subject matter of which was not relevant to issues in the case, id. at 79 n.5, the court pointed specifically to the likely prejudicial effect of disclosure on both the jurors and the witnesses in the case. Id. at 79. Moreover, the court observed that sealing the documents, which amounted to less than 20 pages out of at least 4,000 transcript pages as of that date, constituted the least restrictive alternative available to it. Id. at 80.
At issue in these motions are the transcripts of conferences on February 18, 19, and 20, and five conferences from the week of March 2. Because the court has already made specific factual findings in the sealed records both from February 20 and from the week of March 2, this opinion will address only the transcripts for February 18 and 19.
The motion to unseal is denied as to the transcript for February 18. That transcript -- which consists of 16 pages out of over 2,200 as of that date -- does not relate to any substantive or evidentiary matter in this trial. In addition, the court finds that releasing the transcript would inflict reputational harm on a third party not currently before the court, a basis on which numerous courts have previously kept proceedings sealed. See United States v. Smith, 787 F.2d 111, 116 (3d Cir. 1986) (records may be sealed in appropriate cases to avoid harm to third parties); United States v. Haller, 837 F.2d 84, 88 (2d Cir. 1988) ("Protection of such privacy interests is especially important when the third parties . . . may be unaware of the threatened danger to their interests and may not appear before the district court to protect themselves."); cf. United States v. Smith, 776 F.2d 1104, 1114 (3d Cir. 1985) (court declined to unseal bill of particulars where reputational harm to unindicted coconspirators was foreseeable).
As to the five-page sealed transcript of the February 19 sidebar, the motion to unseal is likewise denied. As before, that transcript contains nothing relating to the substance of these proceedings. In declining to unseal the record, this court relies on the Supreme Court's observation in Nixon that courts may "refuse to permit their files to serve as reservoirs of libelous statements for press consumption . . . ." 435 U.S. at 598.
Finally, after additional review of the remaining transcripts, the court concludes that pages 1039-43, pages 1206-23, and page 1478 (from line 21) to 1479 (through line 21) should be unsealed. Those segments do not implicate the values and the concerns that justify non-disclosure elsewhere.
I. Leo Glasser
United States District Judge
Dated: Brooklyn, New York
March 13, 1992