The opinion of the court was delivered by: MCKENNA
Daily News, L.P., the publisher of the New York Daily News, that paper's reporter Greg Smith, NYP Holdings, Inc., the publisher of the New York Post, and that paper's reporter Al Guart, apply for an order unsealing, with one exception, all transcripts sealed during the trial of the above case.
The sealed transcripts fall into three categories: (1) voir dire of prospective jurors; (2) selection of the jury through the exercise of peremptory challenges; and (3) robing room and sidebar conferences at which questions of the admissibility of evidence were discussed and ruled on. All of the matters sealed were sealed at the request or with the concurrence of the government and the defendant. Defendant opposes the application. The government takes no position.
The application presents the difficult problem of accommodating the very different interests protected by the First and Sixth Amendments to the United States Constitution. The law, in its general statement, is clear enough. In United States v. Cojab, 996 F.2d 1404 (2d Cir. 1993), it was summarized thus:
The general proposition that trials are to be open to the public and the press is explicitly rooted in the first place in the Sixth Amendment, which couples it with the right to an impartial jury. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; . . . ." U.S. Const., Amend. VI. See Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 1631, 14 L. Ed. 2d 543 (1965) ("The purpose of the requirement of a public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned.") The proscription of "criminal proceedings conducted in secret," Cojab, 996 F.2d at 1407, is thus principally concerned with the protection of the accused. That is not at issue here, where it is the defendant himself who seeks to maintain closure of the portions of the transcript at issue so that he may receive a fair trial by an impartial jury.
The following facts are relevant to the present application.
Defendant is a prominent promoter of boxing matches who has, for some while, received considerable attention from the press and other media. Press coverage concerning the charge which is the subject of the present case appeared even prior to the filing of the indictment. Very shortly before trial, a book by Mr. Newfield, titled Only in America: The Life and Crimes of Don King, was published. From the very beginning of the case, it was extensively covered by the press. Much of the press coverage relating to defendant is negative, and much deals with supposed conduct on his part which is plainly both inadmissible in evidence and prejudicial. Defendant is black.
Voir dire was conducted in the jury room, one prospective juror at a time, with only the Court and counsel present.
The immediate proximity of the jury room to the courtroom would have made it readily apparent to anyone in the courtroom that the voir dire was being conducted in the jury room, into which prospective jurors were called from the courtroom in succession, over a period of days. No member of the press sought to be present for the voir dire.
The exercise of peremptory challenges took place in the robing room, at sidebar, and in the courtroom. What took place in the courtroom, of course, is not at issue on the present application. No member of the press sought to be present at the robing room or sidebar segments of the process of the exercise of peremptory challenges.
From time to time during the trial, the Court held conferences with counsel either in the robing room, or, more briefly, at sidebar, concerning evidentiary matters. During these conferences both sides discussed the admissibility of proffered evidence. Some evidence was excluded. No member of the press sought access to these conferences.
The trial ended on November 17, 1995, when the jury was discharged because it could not reach a unanimous verdict. The government has stated that it will seek a second trial, no date for which has as yet been set. The first application for the ...