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UNITED STATES v. JACKSON

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 11, 1997

UNITED STATES OF AMERICA,
v.
AUTUMN JACKSON, JOSE MEDINA, a/k/a "Yosi Medina," and BORIS SABAS, a/k/a "Boris Shmulevich," Defendants.

The opinion of the court was delivered by: JONES

MEMORANDUM & ORDER

 BARBARA S. JONES

 UNITED STATES DISTRICT JUDGE

 After holding a conference in the robing room with counsel, the Court with the consent of all parties released a juror after determining that health concerns made it too difficult for her to continue sitting.

 The Court now sua sponte -- without application from any of the defendants, the Government, or the juror -- seals (1) the transcripts recording both the robing room conference concerning the juror and its own conversation with her and (2) the jury note leading to that conference and conversation. *fn1"

 Recognizing that the right of access to criminal trials includes access to the voir dire of jurors, see Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 505-10, 78 L. Ed. 2d 629, 104 S. Ct. 819 (1984), and to the transcripts of proceedings, Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 478 U.S. 1, 10-15, 92 L. Ed. 2d 1, 106 S. Ct. 2735 (1985), the Court finds that the sealing is necessary to protect the juror's privacy in light of the intense media attention this case has received, see Press-Enterprise Co., 464 U.S. at 510, 511-12 (finding that presumption of openness may be overcome by overriding interest, such as a juror's privacy, that necessitates sealing transcript to protect juror) ("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."); United States v. Wolfson, 55 F.3d 58, 60 (2d Cir. 1995) (stating that the right of access to criminal proceedings is "not all-encompassing"); Brandborg v. Lucas, 891 F. Supp. 352, 356 (E.D. Tex. 1995) (noting that becoming a juror does not amount to a willing waiver of an expectation of privacy).

 Additionally, the Court finds that releasing the transcripts would have a chilling effect on the candor of other jurors in this and other high-publicity cases in disclosing health problems or other concerns that might make it difficult for them to continue acting as jurors. This effect could seriously undermine the defendants' Sixth Amendment right to a fair trial, preventing them from receiving a jury physically capable of discharging its duties. See United States v. Cojab, 996 F.2d 1404, 1408 (2d Cir. 1993) (stating that presumption of openness is defeated where closure is necessary to safeguard defendant's right to fair trial and closure is narrowly drawn to serve that specific right); In re New York Times Co., 828 F.2d 110, 114 (2d Cir. 1987) ("Where a potential chilling effect results from the application of a qualified First Amendment right of access, the chilling effect need not be ignored."); United States v. King, 911 F. Supp. 113, 118 (S.D.N.Y. 1995) (finding that release of transcripts of first trial's juror voir dire would reduce the candor of prospective jurors at the defendant's retrial necessitated by hung jury); In re Application of Daily News, 787 F. Supp. 319, 325 (E.D.N.Y. 1992) (holding that the "chilling effect" is a serious impediment to a fair trial when publicity is focused not on the merits, but on the jurors themselves).

 In light of these findings, the Court notes that this sealing order covers only those portions of this trial's transcript concerning the juror's personal and private concerns; it does not impinge on that part of the public's access that "plays a particularly significant positive role in the actual functioning of the process." See Press-Enterprise Co., 478 U.S. at 11 (discussing right of access); Press Enterprise Co., 464 U.S. at 510 (stating that sealing must be "narrowly tailored" to serve the interest protected).

 So ordered.

 BARBARA S. JONES

 UNITED STATES DISTRICT JUDGE

 Dated: New York, New York

 July 11, 1997


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