The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION AND ORDER
By order to show cause dated May 20, 2009, the defendant, Roger Corbin ("Corbin") petitions the Court, among other things, to preclude certain media outlets from publishing photographs of his arrest and subsequent transport in handcuffs and to prohibit the United States Government (the "Government") from staging "perp walks" of criminal defendants. The term "perp walk" is colloquially used to refer to the practice whereby law enforcement agencies handcuff criminal defendants, regardless of the crime charged or circumstances of their arrest or surrender, for the purposes of transport from one facility to another.
From 1995 to the present date, Corbin has served as a Nassau County Legislator for the Second Legislative District of Nassau County, covering New Cassel, Westbury and portions of East Garden City, East Meadow, Hempstead, Hicksville, Lakeview, Old Westbury, Rockville Centre, Uniondale and West Hempstead. Accordingly, the Court considers Corbin to be a public figure and a newsworthy individual.
Corbin was charged on the basis of an eighteen page criminal complaint filed on May 5, 2009. The complaint alleges that between April 2006 and April 2008, the defendant failed to report as income on his federal tax returns approximately $226,000 deposited into bank accounts in his name. The complaint further alleges that Corbin received these funds in the form of 82 checks from a New York real estate developer. Further, that the defendant's failure to report the funds resulted in a total federal tax loss of approximately $70,824 for tax years 2005, 2006 and 2007. In addition, the defendant was charged with lying to federal agents during an initial interview when he denied that he retained any of the funds for his personal use. Corbin was arraigned on May 6, 2009 and the complaint was unsealed by United States Magistrate Judge Arlene R. Lindsay on that date.
By the present motion, Corbin seeks an order of the Court:
(A) permanently enjoining, restraining, and stopping Newsday, News 12 and the United States Government from issuing press releases, mug shots or "perp walk" photos, videos or images of the defendant in handcuffs; and
(B) permanently enjoining the United States Government from conducting "perp walks" or issuing other information of the defendant aside from pedigree information and except as directed by the Court; and
(C) immediately conducting a hearing to determine whether Rule 6 of the Federal Rules of Criminal Procedure has been violated and whether the New York Rules of Professional Conduct § 3.6 has been violated; and
(D) holding the United States Government in contempt pursuant to Federal Rules of Criminal Procedure Rule 6(e)(7); and
(E) dismissing the charges against the defendant and sealing the record. Upon presentation of the motion, the Court heard preliminary argument from the parties, as well as from counsel for Newsday and News 12. The Court denied the issuance of a temporary restraining order and adjourned the matter to May 29, 2009.
I. As to Corbin's Motion to Enjoin Newsday and News 12
"[I]t is the trial judge's primary responsibility to govern judicial proceedings so as to ensure that the accused receives a fair, orderly trial comporting with fundamental due process." United States v. Noriega, 917 F.2d 1543, 1548 (11th Cir. 1990) (emphasis in original). In the seminal case, Nebraska Press v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the Supreme Court of the United States, recognizing that the right to trial by an impartial jury and the right to a free press are in tension in sensational criminal cases, declined to assign a priority of rights to be applied in all circumstances. Nebrasksa Press, 427 U.S. at 560--61. Nebraska Press arose out of the 1975 murder of six members of the Kellie family in Sutherland, Nebraska, a town of approximately 850 people. Id. at 542. Due to the widespread media attention, the County Attorney and counsel for the defendant jointly requested that the County Court issue a restrictive order prohibiting disclosure of testimony or evidence to the public due to the likelihood that the news coverage would make it difficult, if not impossible to impanel an impartial jury. Id. The case was transferred to the State District Court, who allowed members of the press to intervene and entered its own restrictive order prohibiting reporting of certain matters until after a jury had been impaneled because of a "clear and present danger" that pretrial publicity would impinge the defendant's right to a fair trial. Id. at 543--44. The State Supreme court upheld the order in modified form, noting that under Nebraska law, the defendant would be tried within six months of his arrest and a change of venue could move the trial only to adjoining counties. Id. at 545.
On appeal, the United States Supreme Court began by noting a blemished history in which public passions threatened the accused's Sixth Amendment right to a fair trial, stating that "the measures a judge takes or fails to take to mitigate the effects of pretrial publicity . . . may well determine whether the defendant receives a trial consistent with the requirements of due process." Id. at 551--56. On the other hand, the Court noted that the free press guarantees provided by the First Amendment "afford special protection against orders that prohibit the publication or broadcast of particular information or commentary orders that impose a 'previous' or 'prior' restraint on speech." Id. at 556. However, recognizing that the freedom of the press is not absolute, the Court cautioned that "[t]he extraordinary protection afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly a duty widely acknowledged but not always observed by editors and publishers." Id. at 560.
In determining whether "'the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger,'" the Court considered three major factors. Id. at 562 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950), aff'd 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). In addition to reviewing the precise terms of the restraining order, the Court examined: (1) the nature and extent of pretrial news coverage; (2) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (3) how effectively a restraining order would operate to prevent the threatened danger. Id. at 563.
Although the Court concluded that the trial judge was justified in finding that the intense publicity of the case might impair the defendant's right to a fair trial, it found that the trial court utterly failed to examine and make factual determinations as to whether measures short of prior restraint would have guaranteed the defendant a fair trial. Id. at 563--4, 569 ("We cannot say on this record that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary."). Further, the Court found that given the impracticalities in policing pretrial restraining orders and predicting what material would in fact undermine juror impartiality, the restraining order itself was not a clear solution in protecting the defendant's rights. Id. at 567. Accordingly, the Court invalidated the restraining order.
Among the permissible alternatives that the trial court might have considered were: a change of trial venue to a place less exposed to the intense publicity; postponement of the trial to allow public attention to subside; searching questioning of prospective jurors; the use of jury instructions regarding the sworn duty of each juror to decide the issues only on evidence presented at trial; and in necessary, the sequestration of impaneled jurors to dissipate the impact of pretrial publicity and emphasize the elements of the jurors' oath. Id. at 563--64. In addition, the Court noted that in appropriate cases, trial courts may limit what attorneys, law enforcement, and witnesses may say to anyone. Id. at 564, 569 ("It is significant that when this court has reversed a state conviction, because of prejudicial publicity, it has carefully noted that some course of action short of prior restraint would have made a critical difference.").
Further, closer to home, in United States v. Quattrone, 402 F.3d 304 (2005), the Second Circuit held that a trial court's order restraining the press from publishing names of jurors sitting on a non-anonymous panel was an impermissible prior restraint on free speech. In reiterating the three factors to be considered under Nebraska Press, the court noted that "[w]here the category of speech otherwise received First Amendment protection . . . courts subject prior restraints on speech or publication to exacting review." Similarly, in Noriega, the Eleventh Circuit stated that "[n]otwithstanding the District Court's broad discretion to balance First Amendment interests with a criminal defendant's Sixth Amendment right to a fair trial, a conclusory representation that publicity might hamper a defendant's right to a fair trial is insufficient to overcome the protections of the First Amendment." Noriega, 917 F.2d at 1549.
On the present record, the Court makes the following findings of fact: (1) the defendant in this case is a local public official and a newsworthy subject; (2) it is undisputed that the media organizations Newsday, the publisher of a daily newspaper, and News 12, a cable news network serve Nassau County and surrounding areas, including the region represented by the defendant; and (3) media reports regarding the criminal charges against the defendant are likely to be seen, read, or "of interest" to local citizens, who are included in the pool of potential jurors for this district. Further, recurring images of the defendant being transported in handcuffs carries with it some risk that the defendant's right to a fair trial will be jeopardized.
On the other hand, the Court takes judicial notice of the fact that the populous Eastern District of New York includes not only the County of Nassau, but also Kings, Queens, Richmond and Suffolk Counties. See General Information Webpage for the United States District Court for the Eastern District of New York, Geography, available at http://www.nyed.uscourts.gov/General_Information/Mission_Statement/ mission_statement.html. In addition, the region encompassed by this district is largely "metropolitan," with more than seven million people residing in its five counties. Id.; see United States v. Bowe, 360 F.2d 1, 11 (2d Cir. 1966) ("'[F]requently in this large metropolitan district prospective jurors show little recall of past widely publicized matters . . . .'" (quoting United States v. Kahaner, 204 F. Supp. 921, 924 (S.D.N.Y.1962)); United States v. Griffin, No. 94CR63, 1996 WL 140073, *1 (S.D.N.Y. March 27, 1996) (noting that "courts have long held that in a large metropolitan area, prejudicial publicity is less likely to endanger a defendant's right to a fair trial"
Further, the Court finds that publicity has not been ubiquitous. By defense counsel's own account, the matter has not been widely publicized by other local news sources, such as the New York Times, the New York Post, and the New York Daily News, to name the major other newspapers. (Tr. Proceedings on Motion for Order to Show Cause, May 20, 2009, at 7:8--12); Memorandum of Law in Further Support of Defendant's Order to Show Cause, May 26, 2009 at 4--5. In addition, the trial and jury selection in this matter is, with reasonable certainty based on past experience, at least six months away. This substantial time lapse will permit the initial publicity stemming from Corbin's arrest to subside. 2008 Federal Court Management Statistics of the Administrative Office of the United States, available at http://www.uscourts.gov/cgi-bin/cmsd2008.pl, (reporting 19.5months to be the median time from filing to disposition of criminal felony matters in the Eastern District of New York); see Bowe, 360 F.2d at 11("Both the Supreme Court and this court have indicated that the length of time between the publication of adverse publicity and the empanelling of the jury is a significant factor in assessing claims of prejudice resulting from pre-trial publicity."). Accordingly, the Court finds that the defendant has failed to establish that the publicity in this case would pose any difficulty in impaneling an impartial jury of twelve persons and alternates in this expansive, densely populated district.
These facts, combined with the alternatives available to the Court in empaneling a fair and impartial jury, including the use of screening questionnaires, a thorough and searching voir dire, and perhaps affording additional peremptory challenges to the defendant, lead the Court to conclude that the prior restraint requested is unnecessary. See Griffin, 1996 WL 140073, at *2 ("Courts have long held that a thorough voir dire examination of potential jurors is a sufficient device to eliminate from jury service both (1) those so affected by exposure to pre-trial publicity and (2) those with some knowledge of the facts and circumstances of the case that they cannot fairly decide issues of guilt or innocence."); see also Knapp v. Leonardo, 46 F.3d 170, 176 (2d Cir. 1995) ("[T]he Constitution does not require ignorant jurors, only impartial ones."), cert. denied, 515 U.S. 1136, 115 S.Ct. 2566, 132 L.Ed.2d 818 (1995).
The defendant also raises the issue of the effect of pretrial publicity on nonsequestered grand jurors, who evidently are presently conducting an investigation in this case. First, the Court notes that grand jurors are instructed to disregard media coverage on matters before them. Second, no indictment has been handed down, and nothing precludes the defendant from making a motion to dismiss any future indictment if it appears that the publicity in this case interfered with the grand jury proceedings. It would be unprecedented to restrain the media because of potential effects on a grand jury investigation. The proper question here is the effect of publicity on sitting an impartial petite jury and the necessity of prior restraint in ensuring a fair trial .
Although the Court is troubled by the repeated use of images of Corbin in handcuffs despite the availability of numerous other photographs from his years of service as a public official, it is simply without authority to censor the press in this matter and cannot instruct the press as to what images are newsworthy. In the context of this criminal matter, the Court cannot consider whether the images may have other negative effects, such as injury to the defendant's public image or reputation. Accordingly, the Court finds that a prior restraint on the publication of images of the defendant in handcuffs is unnecessary to safeguard his right to a fair trial.
II. As to the Corbin's Motion to Enjoin the United States Government
Corbin seeks an order of the Court permanently enjoining the United States Government from conducting "perp walks" in any case. Corbin's request presents a non-justiciable issue on the ground that it is moot.
Courts may exercise jurisdiction only over live cases and controversies. Independence Party of Richmond County v. Graham, 413 F.3d 252, 255 (2d Cir. 2005). Thus, if the Court cannot grant any effectual relief to a prevailing party, it must dismiss the case, rather than issue an advisory opinion. See ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir. 2004) (discussing mootness on appeal)). In ...