United States District Court, E.D. New York
Carter H. Burwell, Colleen Elizabeth Kavanagh, Jack Smith, James G. McGovern, Jason Allen Jones, Celia Cohen, Shreve Ariail, United States Attorneys Office, Brooklyn, NY, for United States of America.
Colleen Quinn Brady, The Law Office of Colleen Quinn Brady, David Stern, Rothman, Schneider, Soloway & Stern, P.C., Beverly Van Ness, New York, NY, Michael N. Burt, Law Office of Michael Burt, San Francisco, CA, for Defendant.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
Defendant Ronell Wilson faces a penalty phase proceeding during which a jury will determine whether he should be sentenced to death or life in prison. Prospective jurors will begin completing questionnaires on April 3, 2013. Voir dire is scheduled to begin April 17, 2013. The penalty phase itself is to begin on May 20, 2013, or as soon as possible after voir dire is complete. Wilson has filed three motions: (1) a request that the court order the Government to determine the source of a recent news article; (2) a motion to restrain the parties from speaking to the press; and (3) a motion to appoint a consultant to help him determine whether to file a motion for a change of venue. For the reasons set forth below, Wilson's first motion is DENIED; his second and third are DENIED WITHOUT PREJUDICE.
I. MOTION TO IDENTIFY THE SOURCE OF A NEWS ARTICLE
Wilson seeks an order that instructs the Government to " determine whether the person providing information to the press regarding [his case] is a government employee." (Feb. 25, 2013, Def. Ltr.  at 1.) This request is denied.
Specifically, Wilson requests that the Government be ordered to root out the source of a recent news article because " it appears that th[e] information [reported in the article] was known only to the government, and never used in open court." ( Id. ) He is mistaken— without crediting the accuracy of the news article, there are many
people outside of the Government who may have first-hand knowledge of, or later become aware of, this alleged information, and who may have been the source. And whether the penalty phase jury will hear testimony regarding this information may be the subject of a motion in limine in this proceeding. The court will not needlessly divert the Government's attention at this critical juncture. This motion is therefore denied.
II. MOTION TO PREVENT ALL PARTIES FROM SPEAKING TO THE PRESS
Wilson also asks that the court restrain the parties from speaking to any member of the press regarding this case. (See Feb. 25, 2013, Def. Ltr. at 1.) This request is denied without prejudice.
Before the court may impose any sort of " gag order," it must, among other things, determine whether " other available remedies would effectively mitigate the prejudicial publicity." In re App. of Dow Jones & Co., 842 F.2d 603, 611 (2d Cir.1988); see also Local Crim. R. 23.1(h) (requiring that before imposing an order governing " extrajudicial statements," the court " shall consider whether such an order will be necessary to ensure an impartial jury and must find that other, less extreme available remedies, singly or collectively, are not feasible or would not effectively mitigate the pretrial publicity and bring about a fair trial" ). These possible measures include a change of venue; trial postponement; a searching voir dire; emphatic jury instructions; emphatic warnings to the press and parties; an anonymous jury; and sequestration of jurors. See Sheppard v. Maxwell, 384 U.S. 333, 358-63, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Quattrone, 402 F.3d at 311-12; Dow Jones, 842 F.2d at 611; see also Local Crim. R. 23.1(h) (" Among the alternative remedies [for the court to] consider[ ] are: change of venue, postponing the trial, a searching voir dire, emphatic jury instructions, and sequestration of jurors." ).
At this stage, the court is convinced that an appropriate combination of these " alternative remedies" will mitigate any prejudicial effects of the recent publicity on this case. Most importantly, the court is prepared to conduct an exhaustive jury selection process to empanel a fair and impartial jury. The questionnaire will inquire as to each prospective juror's exposure to the news coverage on this case. The court is also prepared to question each prospective juror that has been exposed to such coverage to determine whether she is able to put aside anything she may have seen and decide the issues solely based on the evidence presented at the penalty phase. Based on the court's experience in selecting death penalty juries (including one ...