In Re United States Ex Rel. The Pulitzer Publishing Company and Edward H. Kohn

Knaup, Kathianne Asst. Atty., U. S. St. Louis, Mo., for United States. ex rel. In re STATES UNITED COMPANY PULITZER PUBLISHING Frankel, Mo., J. Clayton, Leonard Kohn, H. Petitioners. and Edward Weigand. Elizabeth No. 80-1957. Passanante, Louis, Mo., Paul J. St. Stephen Poludniak. Appeals, United States Eighth Circuit. ROSS, judge, GIBSON, Before Circuit HENLEY, Judge, Circuit Circuit Senior Oct. 1980. Submitted Judge. Nov. Decided ROSS, Judge. H.

On October the Honorable Wangelin, Judge of the Kenneth Chief District for the East- United States Missouri, ern District of commenced voir open dire examination of veniremen in court for the trial of United v. Po- States Weigand. ludniak and In this criminal ac- two charged tion defendants have been attempted money extortion of from Eagle- United States Senator Thomas conducting part ton Missouri. After courtroom, the voir dire in the judge announced that por- he would close tions of the voir dire to the examine individually veniremen in his chambers. Closure was ordered on the mo- tion of op- the defendants which was not posed by Judge Wange- United States. lin did not state for the record his reasons stage for closure of the at this indicate, however, of the trial. He did prospective he intended to ask they whether unduly would be influenced testimony Eagleton Senator whether the veniremen had bias toward Scientology. Church of The church had been mentioned in connection with the al- leged plot, extortion one of the defendants having been a member of that church. 15, 1980, petitioners On October filed this petition for a writ of mandamus in accord- panel ance with 28 U.S.C. Judge Wangelin the court asked to discon- conducting tinue voir dire un- in-chambers opportuni- til such time as this court had an later, ty to Two consider the matter. hours Evans, Hoemeke, Michael P. Casey, Casey presence this court convened in the Louis, Mo., Daly, respondent, & for Pulitzer attorneys petitioner, St. Pub. for the Co., States, et al. attorney

677 on the attorneys any right pub- the defendants in the criminal record of for petitioners’ press claim is de- lic or to attend that action from which of the chambers; hearing petitioners the as- trial rived. At the held and most im- portantly, judge the closure of voir the trial position their made no find- serted ings access proceedings support constituted denial of on the record to closure dire press public required by and the in violation of Richmond to the Inc. petitioners’ Virginia, supra,-U.S.-, the first amendment v. 100 2814, speech press. Respon- (1980). of freedom of S.Ct. 65 L.Ed.2d 973 contended that he believed the re- dent 2. We the balance of the jurors, if available to sponses by prospective open proceedings voir dire be held in potential public, or if made other copy further direct that a of the tran- prejudiced other would have influenced or script held cham- prospective jurors. respondent’s It was bers be filed with the Clerk of the Dis- publication contention that of these com- trict possible Court as soon as and made adversely ments would have affected the public, available to including the the procedure. remainder of the selection press., 3. We direct the judge district hearing parties’ respective legal After all insert into the record at the conclusion of considering the relevant facts positions dire, holding voir his reasons a part case, pertinent and law to this this court the voir prospective dire examination of following the entered order: jurors in chambers. This shall include his hearing This matter came on for reasoning weighing the interests of a October, 1980, day p. 15th at 1:30 m. fair trial with the public upon petition the for writ of mandamus attend the trial. petitioners the set forth above. filed 4. A written opinion prepared will be Present in the courtroom were the attor- and filed at a later date. neys petitioner, respondent, States, attorney for the United The copy Clerk shall distribute a of this order, attorneys for the defendants in the judgment constitutes a petitioners’ criminal action from which the merits of the to counsel for ; petitioners, respondent, claim is derived. the United States and the defendants in the district court parties presented All to the court their questioned procedure trial in which the respective legal positions and their under- place. took standing of the relevant facts. court has considered the case based We governed by believe that this case is presented law facts and under the on the law as set forth in De Gannett Co. v. subject as set forth in Gannett Co. v. 368, 2898, Pasquale, 443 U.S. 61 2898, DePasquale, 368, U.S. S.Ct. (1979) L.Ed.2d Newspa and Richmond (1979) 61 L.Ed.2d 608 and Richmond pers, Virginia,-U.S. -, Inc. v. (1980). S.Ct. 65 L.Ed.2d 973 In Gan nett, Court considered wheth express and with the consent of all indepen er members of the have an para- described in the first dent constitutional of access under the graph, following we enter the order: pretrial judicial sixth amendment pro 1. The in-chamber voir dire of the accused, ceeding though prose even prospective jurors, held to the exclusion cution, judge agreed and the trial to the press, inappro- proceeding closure of that in order to assure priate for the following reasons: a fair trial. The Court held that the sixth

The judge inquire guarantee trial did not or at- amendment’s to the accused aof tempt gave find an alternate solution trial neither the nor the press which would have met the need to en- an enforceable of access to a fairness; sure pretrial suppression hearing. there was no did speech press the first and fourteenth freedom of and ‘of not decide whether could be ” guarantee public right eviscerated.’ amendments Virginia, supra, -U.S.-, attend trials. signifi 65 L.Ed.2d 973. Of factors influenced the Court Several importance cant in ordering judge Gannett to conclude that opening of the trial was the fact that properly ordered the closure of the had judge findings sup “the trial made no to pretrial proceeding. Despite the failure of closure; port inquiry no was made as to spectators object the the any of to to de- whether alternative solutions would have closure, they giv- fendants’ motion for were fairness; met the need to insure there was opportunity en an to be heard and to raise any right no of under the Con objections proceeding. ple- such at a After stitution for the or press to attend nary rights consideration of the of both the the trial.” Richmond Newspapers, Inc. v. public, defendants and the the trial court - U.S.-, Virginia, supra, 100 S.Ct. right the a fair found defendants’ 65 L.Ed.2d 973. trial, under the circumstances of that outweighed right the constitutional of ac- granting Our sole reason for the writ in Moreover, press public. cess of the and the this case is based on the failure of the any temporary judge denial of access was and a district to announce his reasons for transcript suppression hearing of the proceed the decision to close the voir dire danger prejudice ings made available once the of and for his failure to balance the dissipated. to the had defendants of the to attend the trial the right of the defendant to a fair trial Richmond, the Supreme Court con- principles accordance with the announced in sidered whether a criminal trial could be supra, Virginia, Inc. v. public upon unopposed closed to the .S.-, at 2829- -U defendant,1 request of a any without dem- Richmond, 65 L.Ed.2d 973.2 As in “[t]he necessary onstration that closure was 'explicit, guaranteed rights speak and to trial, protect the defendant’s to a fair publish concerning place what takes at a overriding or that some other consideration meaning trial would lose much if access to required Supreme closure. The Court held could, here, observe the trial as it was be “that to attend criminal trials is arbitrarily.” foreclosed Id. 100 S.Ct. at implicit of the First Amendment; without the freedom to at- trials, people tend such have exer- The in Richmond made centuries, important aspects parts may cised for clear that of a criminal trial be agreement prejudices 1. Richmond makes it clear that the es or and no alternative solution jurors of the to close the trial should not affect would meet the need to insure that ruling questions openly truthfully.” the decision of the trial court on a answer closure motion. criticizing Judge Wangelin We are not However, closing proceedings. absent find- judge findings, trial The made such after the ings required in Richmond examination, conclusion of the voir dire in com- -, pliance with our order issued this case. may not order, judge noted that he closed uphold proceedings. closure of the voir dire prevent the voir dire “to the an- Indeed, Report of the Judicial Conference any juror influencing swer of one from Operation Jury Sys- Committee on the of the * * * thinking jurors, of other to allow [and] sug- tem on the “Free Press-Fair Trial” Issue jurors express freely themselves with gests juror questioning that the of each in the candor and without fear of retaliation. While judge’s may satisfy chambers ABA standard the effects of the first situation could be avoid- 8-3.5(a) Relating of the “Standards to the Ad- jurors instructing newspa- ed not to read ministration of Justice: Free Press and Fair per jurors, accounts of examination of Report See Trial.” of the Judicial Conference second situation can not be cured in that man- Operation Jury Sys- Committee on the of the very presence press ner. The Issue,- tem on the ‘‘Free Press-Fair Trial” during questioning F.R.D.---(1980). impede expression could their free bias- applied in criminal cases. Thus, closure to be the rule forbid- public. closed to the an trial guidance of a criminal to the trial ding provide closure some “[a]bsent findings” overriding interest articulated requests are when future closure courts The at 2830. Id. 100 S.Ct. not absolute. is made, to articulate the separately I write here it had “no occasion noted that applied. should be which believe standards all or in which circumstances define the opinion of Chief Justice plurality closed to may trial be of a criminal parts * * * Burger holding today does our public, but -, Virginia, -U.S. rights Amendment mean that the First not (1980) (opinion L.Ed.2d 973 representatives * * * J.), standard Burger, trial articulated a broad so C. are absolute. press fair administra- in the interest of the judge, deciding issues. applied to be closure limita- justice, impose reasonable tion “[ajbsent Burger stated that Chief question access to a trial. tions on ‘[T]he overriding interest articulated in find control is is whether that particular a case of a criminal case must be ings, the trial unwarrantedly deny or exerted so as not to (Footnote omitted.) public.” open to the for the com- abridge opportunities .. . the Blackmun, opinion concurring in his of thought and the discussion munication of result, uncertainty in commented immemorially associated public questions this statement: ” Richmond places.’ with resort - I need do no more than observe that supra, v. Newspapers, uncertainty marks the nature-and strict- n.18, 2814, 2830, U.S.-, 65 at 100 S.Ct. the standard of closure the Court ness-of L.Ed.2d 973. opinion speaks of adopts. plurality the district court Prior to the closure overriding “an interest articulated any findings to articulate failed 2830; ante, at Mr. findings,” balancing by [100 S.Ct.] the court any would indicate reserves, perhaps not rights to a fair trial Justice STEWART the defendants’ of access against limitations,” inappropriately, “reasonable do not de- specifically We criminal trial. 2840; ante, at Mr. Justice [100 S.Ct.] permissible whether it would have been cide separate analyti- presents BRENNAN voir dire examina- portions close framework; Mr. Justice POWELL cal judge insert- public had the trial tion to the critical of those Justices Gannett was closing prior the record findings ed his Amendment, who, relying on the Sixth the trial. only that closure is authorized concluded sum, the in-chambers we find “strictly inescapably neces- when inappropriate voir dire of the S.Ct., U.S., 399-400, at 99 sary,” 443 at inquiry of an as to alternate the absence REHNQUIST 2915, con- and Mr. Justice solutions; of a in the absence others, of, among rejection tinues his flat any right under Constitution First Amendment avenue. exam press to attend the voir dire public or at Newspapers, supra, U.S. importantly, most proceedings; ination J., (Blackmun, con- 100 S.Ct. at 2842 in the record of articu in the absence balancing result). of the inter curring lated reasons for and open court in access to ests provide more I now is the time to believe fair to a rights to avoid confusion guidance in order precise required by Richmond trial as the need for level and to obviate at 100 Virginia, supra, -U.S.-, closure issue. appeals on the interlocutory 2814, L.Ed.2d 973. at 65 S.Ct. Supreme reading of After a careful GIBSON, Judge, concur- Senior opinion in Richmond Court’s ring in result. the stan- extend this court should believe announced dards for closure presents this court This case 317, (8th Powers, F.2d 322-23 v. 622 the standards of States opportunity spell out denied, -U.S.-, Cir.), guarantee’ [Gannett, 101 S.Ct. tect the fair trial su cert. 440, 112, pra] 443 U.S. at 99 S.Ct. at 2936 L.Ed. 44 to cases where [Black mun, J., added).” dissenting] (emphasis agree on closure. prosecution and defense Powers, supra, 622 F.2d at 322.1 Powers, adopted the standard out we test, adopting Justice Blackmun’s lined in Justice Blackmun’s dissent Gan regard- he apply noted that would his test 368, 440- DePasquale, 443 U.S. nett Co. less of the consent or nonconsent of the 323; Gannett, prosecutor. supra, Id. at see J., (1980) (Blackmun, dissenting), ap at at 2939. Justice U.S. S.Ct. to “the limited case plied the standard Blackmun articulated number of reasons where the defendant seeks closure without application: for a broad Powers, prosecution.” the consent of the reject suggestion I thus supra, 622 F.2d at 323. We found defendant alone determine when clo- presumption norm and of the sixth “[t]he reject any sure should occur. I also no- amendment is that a trial should be a tion that permit the decision whether to Gannett, proceeding. at closure should be in the hands of the at 2908.” Id. We buttressed this prosecutor theory on the that he is the finding open on the historical tradition of representative public’s interest. It important trials and the societal interests public’s is in observ- Subsequently, which it serves. See id. ing prosecutor, the conduct of the associated, police closely with whom he is -U.S. at---, supra, public-trial provision that the serves. To 2821-26, has reaffirmed our belief in the cloak his own actions or of his asso- those However, position. correctness of this public scrutiny, prosecutor ciates from a specifically expressed opinion Powers we no may hearing thus choose to close a where provided whether first amendment Moreover, the facts do not warrant it. independent right an of access to criminal elected, prosecutors often are trials on the basis of the first and four interest, noted, strong has a Powers, supra, teenth amendments. observing the conduct elected officials. n.3, F.2d at 321 addition, prosecutor may re- fear light finding Court’s appeal strenuously versal on if he too criminal trials to attend is resists the motion of a defendant close implicit the first hearing. Conversely, prosecutor may a amendment su- wrap in the mantle of the interest at-, pra, -U.S. S.Ct. at prejudicial his desire to disseminate infor- see no reason to limit the criteria for clo- trial, mation prior about an accused only sure announced in Powers to cases and so resist a where the motion to close prosecution opposes where the closure. circumstances warrant some restrictions an who seeks Powers we held that accused unwilling on access. I thus am to commit “ strictly closure must ‘establish that it is prosecutor, to the discretion of necessary pro- incom- inescapably and order to whose own misconduct or “strictly inescapably protect adequately neces- sure will not Under his to a standard, sary” again adopted fair trial. three-prong required: Blackmun’s test and The accused who seeks closure should estab- lish tial fair trial proceeding stantial First, Second, support a probability * * * ^[******] he should probability that alternatives the accused should finding will result from public. following: provide irreparable damage there adequate conducting the is show a sub- substan- to clo- basis C.F.R. Powers, Gannett, 1980). will be effective in perceived harm. there is a substantial Third, the accused should demonstrate that (Blackmun, supra, 622 F.2d at supra, 443 U.S. at 50.9, J., Crim.L.Rptr. dissenting). probability protecting against 322-23, quoting See also 28 that closure 99 S.Ct. at (Nov. requirement is petence public-trial part protect, decision

designed an accused’s motion

as to whether granted.

close will be

Id. case, as well as the Richmond News at-, n.3, ease, id.,-U.S.

papers see (Blackmun, J., n.3 concur

100 S.Ct. at 2842 result), that the ring in demonstrates by & Melvin Chambers Chambers T. fully protected by not be Chambers, Chambers, Rodney Magnolia, whatever participants litigation. in the For Ark., Moffatt, La., Shreveport, Robert J. reason, prosecutor in this case consented appellant. for potentially politically to closure in a sensi Malinak, Baker involving a United senator & Botts Robt. Hous- tive case States ton, Tex., Crumpler by The criteria to Anderson & Paul up who was for reelection. C. should, Ark., Crumpler, Magnolia, appellee. applied by the trial court there be fore, whether the regardless be the same BRIGHT, Before not. ROSS McMILLI-

prosecutor consents or AN, Judges.

ORDER court, August consider appeals ation of Nos. 77-1807 and appeals which were from district court or ders the instant affirmed in Sep in part. reversed and remanded YOUNG, Appellant, J. M. 8,1978, tember this court denied the motion rehearing rehearing en banc. (8th Young Ethyl Corp., F.2d 715 Cir. CORPORATION, Appellee. ETHYL 1978), denied, cert. No. 80-1589. (1979). Upon remand plaintiff Young J. M. filed a motion to Appeals, States Court vacate, by it was denied the district court Eighth Circuit. 2, 1980, plaintiff brought June the in appeal. stant Dec.

Because our concern appealed from did not deal issue of prejudgment post-judgment remand, which was to be determined on court order of October directed cause, parties any, why to show if appeal should not be dismissed for failure of dispose the order to of all and issues required by U.S.C. response plaintiff-appellant J. M. Young attempt relitigate is but another general original suit and a collection of principles appellate review. It does not the June address the failure of dispose of all issues. district court order to

Case Details

Case Name: In Re United States Ex Rel. The Pulitzer Publishing Company and Edward H. Kohn

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 25, 1980

Citation: 635 F.2d 676

Docket Number: 80-1957

Court Abbreviation: 8th Cir.