UNITED STATES of America v. Cyril H. WECHT WPXI, Inc; Tribune-Review Publishing Company; PG Publishing Company d/b/a Pittsburgh Post-Gazette, Appellants.
No. 07-4767.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) Jan. 8, 2008. Filed: Aug. 1, 2008.
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David A. Strassburger, Strassburger, McKenna, Gutnick & Potter, P.C., Pittsburgh, PA, Counsel for Tribune Review Publishing Co.
David J. Bird, W. Thomas McGough, Jr., Joseph F. Rodkey, Jr., Reed Smith LLP, Pittsburgh, PA, Counsel for PG Publishing Company.
Amy L. Barrette, Jerry S. McDevitt, Jagan N. Ranjan, Mark A. Rush, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Pittsburgh, PA, Richard L. Thornburgh, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Washington, D.C., Counsel for Cyril Wecht.
Rebecca R. Haywood, Office of United States Attorney, Pittsburgh, PA, Counsel for United States of America.
Before: SMITH, FISHER, and VAN ANTWERPEN, Circuit Judges.
SMITH, Circuit Judge.
I.
We issue this opinion in support of our order filed on January 9, 2008 in the matter of United States v. Wecht. WPXI, Inc., PG Publishing Company, doing business as Pittsburgh Post-Gazette, and Tribune-Review Publishing Co. (collectively, the “Media-Intervenors“), filed a motion challenging an order of the United States District Court for the Western District of Pennsylvania announcing jury selection procedures to be used at an impending criminal trial. Specifically, the Media-Intervenors challenged the District Court‘s decisions (1) to empanel an anonymous trial jury, and (2) to conduct voir dire through use of a written questionnaire and without venirepersons physically present in an open courtroom until the pool of prospective jurors was reduced to 40. In our January 9 order, we vacated the District Court‘s order to the extent that it restricts public access to the names of trial jurors or prospective jurors.1 We denied all other relief sought.
On January 20, 2006, a grand jury returned an 84-count indictment against Dr. Cyril H. Wecht. As we noted in deciding an earlier interlocutory appeal in this matter, “[t]he 84-count indictment asserts that [Wecht] unlawfully used his public office as the coroner of Allegheny County, Pennsylvania, for private financial gain.” United States v. Wecht, 484 F.3d 194, 198 (3d Cir.2007). The offenses charged included theft of honest services, mail and wire fraud, and theft from an organization receiving federal funds. The case was assigned to Judge Arthur Schwab of the U.S. District Court for the Western District of Pennsylvania. During a pretrial conference on July 12, 2006, the parties reported to the District Court that they had agreed to use a 24-page questionnaire containing 69 questions in the jury selection process.2
The following day, on July 13, 2006, the Board of Judges for the Western District of Pennsylvania entered an administrative order directing that “all jurors shall be identified in court during the jury selection process by his/her assigned juror number ONLY. A prospective juror shall no longer be identified by or identify himself or herself by name.” In re Jury Administration Procedures, Misc. 06-211 (W.D.Pa. July 13, 2006). The order further provided that “any and all juror lists generated by this Court for use in the jury selection process shall be deemed confidential and property of the Court and shall not be removed from the Court at any time.” Id. The juror lists were available only to counsel who were required to execute a receipt for the list and to return it upon completion of jury selection.
In mid-September, after hearing oral arguments in the first Wecht appeal, this Court granted a stay of the trial pending its resolution of the various appeals. United States v. Wecht, No. 06-3098 (3d Cir. Sept. 15, 2006). As a result, the 300 venire members who had been summoned were released. After we issued our mandate, Judge Schwab entered an order on November 26, 2007, announcing the jury selection procedures he would follow. The order stated in the first paragraph that the “jury will be anonymous.” The Court directed the jury administrator to issue 400 summonses. This time, however, the summons would not be accompanied by the juror questionnaire. Instead, the venire members would be called in groups of sixty to appear in the jury assembly room where they would receive the standard jury orientation and complete the jury questionnaire fashioned for this case. During the afternoon of each session, the jury administrator would provide four copies of the completed jury questionnaire to the District Court. The Court would then provide the questionnaire to counsel to review for the purpose of making challenges for cause and obtaining information for peremptory challenges. The District Court instructed that it would rule on any challenges for cause each afternoon or the following morning. Final selection of the petit jury was tentatively scheduled to begin on January 23, 2008, during which the parties would exercise their peremptory challenges.
Wecht objected inter alia to jury anonymity, the limitation on access to the questionnaires, and the fact that the District Court‘s order did “not indicate whether the voir dire questions will be given to each group in open court or even at all prior to the for cause determinations....” In a subsequent filing, Wecht objected to the removal of the signature page from the jury questionnaire and requested that each prospective juror be subject to voir dire in open court. On December 4, the Media-Intervenors filed a petition with the District Court objecting to the anonymous jury and the lack of in-person, public voir dire in open court.
On December 21, 2007, Judge Schwab issued a 64-page order reviewing the procedural history relative to jury selection and voir dire. Order of Court Re: Jury Selection, Voir Dire, And Other Pretrial Issues, No. 2:06-cr-00026-AJS (W.D.Pa. Dec. 21, 2007) (“Dec. 21 Order“). In this order, Judge Schwab reiterated his earlier
In his December 21 order, Judge Schwab also explained that “[t]he court will be reviewing the Jury Questionnaire in open court at the same time as counsel, so rulings may be made on the record, with media in attendance to hear the reason(s) for each ‘for cause’ dismissal, by juror number.” Dec. 21 Order at 33. The order further noted that “the Court, as it always has done throughout this case, will provide the media access to the Courtroom during the six (6) day initial jury selection process (including all rulings on the record re: ‘for cause’ decisions); and during voir dire process of the pool of 40 jurors using the individual voir dire questions....” Dec. 21 Order at 37.
Judge Schwab explained that “the final jury selection process will commence on January 23, 2008, and copies of the completed Jury Questionnaires of the pool of 40 prospective jurors will be returned only to the counsel, parties, and the Court (with a copy of the last page of the Jury Questionnaire identifying the names and addresses in order by juror number).” Dec. 21 Order at 44. During this final stage of the process, the District Judge noted that he would ask ten voir dire questions of each prospective juror. Dec. 21 Order at 40-41 (listing the questions). The order specified that the Media-Intervenors would, at the conclusion of the trial, be given access to review the jury questionnaire, excluding the last page which contained the juror‘s name and address. Dec. 21 Order at 34-35. The order contains no indication that the Media-Intervenors would be given access to the names or addresses of the prospective and trial jurors at any time before or after Wecht‘s trial.
The Media-Intervenors timely appealed the December 21 order. They moved for summary reversal under Third Circuit Internal Operating Procedure (“I.O.P.“) 10.6 or, in the alternative, for a stay of jury selection. See Media‘s Emergency Motion, United States v. Wecht, No. 07-4767 (3d Cir. Dec. 26, 2007).4 The Government filed a response opposing the motion (Government‘s Response, United States v.
[t]o the extent that the District Court‘s order restricts access of Media Intervenor-Appellants and defense counsel to the names of prospective jurors who participate in the selection process prescribed by the District Court, those provisions of the order are VACATED. We leave to the discretion of the District Court the method and timing of disclosure of juror and prospective jurors’ names, except that disclosure of those names shall be made prior to the swearing and empanelment of that jury.9
Order, United States v. Wecht, No. 07-4767 (3d Cir. Jan. 9, 2008). We denied any other relief relative to the voir dire proceedings. Id. We denied the motion for a stay as moot because our order was issued prior to the commencement of trial. Id.
III.
We have jurisdiction to review the Media-Intervenors’ motion under
In United States v. Schiavo, 504 F.2d 1, 4-5 (3d Cir. 1974) (en banc), we held that a District Court‘s order restricting the media from publishing certain information about a criminal trial was appealable under the collateral order doctrine because it “determined a matter independent of the issues to be resolved in the criminal proceeding itself, bound persons who were non-parties in the underlying criminal proceeding and had a substantial, continuing effect on important rights.” Id. at 4. In United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978) (citing Schiavo, 504 F.2d at 4), we applied Schiavo to permit collateral order jurisdiction over the media‘s challenge to orders excluding the public and the press from a pretrial hearing and sealing the record. The Government has challenged our exercise of jurisdiction, relying in large part on Flanagan, in which the Supreme Court held that we must interpret the requirements of the collateral order doctrine “with the utmost strictness in criminal cases” because of “the compelling interest in prompt trials” and the delays that an appeal is likely to create.11 465 U.S. at 265. Flanagan instructs us to defer appeal until final judgment in a criminal case unless the matter involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” Id. at 266. At the time Flanagan was decided, the Supreme Court had found only three types of pretrial orders to meet the requirements of the collateral order doctrine: (1) an order denying a motion to reduce bail; (2) an order denying a motion to dismiss an indictment on double jeopardy grounds; and (3) an order denying a motion to dismiss an indictment on speech or debate grounds. Id. at 265-66. In Sell v. United States, 539 U.S. 166, 176-77 (2003), the Court recognized that an order to forcibly medicate a defendant during trial also meets the requirements for collateral order jurisdiction. What these orders have in common is that neither an acquittal, a post-trial reversal of a conviction, nor any other result can adequately redress the harm that these orders cause. See Flanagan, 465 U.S. at 266-67. The Supreme Court has not addressed, post-Flanagan, whether a right of access claim raised by a media outlet in a criminal case would satisfy the collateral order doc-
Because Flanagan has its greatest impact on the third requirement of the collateral order doctrine (i.e., that the decision must be “effectively unreviewable on appeal from a final judgment“), we address this requirement first. We conclude that it would be impossible for us to vindicate the public‘s asserted right of access if we foreclosed appeal of this matter until after the final judgment. As with the orders discussed in Flanagan and Sell, the potential harm caused by an improper order restricting the public‘s right of access to a criminal trial is not adequately redressable on appeal after final judgment, regardless of the trial‘s outcome. We have observed in similar cases that “contemporaneous review [of judicial proceedings] by the public ‘is an effective restraint on possible abuse of judicial power.‘” United States v. Smith, 787 F.2d 111, 113 (3d Cir.1986) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596 (1980) (Brennan, J., concurring in the judgment)); see also Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 1991); United States v. Criden, 648 F.2d 814, 821 (3d Cir. 1981). Knowledge of jurors’ identities aids public review by enabling the public to “verify the impartiality of key participants in the administration of justice.” In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir. 1990).
The Government argues that we can fully vindicate any such right via post-trial release of information, allowing us to defer review until the final judgment. Although post-trial release of information may be better than none at all, the value of the right of access would be seriously undermined if it could not be contemporaneous. See, e.g., Grove Fresh Distribs. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (“To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression.“). We do not suggest, of course, that public disclosure of information related to judicial proceedings must always be contemporaneous, given the interests in security and the other grave concerns that might outweigh the right of access in a particular case. Indeed, “stronger reasons to withhold juror names and addresses will often exist during trial than after a verdict is rendered.” Globe Newspaper, 920 F.2d at 91 (emphasis in original). But the value of contemporaneous disclosure, as opposed to post-trial disclosure, is significant enough to justify our immediate review of the matter under the collateral order doctrine. Accordingly, we decline to hold that Flanagan undermines
We turn now to the other requirements for application of the collateral order doctrine. The first requirement is that the order must “conclusively determine the disputed question.” Coopers & Lybrand, 437 U.S. at 468. We cannot review any decision that is “tentative, informal or incomplete.” Cohen, 337 U.S. at 546. The District Court‘s December 21, 2007 order is a conclusive determination that the names of prospective jurors will not be available to the Media-Intervenors at any time before or after the trial and that voir dire will be conducted by written questionnaire until the pool of jurors is reduced to forty.13 We reach this conclusion based on the fact that the 64-page order explicitly considers and rejects the Media-Intervenors’ objections to this procedure. There is no reason to believe that any subsequent developments would have led the District Court to reconsider its conclusion.14 The Government does not dispute that the District Court‘s order conclusively determined the question.15 See Government‘s Response at 8-9 (“the order regarding jury selection procedures may satisfy the first requirement of the collateral order doctrine, i.e., conclusively determining the disputed question ...“). Accordingly, we conclude that the District Court‘s order satisfies the first requirement of the collateral order doctrine.
The second requirement is that the order “resolve an important issue completely separate from the merits of the action.” Coopers & Lybrand, 437 U.S. at 468. This is sometimes divided into two sub-requirements: (a) the issue must be important; and (b) the issue must be completely separate from the merits of the action. The Supreme Court has defined an important issue as one involving interests that are “weightier than the societal interests advanced by the ordinary operation of final judgment principles,” Digital Equip. Corp. v. Desktop Direct, 511 U.S. 863, 879 (1994), or one that is “serious and unsettled,” Cohen, 337 U.S. at 547.
The issue is also completely separate from the merits of the action, i.e., Wecht‘s guilt or innocence. We have repeatedly held that orders restricting public access to information are separate from the underlying issues in criminal trials. See, e.g., Cianfrani, 573 F.2d at 841 (concluding that the media‘s appeal of an order barring the public from a pretrial suppression hearing and sealing the record of that hearing was separate from the merits of the underlying criminal proceeding); Schiavo, 504 F.2d at 5 (concluding that an order purporting to enjoin newspapers from publishing information “determined a matter independent of the issues to be resolved in the criminal proceeding itself“). The Government objects that the anonymity of the jury is “intimately tied to the merits” because “the jury is the entity that will decide the ultimate issues of guilt or innocence in this case.” Government‘s Response at 9. But the relevant question is whether the issues presented in the Media-Intervenors’ right of access claim are tied to Wecht‘s guilt or innocence, not whether the appealed issue and the merits involve the same “entity.” In Sell v. United States, the Supreme Court found that the issue of whether the defendant must be forcibly medicated in order to stand trial was separate from the merits, even though the District Court had found that the medication served “the government‘s compelling interest in obtaining an adjudication of defendant‘s guilt or innocence.” 539 U.S. at 174-76; see also 539 U.S. at 192 (Scalia, J., dissenting) (agreeing that the medication order resolved “an important issue separate from the merits” despite concluding that the order did not satisfy the third prong). Similarly, in this case, the District Judge may have believed that establishing jury anonymity would aid the determination of
The Government presents two additional challenges to our ability to hear this appeal. First, the Government argues that the media lacks standing because it “does not have a public right of access under the First Amendment or the common law to the jurors’ names and/or the jurors’ questionnaires” and thus suffered no “injury in fact.” Government‘s Response at 11-12. Because we conclude that the Media-Intervenors have a right to the jurors’ names, for the reasons discussed below, we reject this argument and conclude that the Media-Intervenors have standing.19 The Media-Intervenors do not have standing, however, to challenge directly the constitutionality of the Board of Judges’ order (Misc.06-211), because the District Court did not rely on this as a basis for its decision.20 See Dec. 21 Order at 18 n. 4. Second, the Government argues that as a prudential matter, we should dismiss the Media-Intervenors’ appeal as untimely because they did not appeal until December 2007, shortly before trial was scheduled to begin in January 2008. Government‘s Response at 12-13. The Government asserts that the District Court had made its intention to establish an anonymous jury clear in July 2006, one-and-a-half years before the Media-Intervenors appealed. The Media-Intervenors respond that the July 2006 order did not clearly establish that the jury would be anonymous, and in any event was not a final order since it explicit-
IV.
The Media-Intervenors seek reversal of the order because it requires that the prospective and trial jurors be anonymous and because it creates a voir dire process that relies solely on written questionnaires without jurors being physically present in the courtroom prior to redaction of the venire to a pool of forty. Because they rely primarily on arguments that the First Amendment creates a right of access that requires disclosure of jurors’ names and the conducting of voir dire in open court,21 we briefly review the right of access jurisprudence of the Supreme Court and our court.
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court22 held that “the right to attend criminal trials is implicit in the guarantees of the First Amendment” because “without the
freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated.‘” 448 U.S. at 580 (quoting Branzburg v. Hayes, 408 U.S. 665, 681 (1972)). The Court said that this right encompassed both a “right of access” and a “right to gather information,” and that the media‘s right is no less important than that of the general public. Id. at 576-77 & n. 12. In Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise I“), the Supreme Court held that this right of access and to gather information applies to voir dire in criminal trials as well. 464 U.S. at 508. The Court explained that “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest” and that “[t]he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” 464 U.S. at 510.
To determine what aspects of a criminal trial are subject to a presumptive right of public access under the First Amendment, the Court created the “expe-
Whether there is a First Amendment right to have access to a particular aspect of a judicial proceeding is a question of law that we review de novo. See United States v. Antar, 38 F.3d 1348, 1356-57 (3d Cir. 1994). Outside of the First Amendment context, we use an abuse of discretion standard to review a District Court‘s decisions regarding jury anonymity, United States v. Scarfo, 850 F.2d 1015, 1023 (3d Cir. 1988), and its conduct of voir dire, Butler v. City of Camden, 352 F.3d 811, 815 (3d Cir. 2003).23 To the extent that we consider whether the District Court has articulated findings sufficient to overcome a presumptive right of access under the First Amendment, however, we conduct “substantially broader” review that “includes independent consideration of the district court‘s order and the factual findings inferred from the evidence before it.” In re Capital Cities/ABC, Inc.‘s, 913 F.2d 89, 92 (3d Cir. 1990) (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 499 (1984); New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)); see also Antar, 38 F.3d at 1357; United States v. Smith, 787 F.2d 111, 113 n. 1 (3d Cir. 1986).
V.
The Media-Intervenors argue that the First Amendment requires disclosure of the jurors’ names prior to empanelment of the jury in this case. This question is one of first impression in our circuit.24
A.
The first question before us is whether the “experience and logic” test establishes the existence of a presumptive First Amendment right of access to obtain the names of both trial jurors and prospective jurors prior to empanelment of the jury. We conclude that it does.
1. Experience
In Press-Enterprise I, the Supreme Court traced the development of the jury selection process from the days “before the Norman Conquest,” and concluded that “since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown.” 464 U.S. at 505-08. Although this historical evidence helps to show that voir dire is traditionally a public process, it does not necessarily establish that the jurors’ names were also known to the public. The Media-Intervenors point out that “there is no suggestion in ... Press-Enterprise I that the names of the jurors were not equally open to the public as the other parts of the voir dire process.” Media‘s Emergency Motion at 11-12. This is true, but the opinion contains no suggestion to the contrary, and we are reluctant to draw conclusions solely based on the Court‘s silence about a question that was not before it.
Because juries have historically been selected from local populations in which most people have known each other, however, the traditional public nature of voir dire strongly suggests that jurors’ identities were public as well. Case law and legal commentary confirm this suggestion. See In Re Baltimore Sun Co., 841 F.2d at 74, 75 (“When the jury system grew up with juries of the vicinage, everybody knew everybody on the jury ...,” so requiring the public disclosure of the names of trial and prospective jurors upon empanelment is “no more than an application of what has always been the law....“)25; David Weinstein, Protecting A Juror‘s Right to Privacy: Constitutional Constraints and Policy Options, 70 TEMP. L.REV. 1, 30 (1997) (“The names of jurors have been available to the public throughout the history of the common law.... Moreover, the records of early jury trials evince little concern for protect-
The Government‘s strongest argument that there is no such tradition of openness is based on
fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.
We are reluctant to afford the relevant language of the statute significant weight in this context. Nothing in the statute itself indicates whether Congress believed that allowing federal courts to withhold juror names was consistent with historical practice or a significant departure. The House Report is more explicit on this point, stating that the statute was merely intended to preserve the “diversity of practice” that existed in federal courts as of 1968. But the House Report is not an official expression of Congress‘s views, and its persuasive value is limited because it provides no evidence to support its claim that such a “diversity of practice” existed at the time. Moreover, even if the House Report accurately characterizes the practices of federal district courts in 1968, it is nonetheless consistent with the proposition that withholding the names of jurors is a relatively recent phenomenon. Given the Supreme Court‘s suggestion that a proper analysis of “experience” will evaluate trial practices as they have developed over the past millennium in courts at all levels, see Press-Enterprise II, 478 U.S. at 8, we cannot discern whether jurors’ names have traditionally been public based on an assertion in legislative history forty years ago that some degree of “diversity of practice” existed in the federal system.
The reports published in 1968 and 1980 by the Committee on the Operation of the Jury System of the Judicial Conference of the United States are not to the contrary. See Report of the Committee on the Operation of the Jury System on the “Free Press-Fair Trial” Issue, reprinted in 45 F.R.D. 391 (1968); Revised Report of the Judicial Conference Committee on the Operation of the Jury System on the “Free Press-Fair Trial” Issue, reprinted in 87 F.R.D. 519 (1980). Both of the Committee‘s reports recommend that District Courts adopt a rule that allows judges, “in a case which is likely to attract unusual publicity,” to issue a “special order” that “might be addressed” to a variety of subjects, including a direction that “the names and addresses of jurors or prospective jurors not be publicly released except as required by statute.”28 45 F.R.D. at 409-11, 87 F.R.D. at 529-31. We do not dispute that a trial judge has historically had the power to issue such an order in special cases. We conclude only that a tradition of openness exists and that anonymous juries have been the rare exception rather than the norm.
In short, we believe that the “experience” prong of the Press-Enterprise II test favors a conclusion that jurors’ names have traditionally been available to the public prior to the beginning of trial. If any significant evidence to the contrary exists, we have not discovered it in our review of case law and commentary on this question.
We next consider whether presumptive public access to jurors’ names prior to empanelment “plays a significant positive role in the functioning” of the criminal justice system. See Press-Enterprise II, 478 U.S. at 8. As the First Circuit explained in In re Globe Newspaper Co., the purposes served by the openness of trials and voir dire generally are also served by public access to the jurors’ names:
Knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness and public confidence in that system. It is possible, for example, that suspicions might arise in a particular trial (or in a series of trials) that jurors were selected from only a narrow social group, or from persons with certain political affiliations, or from persons associated with organized crime groups. It would be more difficult to inquire into such matters, and those suspicions would seem in any event more real to the public, if names and addresses were kept secret. Furthermore, information about jurors, obtained from the jurors themselves or otherwise, serves to educate the public regarding the judicial system and can be important to public debate about its strengths, flaws and means to improve it.... Juror bias or confusion might be uncovered, and jurors’ understanding and response to judicial proceedings could be investigated. Public knowledge of juror identities could also deter intentional misrepresentation at voir dire.
920 F.2d at 94. Public access to jurors’ names is not without risks. First, when the names of jurors are public, friends or enemies of a criminal defendant may find it easier to influence the jury‘s decision. In an extreme case, this could take the form of threats to the jurors or their family members. Second, if jurors know that the media will attempt to contact them or their families, they may resist serving on high-profile cases at all because they fear that their privacy will be threatened. Third, public knowledge of jurors’ identities might actually increase the risk of misrepresentation at voir dire, because some jurors will be tempted to lie in order to avoid the disclosure of embarrassing information.29
Despite these risks, we believe that the judicial system benefits from a presumption of public access to jurors’ names. A criminal jury trial vests twelve randomly-selected citizens with the power to decide the fate of someone who the state has targeted for prosecution. We cannot reconcile the Supreme Court‘s conclusion that the public has the right to see the process in which this power is exercised (Richmond Newspapers) and to see the process that selects those who will exercise the power (Press Enterprise I), with the conclusion that the public has no right to know who ultimately exercises this power. As the First Circuit said, “the prospect of criminal justice being routinely meted out by unknown persons does not comport with democratic values of accountability and openness.” Globe Newspaper, 920
Finally, we believe that this presumptive First Amendment right of access to the identities of jurors attaches no later than the swearing and empanelment of the jury. Corruption and bias in a jury should be rooted out before a defendant has to run the gauntlet of trial. Public knowledge of the jurors’ identities is desirable in part because it can deter such corruption and bias. The value of any right of access, then, can only be diminished after trial has begun, and diminished even further once a verdict has been rendered by a corrupt or biased jury.31 We acknowledge that, in the words of the First Circuit, “stronger reasons to withhold juror names and addresses will often exist during trial than after a verdict is rendered.” Globe Newspaper, 920 F.2d at 91 (emphasis in original). But we do not believe that these reasons are so compelling that they negate altogether the existence of a First Amendment right of access to the names during trial. Rather, a presumption of openness exists at the latest at the time of the swearing and empanelment of the jury, regardless of the fact that a judge may find “stronger reasons” for overcoming this presumption during trial.
B.
We now consider whether the District Court articulated the necessary findings and consideration of alternatives to overcome the presumption that the jurors’ names should be publicly available. It provided three reasons for exercising its
First, the District Court said that withholding the jurors’ names is necessary to prevent the media from publishing stories about them:
First, from the prospective [sic] of the media, because the media requests the names and addresses of the potential jurors, if those requests were granted, there is certainly a real potential that the media would use those names (and addresses) to develop and publish stories about the prospective jurors, coupled with possible interviews of the potential jurors’ family members, coworkers, and friends. The media obviously does not want the jurors’ names as an intellectual exercise to file in some reporter‘s electronic desk drawer. If they want the names, they want to do “reporting.” If the numerous excellent “investigatory” reporters in Western Pennsylvania obtain the names and home address of the jurors, detailed “background” stories, before and during the trial, are likely. The Court thus has serious concerns that the dissemination of stories about the prospective jurors (and especially the empaneled jury) would have a real impact on the jurors’ willingness to serve and, if selected, on the jurors’ abilities to remain fair, unbiased, and focused on this case.
Dec. 21 Order at 28-29. The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors’ names from the public. Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process.33 The participation of jurors “in publicized trials may sometimes force them into the limelight against their wishes,” but “[w]e cannot accept the mere generalized privacy concerns of jurors” as a sufficient reason to conceal their identities in every high-profile case. See Globe Newspaper, 920 F.2d at 98. The District Court has not established that there is anything unusual about this case, aside from a locally prominent defendant, that makes the prospective jurors’ hypothetical privacy concerns more compelling than usual. The District Court‘s statements amount to the sort of “conclusory and generic” finding that we have held to be insufficient to overcome the presumption of openness.34 See Antar, 38 F.3d at 1363.
Second, the District Court cited the possibility that friends or enemies of Wecht would attempt to influence the jurors:
Secondly, from the perspective of the defendant, if there is media coverage disseminating the names (and addresses) of the prospective jurors, that coverage would undoubtedly increase the risk of intimidation of those jurors as there is a probability that other individuals (not
including the defendant himself) would contact those jurors in an attempt to either hurt or bolster defendant‘s case. Just like the district court in the Scarfo case had concerns that persons hostile to defendant might have been inclined to harass the jurors, this Court also has real concerns that persons who are either hostile to, or enamored with, defendant would attempt to influence the jurors.
Dec. 21 Order at 29. This explanation is insufficient to justify withholding the names in this case. Again, this is a “conclusory and generic” finding that cannot overcome the presumption that jurors’ names are public information. In fact, the District Court‘s reasoning would justify anonymity in virtually every jury trial, whether or not it attracts media attention, since almost all defendants have friends and enemies who might be inclined to influence jurors. The District Court‘s citation to United States v. Scarfo, 850 F.2d 1015 (3d Cir.1988), is revealing. In Scarfo, we noted that the defendant belonged to an “organized crime group,” had ordered “several murders” (including those of a judge and a prospective witness), and had attempted to bribe judges. Id. at 1017. In short, specific reasons existed in Scarfo to believe that friends of the defendant would threaten or bribe the jurors. The District Court in this case has not provided anything closely resembling the specific reasons offered in Scarfo.35
Finally, the District Court quoted extensively from a document that Wecht filed that purports to establish that he has acquired many enemies. This document points out that Wecht “has made countless cause and manner-of-death determinations” as a witness in “hundreds of homicide and other criminal trials,” some of which involve “the most serious offenders of society—violent criminals,” and that he remains a witness in “pending criminal homicide trials.” Dec. 21 Order at 29 (quoting Defendant‘s Brief in Support of Motion For Clarification And/Or Modification of Trial Procedures and Scope of Exhibit and In Limine Rulings at 5, United States v. Wecht, No. 2:06-cr-00026-AJS (W.D.Pa. Dec. 4, 2007) (“Defendant‘s Brief“)). In addition, the document says, he has participated in “high-profile” civil cases, including wrongful death actions. Id. at 30 (quoting Defendant‘s Brief at 6). As a result, many people “may harbor ill will” or “bear animus” toward Wecht. Id. (citing Defendant‘s Brief at 5-6). Moreover, the document says that Wecht‘s son, as a “sitting family court judge in Allegheny County [,] makes judicial decisions that affect people in the most emotional and passionate areas of their lives,” and that some of these people “may feel wronged as a result of his judicial decisions.” Id. The document points out that “[t]hose individuals may find their way into Dr. Wecht‘s pool of jurors.” Id.
The District Court cited the statements in this document to support its conclusion that, unless the jury is anonymous, Wecht‘s many enemies might attempt to
VI.
The Media-Intervenors also challenge the voir dire procedure adopted by the District Court. They contend that by using Juror Questionnaires instead of in-court voir dire to make “for cause” determinations until the venire has been reduced to forty prospective jurors, the District Court violates their First Amendment right of access to voir dire proceedings.37 They do not request immediate access to the actual questionnaires but instead demand that the District Court conduct voir dire in open court in addition to using the questionnaires. Media‘s Emergency Motion at 4 n. 1. According to the Media-Intervenors, they seek in-court voir dire in order to allow public access to “information traditionally revealed during voir dire (juror names, area where a juror lives, employment, family, etc.).” Id. at 16.
We reject the Media-Intervenors’ request for two related reasons. First, unlike the Media-Intervenors’ request for the names of prospective jurors, the request for in-court voir dire is not merely a request for access to information, but a request that the District Court conduct a specific procedure and that the Media-Intervenors have access to that procedure. It is well-established that “the method of conducting the voir dire is left to the sound discretion of the district court.” Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir.1993). In a voir dire process involving 400 prospective jurors, we believe that a trial judge has discretion to conduct part of the process exclusively based on written questionnaires, so long as it is consistent with established procedural
VII.
In sum, we have articulated in this opinion the reasons supporting our January 9 Order vacating the provisions of the District Court‘s order that restricted access of Media-Intervenors and defense counsel38 to the jurors’ names.
VAN ANTWERPEN, Circuit Judge, concurring in part and dissenting in part.
Although I seldom find it necessary to dissent, I write separately today because the Majority‘s opinion ignores a substantial volume of case law, statutes passed by Congress, and the established practices of many of this country‘s courts. Today‘s opinion will undoubtedly cause significant problems and delays in our district courts if the Majority‘s expansion of the collateral order doctrine and its announcement of a new constitutional right are permitted to stand.
I dissent from the Majority‘s holding that this Court has jurisdiction at this time to entertain the Media-Intervenors’ motion and that the Media-Intervenors are entitled, as a matter of constitutional right, to the names of all of the prospective and trial jurors prior to the empanelment of the trial jury.39 Additionally, I disagree with the remedy fashioned by the Majority, as in my opinion it amounts to impermissible micro-management of procedures and decisions that are properly delegated to the discretion of district judges.40
I.
According to the Majority, this Court has jurisdiction over the Media-Intervenors’ motion by virtue of the collateral
A.
Collateral orders, those orders that “finally determine claims of right separable from, and collateral to, rights asserted in the action,” are a narrow exception to the rule of finality,41 and are thus reviewable on an interlocutory basis. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see also Bines v. Kulaylat, 215 F.3d 381, 384 (3d Cir.2000). This Court considers a district court‘s decision to be a reviewable collateral order if it meets all of the criteria set forth by the Supreme Court: (1) the order must “conclusively determine the disputed question;” (2) the order must “resolve an important issue completely separate from the merits of the action;” and (3) the order must “be effectively unreviewable on appeal from a final judgment.” See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); see also Youngblood v. DeWeese, 352 F.3d 836, 838 n. 1 (3d Cir.2003).
As both the Supreme Court and this Court have emphasized on numerous occasions, the collateral order doctrine should be construed narrowly, lest this exception to the final judgment rule swallow the rule itself. See, e.g., Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (describing the collateral order doctrine as “narrow” and “stringent“); We, Inc. v. City of Philadelphia, 174 F.3d 322, 324 (3d Cir.1999) (“We have followed [the Supreme Court‘s] admonition and consistently construed the collateral order exception narrowly....“).42 In defining what orders fall within the narrow scope of the collateral order doctrine, the Supreme Court noted that the collateral order doctrine‘s “reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal.” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430-31 (1985).
In criminal cases, this Court must be even more vigilant in ensuring that the collateral order exception is construed narrowly, as we have been cautioned by the Supreme Court to apply the collateral order exception “with the utmost strictness” in such cases. See Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989); Flanagan v. United States, 465 U.S. 259, 265 (1984). Such a strict construction is necessary to avoid delays due to piecemeal appellate
B.
In light of this Court‘s practice of construing the collateral order doctrine narrowly, the appeal of the District Court‘s December 21, 2007 order (“December 21 Order“), which set forth the procedures for selecting the jury, is not one of the “rare” circumstances in which this Court should grant interlocutory review. Appellate review is not justified at this time because the District Court‘s order does not satisfy either the first or the third prong of the Coopers & Lybrand test.43 See We, 174 F.3d at 324 (“If the order at issue fails to satisfy any one of [the Coopers & Lybrand] requirements, it is not an appealable collateral order.“).
1.
The first prong of the Coopers & Lybrand test requires that the order at issue “conclusively determine the disputed question.” See Coopers & Lybrand, 437 U.S. at 468. As the Majority correctly notes, this prong of the test is akin to the requirement that the order being appealed be a final order; we will not review an order that is “tentative, informal or incomplete.” See Cohen, 337 U.S. at 546. The District Court‘s December 21 Order sets forth what it considered to be the finalized procedures for selecting the jury. Although the December 21 Order purports to be a “final order” on the issue of jury selection, it was only one step in a process of modifications and could have been further modified by the District Court up until the time the procedures were actually implemented. Such modifications of trial procedures are clearly within the ample discretion of the District Court. See, e.g., Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir.1993) (noting that “the method of conducting the voir dire is left to the sound discretion of the district court,” and that “[b]ecause voir dire determinations ‘rely largely on immediate perceptions,’ district courts have been awarded ample discretion in determining how best to conduct the voir dire“). Thus, the December 21 Order did not become a “final order” for the purposes of our review until the process set forth in the Order was actually implemented.44
Although the Majority suggests that the record does not reveal any evidence that the District Court contemplated modifying the Order between December 21 and the beginning of jury selection, the record is replete with evidence that the District Court had previously been more than accommodating in developing and modifying the procedures for jury selection from the time it first announced those procedures on July 14, 2006.45 Because the District Court worked with the parties to develop the jury selection procedures, and because the District Court had significant discretion to modify the order prior to jury selection, it is not reasonable to presume that the December 21 Order was the final word on jury selection. If anything, the record indicates that had the Media-Intervenors or the defendant first attempted to seek relief from the District Court, they may well have been successful. Additionally, if the Media-Intervenors or the defendant had petitioned the District Court for modification of the December 21 Order, instead of immediately coming to this Court for relief, there would at least be some evidence on the record as to the District Court‘s inclination to modify the
Because the Media-Intervenors have not met their burden of demonstrating that the December 21 Order “conclusively determined” the procedures for selecting the jury,47 they cannot satisfy the first prong of the Coopers & Lybrand test at this time. Accordingly, this Court does not presently have jurisdiction to entertain the Media-Intervenors’ motion.
2.
As to the third prong of the Coopers & Lybrand test, that the right at issue be effectively unreviewable upon appeal, the Majority holds that it would be “impossible” to vindicate the public‘s right of access to the proceedings. See Maj. Op., supra, at 229. The Majority holds that “the potential harm caused by an improper order restricting the public‘s right to access to a criminal trial is not adequately redressable on appeal after final judgment, regardless of the trial‘s outcome.” See id. As discussed further in Part II, infra, the Majority characterizes the right at issue in this appeal too broadly when it suggests this case is about the right to access the proceedings in general. What is at issue here is the right to know the names of the prospective and trial jurors prior to the time the jury is empaneled. The District Court‘s December 21 Order already gives the Media-Intervenors access to all other parts of the jury selection process. From the standpoint of jurisdiction, neither the Media-Intervenors nor the Majority today have explained why the public‘s interest in determining “the impartiality of key participants in the administration of justice” would be impossible to satisfy were all the
As the Supreme Court has noted, the rights that are generally appealable on an interlocutory basis in criminal matters are those rights “the legal and practical value of which would be destroyed if [they] were not vindicated before trial.” See MacDonald, 435 U.S. at 860 (emphasis added). Such rights must be so important that they would be “‘lost, probably irreparably,’ if review had to await final judgment.” See Abney v. United States, 431 U.S. 651, 658 (1977) (quoting Cohen, 337 U.S. at 546) (emphasis added); see also Flanagan, 465 U.S. at 265 (“The importance of the final judgment rule has led the Court to permit departures from the rule ‘only when observance of it would practically defeat the right to any review at all.’ “). The mere fact that contemporaneous disclosure of the names of the prospective and trial jurors would be more convenient for the Media-Intervenors does not, by itself, elevate the right to know and force the disclosure of the names of the prospective and trial jurors to such a level that the right would be destroyed or irrelevant after the trial is complete.
The issue is not, as the Majority repeatedly suggests, about the “value” of the right to know the names of the prospective and trial jurors48 or whether that right would be “seriously undermined.”49 See Maj. Op., supra, at 229. Nor has the District Court here barred the courtroom doors to the Media-Intervenors or sealed transcripts of court proceedings, as was the situation in many of the right-of-access cases cited in the Majority‘s opinion. See, e.g., Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 503-04 (1984) (“Press-Enterprise I“); Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 598-99 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 559-61 (1980); ABC, Inc. v. Stewart, 360 F.3d 90, 93 (2d Cir.2004); United States v. Antar, 38 F.3d 1348, 1350-51 (3d Cir.1994). The only question underlying our ability to exercise
The Majority relies in part on Sell v. United States and Flanagan v. United States in holding that the right at issue in this case is reviewable on an interlocutory basis. Both of these cases are distinguishable, however. In Sell, the defendant sought interlocutory appeal of an order requiring that he be forcibly medicated in order to stand trial. See Sell v. United States, 539 U.S. 166, 171-75 (2003). Upon review of this order, the Supreme Court held that were the Court to wait to review Sell‘s appeal of the order requiring forcible administration of the anti-psychotic drugs until after the trial, it would be impossible to vindicate Sell‘s right to not be forcibly medicated in order to stand trial. See id. at 176-77 (“By the time of trial Sell will have undergone forced medication—the very harm that he seeks to avoid. He cannot undo that harm even if he is acquitted. Indeed, if he is acquitted, there will be no appeal through which he might obtain review.“). Accordingly, the Supreme Court held that Sell‘s appeal was permissible as an interlocutory matter. See id. at 177. In Flanagan, the issue before the Supreme Court was whether an order disqualifying the defendants’ counsel was appealable as a collateral order. See Flanagan, 465 U.S. at 261-63. The Supreme Court held that it was not, as post-conviction review of the alleged deprivation of the defendants’ right to choose their own counsel was effective in ensuring that their rights were not violated.50 See id. at 266-68. In its opinion, the Supreme Court recited the very limited number of orders that are reviewable as interlocutory appeals in criminal cases: an order denying a motion to reduce bail, an order denying a motion to dismiss an indictment on double jeopardy grounds, and an order refusing to dismiss an indictment for violation of the Speech and Debate Clause. See id. at 266; see also Maj. Op., supra, at 228.
Neither the order at issue in Sell nor the various orders listed in Flanagan as reviewable are similar to the order at issue in the instant case. In Sell, once the defendant was medicated, his ability to prosecute his appeal was lost, as there was no remedy a court could give him once the medication order was carried out. Similarly, as the Supreme Court noted in Flanagan, once a duplicitous prosecution of a defendant begins, the right to be protected from being twice put in jeopardy is useless. In contrast, the Media-Intervenors do not lose the right to know the names of the jurors once the trial begins, nor does
Because the Media-Intervenors’ interest in knowing the names of the prospective and trial jurors is not destroyed by the commencement of jury selection and the trial, the Media-Intervenors’ appeal fails to satisfy the third prong of the Coopers & Lybrand test, and we are therefore without jurisdiction to hear this appeal.53
D.
The Majority today errs in holding that we have jurisdiction over the Media-Intervenors’ appeal. The order contested by the Media-Intervenors is not a final order that conclusively resolves the jury selection issue, nor is the public‘s right to know the names of the prospective or trial jurors destroyed by the commencement of the trial. Although the Majority is correct that some right of access claims54 are only effectively enforced contemporaneously, the Majority is incorrect in holding that the media‘s interest in knowing the names of prospective or trial jurors is reviewable
II.
Assuming arguendo that we have jurisdiction over this matter on an interlocutory basis, the Majority errs in holding that the First Amendment requires the District Court to disclose the identities of the prospective and trial jurors to the Media-Intervenors prior to the empanelment of the trial jury. It is well-established that the First Amendment protects the right of the public, and the media as its proxy, to have access to criminal proceedings and to gather information. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576-77 (1980). As the Majority correctly notes, this right protects public and media access to numerous facets of the trial process, including voir dire. See Maj. Op., supra, at 233 (citing Press-Enterprise I, 464 U.S. at 508). The question presented in this appeal is not whether the media has a right of access to Dr. Wecht‘s voir dire proceedings, however. The question is far more narrow: whether the First Amendment right of access necessarily includes a constitutional right to know the names of prospective and trial jurors prior to the empanelment of the trial jury. The Majority concludes that the right of access includes a constitutional right to know the identities of all jurors, which in turn requires disclosure by the District Court before the trial begins.
The Majority is incorrect that “access” necessarily includes the identities of the prospective and trial jurors. Additionally, the First Amendment does not require disclosure of the names to the media prior to the empanelment of the trial jury.
A.
The Majority employs the “experience and logic” test set forth in Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8-9 (1986) (“Press-Enterprise II“), to determine whether the Media-Intervenors are entitled, as a matter of constitutional right, to force the District Court to divulge the names of the prospective and trial jurors prior to the empanelment of the trial jury. The Majority incorrectly concludes that this two-prong test requires disclosure, as the Press-Enterprise II test does not yield such an entitlement.
1.
The first part of the Press-Enterprise II test, the “experience” prong, requires an examination of “whether the place and process have historically been open to the press and general public.” See Press-Enterprise II, 478 U.S. at 8 (emphasis added). According to the Majority, the public has historically had a right to know the names of prospective
A review of the case law, legislation, and local court procedures of the courts in our Circuit and that of a variety of other jurisdictions reveals that the “right” to know the names of the jurors is not, as the Majority suggests, clearly defined. If anything, a more thorough review of historical and modern jury practices suggests that the “experience” is one of giving discretion to district judges over the conduct of voir dire, including the discretionary ability to withhold the names of prospective and trial jurors.
2.
In 1968, following the Supreme Court‘s decision in Sheppard v. Maxwell, 384 U.S. 333 (1966),57 Congress passed a law addressing the concerns raised by the Supreme Court about the pervasive nature of modern media cov-
The jury selection procedures employed by various jurisdictions in implementing
ii.
In addition to the plans developed by the courts in this Circuit and those of other jurisdictions, all of which codify a practice of giving the trial court judge discretion whether and when to release the
In 1976, the Judicial Conference authorized the Committee to review the 1968 Free Press-Fair Trial Guidelines and determine whether any amendments were necessary.58 See Revised Report of the Judicial Conference Committee on the Op-
iii.
Various decisions of courts from a variety of jurisdictions, including many of the cases cited by the Majority, have also suggested that keeping the names of prospective and trial jurors confidential is a viable option for dealing with potentially prejudicial media exposure. See, e.g., Press-Enterprise I, 464 U.S. at 512 (“Even then a valid privacy right may rise to a level that part of the transcript [of the voir dire proceedings] should be sealed, or the name of a juror withheld, to protect the person from embarrassment.“) (emphasis added); Stewart, 360 F.3d at 104-05 (“First, we do not see why simply concealing the identities of the prospective jurors would not have been sufficient.... Here, partial closure was an available and an effective means of ensuring the candor of prospective jurors.“); Gannett Co., Inc. v. State of Delaware, 571 A.2d 735, 751 (Del. 1989); see also Hamer v. United States, 259 F.2d 274 (9th Cir.1958) (upholding trial court‘s refusal to release the names of jurors to anyone, including the defendant, against the defendant‘s Sixth Amendment challenge). Moreover, numerous courts have used or upheld the use of anonymous juries or anonymous voir dire in cases where media exposure or other prejudicial influences might be a problem. See United States v. Brown, 250 F.3d 907, 916-17 (5th Cir.2001) (upholding refusal to grant post-trial access to juror identities and noting that an anonymous jury is preferable to sequestration because “[a]nonymity protects, in addition to the jurors, the venire persons and the jurors’ families from influence exerted by outside parties“); United States v. Branch, 91 F.3d 699, 724 (5th Cir.1996); United States v. Wong, 40 F.3d 1347, 1377 (2d Cir.1994) (noting that the “prospect of publicity militates in favor of jury anonymity to prevent exposure of the jurors to intimidation or harassment“); United States v. Scarfo, 850 F.2d 1015, 1023 (3d Cir.1988); United States v. Black, 483 F.Supp.2d 618, 623-26 (N.D.Ill.2007) (refusing to release names of empaneled jurors to the media); United States v. Doherty, 675 F.Supp. 719 (D.Mass.1987) (releasing names and addresses of jurors seven days after the conclusion of the trial). Courts have also suggested that the media‘s request to know the identities of the prospective and trial jurors can be adequately satisfied by post-trial release of the transcripts of the voir dire proceedings, thus suggesting pre-trial disclosure is not mandatory. See, e.g., Press-Enterprise I, 464 U.S. at 512 (“When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror‘s valid privacy interests.“); In re Globe Newspaper, 920 F.2d at 91-93, 98 (permitting juror identities to be withheld prior to trial but ordering post-trial release in light of district court‘s failure to adequately justify decision to withhold).
iv.
The nature of trial practice has undoubtedly changed over the last few decades, let alone the last millennium.60 In particular, the presence of the media, and its increased role as the surrogate of the public‘s interest in ensuring the justice system functions in a fair and effective way, has presented courts with new challenges as they attempt to balance the interests of the media, the public, the defendant, the Government, the jury, and the courts. See Sheppard, 384 U.S. at 362 (discussing the “pervasiveness” of the modern media). Given the increased media presence and role in judicial proceedings, the collective experience of courts over the last few decades in managing
Despite its admonition that any analysis of the “experience” prong of Press-Enterprise II must necessarily include the experience as it has developed over the last millennium,62 the Majority largely ignores the last half-century of this millennium. The experience over the past half-century, in the context of media outlets that gather information and report twenty-four hours a day, seven days a week, has largely been one of granting increased discretion to district courts in the management of their trial procedures, not one of forcing complete openness. I believe that the courts’ collective experience over the last half-century is highly persuasive, especially in light of the increased presence of the media and the facts of this case. This experience is not, as the Majority suggests, somehow less persuasive. Accordingly, a properly-conducted analysis of the “experience” prong does not result in a finding that the names of jurors were historically known to the public, and by extension the media, as a matter of right.
2.
The “logic” prong of the Press-Enterprise II test requires courts to evaluate whether “public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8. The Majority holds that logic dictates that knowing the names of the jurors prior to the
The purpose of the “logic” prong is to determine whether “the historical practice play[s] ‘an essential role’ in the proper functioning of government ... since otherwise the most trivial and unimportant historical practices ... would be chiselled in constitutional stone.” See In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C.Cir.1985). Indeed, not every historical practice that plays a positive role in the judicial process is considered a constitutional right. As the Supreme Court has noted, the logic test allows courts to “distinguish between what the Constitution permits and what it requires.” Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 385 (1979). Put another way, the question is whether announcing the names of the jurors prior to empanelment is significantly important to the public‘s ability to oversee the jury selection process and to ensure the judicial system functions fairly and effectively. See also In re Reporters, 773 F.2d at 1332 (noting that the process in question must play “an essential role“).
In determining whether a claim of access satisfies the “logic” test, this Court has set forth a number of factors to consider. These factors include:
[P]romotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system; promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings; providing a significant community therapeutic value as an outlet for community concern, hostility, and emotion; serving as a check on corrupt practices by exposing the judicial process to public scrutiny; enhancement of the performance of all involved; and discouragement of perjury.
United States v. Smith, 123 F.3d 140, 146-47 (3d Cir.1997). As has been noted above, the question in this case is not whether the media has a right to access the voir dire proceedings; that right has been clearly established in the case law. The actual question presented to us is whether the media is entitled as a matter of constitutional right to know the names of both the prospective and trial jurors prior to the empanelment of the trial jury. A review of the Media-Intervenors’ demand under the Smith factors does not support the conclusion that knowing juror names prior to their empanelment is included in the right of access protected by the First Amendment.
Neither the Majority nor the Media-Intervenors explains why informed discussion or understanding of the judicial process can only take place pre-trial.63 Corruption could just as easily be rooted out post-trial as it could pre-trial. In addition, rather than making jurors more likely to be candid in their answers during voir dire, knowing that their personal lives and opinions will be exposed to the public by
In addition to considering the benefits of public access to the names of the jurors,64 we must also consider the potential dangers of public access. See North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 217 (3d Cir.2002) (noting that “to gauge accurately whether a role is positive, the calculus must perforce take account of the flip side—the extent to which openness impairs the public good,” and that “were the logic prong only to determine whether openness serves some good, it is difficult to conceive of a government proceeding to which the public would not have a First Amendment right of access“). Requiring district courts to bow to media demands to know the names of prospective jurors would certainly impair the public good in many cases. Although the media may desire this information for the avowed purpose of opening the judicial process to public scrutiny, the media will likely use the information it possesses for the purpose of writing stories about the prospective jurors. In order to gather further information, there is a strong possibility that the media will make contact with the prospective jurors or their families and friends before the trial begins. Such reporting may require significant and unwarranted invasions of the privacy of the jurors, none of whom had a choice about being called to service. Furthermore, it stands to reason that it is more likely that the parties or their enemies will be able to exert influence over the jurors were they to know their identities. Finally, knowing that jury service will result in potential harassment and invasions of their privacy, citizens will likely be more reluctant to serve and less likely to be candid during jury selection. Thus, requiring pre-empanelment disclosure of the identities of prospective jurors raises significant concerns about hindering the public interest in fair and orderly trials presided over by unbiased jurors.65 This, ironically, is the
In light of the foregoing analysis, the Majority‘s argument that the right of access necessarily includes the right to have the identities of the prospective and trial jurors announced to the public prior to the empanelment of the trial jury fails to pass the Press-Enterprise II logic test. There is no logical support for the line the Majority draws when it requires disclosure as a matter of constitutional right prior to the empanelment of the trial jury.66 See, e.g., United States v. Edwards, 823 F.2d 111, 120 (5th Cir.1987) (noting that the “usefulness of releasing jurors’ names appears to us highly questionable“). The potential that pre-empanelment disclosure will hinder the judicial process, whether by tainting the jury, making it more difficult to select an uninformed jury, or subjecting the jurors to harassment and depredation, far outweighs the benefit to the public of knowing the names of the prospective and trial jurors prior to the commencement of the trial.67 Accordingly, I do not believe that logic supports the constitutional rule announced by the Majority: that courts must disclose the names of prospective and trial jurors to the media prior to empanelment as a matter of constitutional law.
B.
Two cases from other jurisdictions are instructive, although not binding, with regard to the question of whether the First Amendment right of access includes a right to force a district court to disclose the identity of the prospective jurors. Both United States υ. Black, 483 F.Supp.2d 618 (N.D.Ill.2007), and Gannett Co., Inc. v. State, 571 A.2d 735 (Del.1990), addressed factual and procedural circum-
1.
Black involved a high-profile criminal fraud prosecution. In that case, the district court, recognizing the intense media coverage of the trial, held anonymous voir dire in open court but entertained the peremptory challenges at sidebar. See Black, 483 F.Supp.2d at 620-21. Following jury selection, the district court disclosed the names of the empaneled jurors and the alternates to the parties, but it did not release that information to the media. Id. at 621. The media filed a motion to compel the district court to release the names of the jurors and alternates prior to trial. Id. at 620.
After engaging in an extensive discussion and analysis of the Press-Enterprise II factors, the district court denied the motion. See id. at 622-30. According to the district court, not all aspects of the criminal trial process are protected by the First Amendment‘s right of access. See id. at 622 (citing circuit court decisions holding “that the First Amendment does not guarantee access to withdrawn plea agreements, affidavits supporting search warrants, or presentence reports“). The court noted that the issue in Black was not whether the media had a right of access to the voir dire proceedings, as that question was settled, but whether experience and logic dictated that the media had a constitutional right to learn the names of jurors before a verdict was rendered. See id. at 624. After reviewing decisions and opinions from other circuit and district courts, all of which upheld varying degrees of restriction on the media‘s access to the names of prospective jurors, the district court determined that analyzing the voir dire process in light of the “experience” prong of Press-Enterprise II did not result in a finding that the media had a constitutional right to the names of the jurors prior to the conclusion of the trial. See id. at 626. The district court in Black also held that the “logic” prong of the Press-Enterprise II test did not establish a constitutional right. In particular, the district court noted that open access to juror names did not achieve the same effect of vindicating the public‘s right to oversee judicial proceedings as did requiring the process itself to be available to public scrutiny. See id. at 628 (“But open access to juror names during the pendency of trial has no similar effect and, in fact, disclosure enhances the risk that the jury will not be able to function as it should, in secrecy and free of any outside influence.“) (emphasis in original). Accordingly, the court in Black refused to release the names to the media, having found no constitutional right to know the names of the jurors prior to the conclusion of the trial.
2.
As in Black, the Delaware Supreme Court in Gannett had to determine if and when the Constitution requires public disclosure of the names of prospective and trial jurors. Gannett involved a high-profile murder case. Based on extensive publicity in the prior trial of a co-defendant and overwhelming pre-trial publicity in the case presently before it, the trial court in Gannett decided to withhold the names of prospective jurors from the media during voir dire; it permitted the parties to know the identities of the prospective jurors. See Gannett, 571 A.2d at 737. Much like the case before us, prospective jurors in the Gannett case were only identified by their assigned juror number. See id. The media was permitted to be present in the courtroom and to observe and report on the proceedings. See id. at 737. Gannett, the publisher of a state-wide daily newspaper, intervened and petitioned the trial
The Delaware Supreme Court upheld the trial court‘s jury selection procedures, noting that because Gannett failed to satisfy either of the Press-Enterprise II requirements, no qualified right to the names of the prospective jurors existed prior to jury selection. See id. at 751. According to the Delaware Supreme Court, the issue of whether the right of access included the right to know the names of the prospective jurors was one of first impression, as all of the cases dealing with the right of access concerned restrictions on the right to view court documents or complete closures of the courtroom. See id. at 741-42; see also id. at 742 (“To our knowledge, however, no court has yet recognized a right of access to jurors’ names.“). Accordingly, the Court employed the Press-Enterprise II test because it was the “most closely analogous basis for disposition of the matter.” Id. The Court framed the issue in the case as: whether the “announcement of jurors’ names has traditionally been open to the press and general public.” Id. at 743. It concluded that “the historical tradition gives trial courts discretion over [voir dire] matters, which is reflected in express statutory provisions enacted by duly elected representatives of the people at the state and national levels.” Id. at 748.
In addition to determining that experience weighed on the side of giving the trial courts discretion to manage voir dire procedures, the Court held that announcing the names of the prospective jurors had only a tenuous and insignificant logical connection to the goals of the First Amendment‘s right of access. See id. at 751 (noting that the trial court‘s procedures “assured the public that the trial was fair without closing the proceedings to anyone,” and that “there is nothing to suggest that such actions undermined public trust in the judicial system“). In so holding, the Court rejected the claims put forth by the defendant that announcing the names of the prospective jurors was necessary to ensure that jurors were candid in their responses to voir dire questioning. See id. at 750. Thus, the Court held, the media was not entitled, as a matter of constitutional right, to the names of the prospective jurors prior to the commencement of the trial. See id. at 751.
3.
Black and Gannett analyzed the precise question before us in virtually identical factual circumstances. Both courts concluded that the First Amendment right of access does not include a right to know the names of prospective and trial jurors. The courts in both cases undertook an extensive and thorough analysis of the Press-Enterprise II factors in reaching the conclusion that the decision to withhold the names of jurors, whether before or during the trial, is within the discretion of the trial courts. Those courts did not, as the Majority does in its opinion, merely presume that because voir dire is generally held in public and because many years ago juries were only drawn from small communities in which people knew one another, that there must be an historical tradition of permitting the public to force disclosure of the names of prospective jurors. Accordingly, although the Black and Gannett holdings are not binding on our Court,68
C.
In conclusion, an analysis of the Press-Enterprise II test does not support the rule announced by the Majority today. Neither the Media-Intervenors nor the Majority has produced convincing evidence that the public has a qualified right under the First Amendment to force the disclosure of the names of both the prospective and trial jurors prior to empanelment.69 The Majority‘s analysis of whether there is an historical practice of revealing the names of prospective and trial jurors prior to the empanelment of the trial jury largely ignores the suggestions of Congress and the Judicial Conference, as well as court practices of at least the last half-century. In addition, the Majority relies on cases granting the media post-trial access to juror names for the proposition that the media is entitled to the names of the jurors prior to the trial, a conclusion that does not follow from the cited authority. Finally, the Majority offers little to support its conclusion that the public‘s desire to know the names of jurors prior to the beginning of the trial plays such an important role in the proper functioning of the judicial process that the media is entitled to force pre-trial disclosure despite the trial court‘s determination that anonymity is in the best interests of the parties and the judicial system. Simply because pre-empanelment disclosure may play a positive role in some cases does not, by itself, make that role so significant that pre-empanelment disclosure is required by the Constitution. See Gannett, 571 A.2d at 745 (“Merely because an historic procedure exists, does not automatically enlarge it to constitutional proportions.“).
The names of jurors are neither a “place” nor a “process,” and the history of voir dire, especially over the last half-century, has been one of increased discretion on the part of the district courts.
III.
The Majority‘s analysis of Press-Enterprise I and Press-Enterprise II leads it to the conclusion that the ability of the media to force disclosure of the identities of the prospective and trial jurors is protected as part of the First Amendment right of access. Even if I agreed that this analysis was correct, which I do not, I would hold that the reasons given by the District Court in its December 21 Order were sufficient to permit the District Court to temporarily withhold the names of the prospective and trial jurors.
A.
As this Court has noted, the media‘s First Amendment right to have access to trial proceedings is not absolute.71 Smith, 123 F.3d at 147. It is, rather, a presumptive right that can be overcome where there is a compelling reason to close the proceedings or withhold the information. See Press-Enterprise I, 464 U.S. at 509 (requiring the district court to show cause “that outweighs the value of openness“). As the Supreme Court suggested in Press-Enterprise I, a district court must place sufficient and compelling reasoning on the record such that “a reviewing court can determine whether the closure order was properly entered.” See id. at 510. In light of the Supreme Court‘s jurisprudence in this area, it is necessary to determine whether there is a compelling reason for the actions taken by the District Court and whether those actions are narrowly tailored to achieve the goals of the District Court. See Antar, 38 F.3d at 1359.
1.
The District Court had a number of concerns in mind when it prepared its jury selection order. The District Court expressed a great deal of concern about the harassment that the jurors, as well as their
The District Court‘s concern about protecting the privacy of the jurors goes in tandem with the aforementioned concern about avoiding potential outside influences on the jury. In the December 21 Order, the District Court noted its concern about the privacy of the prospective and trial jurors given the tremendous media attention this trial has garnered. The privacy of jurors is a significant interest, as protecting that privacy is the best way to avoid harassment of the jurors. See Press-Enterprise I, 464 U.S. at 511-12, 519; see also id. at 519, 104 S.Ct. 819 (Stevens, J., concurring) (“As the Court recognizes, the privacy interests of jurors may in some circumstances provide a basis for some limitation on the public‘s access to voir dire.“). As with the concern about the potential for the Media-Intervenors to influence or deter the jury from impartial consideration of the case, however, the Majority dismisses this concern without much discussion, noting that: “The District Court has not established that there is anything unusual about this case, aside from a locally prominent defendant, that makes the prospective jurors’ hypothetical privacy concerns more compelling than usual.”73 See Maj. Op., supra, at 240. Certainly, ensuring that jurors are not harassed, influenced, deterred from service, or hindered in their ability to be honest in their answers at voir dire in such a high-profile criminal case74 is a compelling reason for limiting the amount
The other concerns voiced by the District Court are no less compelling. The District Court considered the possibility that friends or enemies of Dr. Wecht might attempt to harass or influence the jury were the identities of the prospective and trial jurors known to the public before and during the trial. Dr. Wecht is a prominent political figure in western Pennsylvania, and many may perceive this prosecution as politically-motivated. Dr. Wecht has testified in hundreds of trials regarding causes of death, and his testimony has frequently led to findings of guilt or liability. He is a prominent commentator and writer as well, as the letters to the editor included in the record reveal. Although Dr. Wecht is not of the same ilk as the organized crime figures in cases such as United States v. Scarfo, he is nonetheless a prominent and controversial figure. Given his position as a prominent political figure and an elected official, it is entirely possible that there are members of the public who have an interest is seeing a particular outcome in this case.76 In addition, Dr. Wecht stands to be deprived of his liberty based on the jury‘s verdict, so ensuring that the jury is fair and impartial, and that their verdict is free from doubt, is even more compelling in the instant case. As the District Court, and not this Court, is in the best position to judge the likelihood of potentially harmful influences on the jury, we should give the District Court‘s evaluation of the “local ambience” of the trial a great deal of weight when deciding whether its reasons for limiting the media‘s access are in fact compelling. See Scarfo, 850 F.2d at 1023.
2.
With regard to the second part of the First Amendment test, that the procedures adopted by the district court be narrowly tailored to achieve the court‘s stated goals, the District Court‘s limit on the media‘s access to the names of the prospective and trial jurors only before and during the trial passes constitutional muster. The District Court‘s restrictions on media access in this case are extremely limited. According to the District Court‘s order, the media is entitled to be present for all phases of voir dire. They are entitled to review the questions asked on the questionnaire prior to the beginning of jury selection. The challenges for cause, although made solely on the basis of the questionnaire and without the benefit of in-court questioning, will be made in open court. The parties will then interview the individual prospective jurors before making their peremptory challenges; this will likewise be done in open court and under the scrutiny of the media. Finally, the media will have access to the completed questionnaires following the conclusion of the trial. The media thus has access to almost every aspect of, and piece of information related to, jury selection. The only information that the media is not permitted to know before and during the trial is the identity of the individual prospective and trial jurors, as they will be referred to only by their assigned number. Thus, the District Court‘s re-
B.
The jury selection procedure employed by the judge in the instant matter was a compromise based on the various interests at stake: the public‘s interest in openness, the media‘s interest in knowing certain information, the defendant‘s interest in a fair trial, the jury‘s interest in privacy and being free from harassment and intimidation, and the judicial system‘s interest in fairness and efficiency. Certainly, the District Court could have taken other action, including sequestering the jury.79 Sequestration, however, is “one of the most burdensome tools of the many available to assure a fair trial,” and it should only be employed if there are no other, less burdensome or more effective options available. See Mastrian v. McManus, 554 F.2d 813, 819 (8th Cir.1977); see also Gannett, 571 A.2d at 751. In the instant case, the extremely limited restrictions on media access were far more accommodating to the Media-Intervenors, as well as far less burdensome on the jurors and the court, than sequestration would have been.
In order to effectively satisfy the various, and often competing, interests of the public, the media, the defendant, the government, the jurors, and the courts, the District Court in this case chose the least restrictive means to achieve its goals when it permitted the media access to everything except the identities of the prospective and trial jurors. The District Court clearly stated sufficiently compelling reasons to warrant some manner of protection for the jurors. The concerns of the District Court were not, as the Majority so casually suggests, merely generalized concerns about juror privacy.80 Given the District Court‘s extremely narrow and temporary imposition on the Media-Intervenors, the Majority‘s conclusion that the District Court‘s actions were not narrowly tailored to protect a compelling interest is incorrect.81 Accordingly, I would have upheld the District Court‘s jury selection order.
IV.
The biggest problem with the Majority‘s holding is the nature of the remedy the Majority fashions for the alleged violation of the First Amendment. To reverse the District Court‘s December 21 Order and to order the District Court to disclose the names of the prospective and trial jurors is not only premature, it improperly invades the traditional purview of the district courts. Given the state of the law and the facts of this case, as well as the fact that the case was neither further briefed nor argued, the Majority‘s decision to grant the Media-Intervenors’ request for reversal is not appropriate.
The Majority today redefines the contours of the well-established right of access
The Majority also should not have reversed the District Court without giving it an opportunity to make additional findings in light of the new constitutional right announced by the Majority. The District Court clearly believed that the ability to establish such procedures for jury selection was within in its discretion. There is little in the record that suggests that the District Court was aware that the media‘s interest in knowing the names of the prospective jurors was protected as a constitutional right, and thus it did not analyze the Media-Intervenors’ motion under the more rigorous First Amendment test. Effectively, the Majority substitutes its judgment for that of the District Court, which is clearly in a better position to judge the problems that may arise. We should not micro-manage aspects of district court proceedings that are traditionally within the discretion of those courts. Simply because we might have done otherwise if we were the trial judges does not mean that the circumstances of this case do not warrant such action.83
As this Court has noted, “[a] criminal trial is, even in the best of circumstances, a complicated affair to manage.” United States v. Rivera, 384 F.3d 49, 55 (3d Cir.2004) (quoting United States v. Jorn, 400 U.S. 470, 479-80 (1971)). By holding today that the media has a right to the identities of the jurors that attaches before empanelment, and by permitting appeals of alleged deprivations of that right on an interlocutory basis, the Majority handcuffs the district courts and makes it all the more difficult for district judges to manage the complexities of criminal trials. In effect, the Majority today elevates almost every voir dire procedure the media finds inconvenient to a constitutional issue. In addition, the Majority draws a line delineating when the “right” to know the identities of the jurors purportedly attaches, despite a great deal of case law and practice that suggests that no such right exists or that if the right does exist, it can be fully vindicated at a later time. And the Majority does all of this without argument or additional briefing as to whether declaring the existence of this right is consistent with traditional practices.
We should have charted a much more cautious course in light of the admittedly unclear state of the law on this question. Rather than act in so hasty a fashion and without more information and deliberation, we should have remanded the issue to the District Court for additional fact-finding in light of the newly-announced constitutional protection for access to the identities of prospective jurors. The District Court, and not this Court, is most familiar with the particular issues surrounding the conduct of the trial and the pressures facing jurors. We should give some credit to the District Court‘s evaluation of the “local ambience” surrounding the trial of Dr. Wecht.84
The District Court took the actions it believed were necessary to effectively protect the various competing interests and rights implicated by such a public and lengthy trial. The District Court should not be doomed and controlled in the conduct of its trial merely because it failed to articulate clearer reasons to satisfy a standard it could not have been aware existed before today‘s opinion. If the refusal to disclose the names of the prospective jurors prior to the empanelment of the jury is now a constitutional violation, as the Majority‘s holding establishes, the District Court should have the opportunity to modify its trial procedures to comport with this new rule.85
V.
As I have set forth in the preceding sections, I dissent from the Majority‘s holding on a number of grounds. I do not believe that an order setting forth trial procedures is generally appealable as a collateral order, nor do I believe that the order at issue in this case is sufficiently final such that interlocutory review is warranted. Additionally, I disagree with the Majority‘s analysis of Press-Enterprise II, as it either ignores or marginalizes a statute passed by Congress, a great deal of case law, a history of giving trial judges significant discretion over the conduct of
In this age of pervasive media coverage, which is necessary to ensure that the public is informed and can satisfy its duty of overseeing the judicial process, it is critical to permit district courts to do what is necessary to ensure that the judicial system functions properly. If anything, giving the district courts the discretion to keep the identities of jurors confidential for a period of time significantly advances the goal of ensuring a fair and impartial criminal justice system. See Scarfo, 850 F.2d at 1023; see also Sheppard, 384 U.S. at 362-63. The District Court‘s voir dire procedures sufficiently balance the various and often competing interests implicated by such light-profile criminal trials, and the procedures it selected are far less onerous than sequestering the jury would be. See Gannett, 571 A.2d at 751. I cannot support the Majority‘s decision to micro-manage the voir dire procedures of the Wecht trial by vacating the District Court‘s order.
In my opinion, the District Court should, in the exercise of its discretion, release the names of the prospective jurors who were not selected for the trial jury following the seating of the trial jury. I hold this opinion because I believe that in light of the facts and circumstances of this case, such action would be an appropriate exercise of the District Court‘s discretion. With regard to the names of the actual trial jurors, the District Court is entitled to keep the names of the trial jurors confidential during the trial. I express no opinion as to whether the names of the trial jurors should be released after the trial, whether as a matter of constitutional right or the District Court‘s discretion, though I note that the reasons it has set forth for concealing the identities of the trial jurors become less persuasive once the trial is completed. See Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1306 (1983) (“[T]he State‘s interest ... in shielding jurors from pressure during the course of the trial ... becomes attenuated after [the verdict].“). I do not mean to suggest, however, that the District Court has to do what I have suggested because the Constitution requires it. The Constitution does not, as the Majority suggests, require pre-empanelment disclosure; thus, the Majority‘s invasion of the traditional realm of the district courts’ discretion is not justified.
Because I cannot join in an opinion that will cause so many problems in our district courts, that establishes a new class of interlocutory orders, that effectively creates a new constitutional right, and that sets a precedent of permitting our Court to micro-manage trial procedures established by the district courts, I respectfully dissent.
UNITED STATES of America
v.
Jorge REYEROS, Appellant.
United States of America
v.
Juan Reyeros, Appellant.
Nos. 06-1485, 06-1486.
United States Court of Appeals, Third Circuit.
Argued: April 17, 2008.
Filed: July 31, 2008.
Notes
464 U.S. at 512 (emphasis added). Arguably, this passage can be “read to imply that jurors’ identities are part and parcel of voir dire, and as such are governed by the same principles of presumptive access.” Beacon Journal v. Bond, 98 Ohio St.3d 146, 781 N.E.2d 180, 192 (2002) (quoting David Weinstein, Protecting a Juror‘s Right to Privacy: Constitutional Constraints and Policy Options, 70 TEMPLE L.REV. 1, 30 (1997)). See also Gannett Co., Inc. v. State of Delaware, 571 A.2d 735, 755 (1990) (Walsh, J., dissenting). Although this argument is plausible, we will not conclude from a single passage of Supreme Court dicta that the question is decisively settled. Rather, we treat the question as unsettled and proceed with the “experience and logic” analysis required by Press-Enterprise II.When limited closure [of voir dire] is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror‘s valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.
571 A.2d at 757-58 (Walsh, J., dissenting).One cannot conclude with certainty that in the entire history of Anglo-American jurisprudence an anonymous jury was never impanelled [sic] prior to the 1970s. Yet the majority appears to demand that degree of certainty before it would be willing to recognize a tradition of openness. Rather than requiring Gannett to show that a strong presumption of openness exists, the majority would ask it to prove that restrictions have never and could never have been imposed. By contrast, the United States Supreme Court has never required such an impossible standard of proof.