Lead Opinion
OPINION
I.
We issue this opinion in support of our order filed on January 9, 2008 in the mat
II.
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,
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).
[t]o the extent that the District Court’s order restricts access of Media Interve-nor-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 28 U.S.C. § 1291 and the “collateral order” doctrine.
In United States v. Schiavo, 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.”
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,
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.,
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,
The second requirement is that the order “resolve an important issue completely separate from the merits of the action.” Coopers & Lybrand,
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,
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-In-tervenors have a right to the jurors’ names, for the reasons discussed below, we reject this argument and conclude that the Media-Intervenors have standing.
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 reduction 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,
In Richmond Newspapers, Inc. v. Virginia,
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,
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.
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.”
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.,
The Government’s strongest argument that there is no such tradition of openness is based on 28 U.S.C. § 1863(b)(7), which instructs District Courts to put into effect a jury selection plan that will
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.
28 U.S.C. § 1863(b)(7) (2000) (emphasis added). When Congress enacted this provision in 1968, the accompanying legislative history explained that it “permits the present diversity of practice to continue. Some district courts keep juror names confidential for fear of jury tampering. Other district courts routinely publicize the names.” See In re Globe Newspaper,
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,
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
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,
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.
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.
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.
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*241 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 “con-clusory 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,
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 fives,” and that some of these people “may feel wronged as a result of his judicial decisions.” Id. The document points out that “[tjhose 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.
We reject the Media-Interve-nors’ 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,
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 counsel
Notes
. Our order decreed that "juror and prospective jurors' names” shall be disclosed prior to the swearing and empanelment of the jury. The term "prospective juror” refers to a member of the venire. The term "juror” refers to a member of the venire who is chosen to be part of the actual trial jury. For the sake of clarity, this opinion will use the term "trial jurors” to describe people in the latter category. We also emphasize that, referring to the names of "juror[s] and prospective jurors,” we anticipated that the District Court's disclosure would distinguish between the names of trial jurors and those of prospective jurors. It appears that in the disclosure that followed the entry of our order, the District Court did not make such a distinction. See Notice of Filing Prospective Juror List, United States v. Wecht, No. 06-CR-26 (W.D.Pa. Jan. 23, 2008).
. In May of 2006, the Media-Intervenors moved to intervene in an effort to unseal certain court filings. In response to those motions, the Court unsealed certain documents. Wecht and the Government appealed several rulings, and Wecht filed a petition for mandamus seeking review of the District Court's denial of his motion to recuse. See United States v. Wecht,
. Judge Schwab provided two reasons for his preference for this term. First, he said that the term "anonymous” inappropriately connoted a "clandestine, forbidden, and obscure jury panel.” Dec. 21 Order at 21 n. 5 (quoting United States v. Carpa,
. The full title of this application is "The Media’s Emergency Motion For Summary Reversal Of The District Court’s Order Dated December 21, 2007, Or, In The Alternative, Expedited Relief In The Form Of A Stay Of Jury Selection And Trial Proceedings Pending Disposition Of This Appeal.”
. The full title is "Government’s Response To The Media's Emergency Motion For Summary Reversal Of The District Court’s Order Dated December 21, 2007, Or, In The Alternative, Expedited Relief In The Form Of A Stay Of Jury Selection And Trial Proceedings Pending Disposition [Of] This Appeal.”
. The full title is "Cyril H. Wecht's Response To The Media’s Emergency Motion For Summary Reversal Of The District Court’s Order Dated December 21, 2007, Or, In The Alternative, Expedited Relief In The Form Of A Stay Of Jury Selection And Trial Proceedings Pending Disposition Of This Appeal.”
. The full title of the Media’s Reply is "The Media's Reply in Support of Emergency Motion for Summary Reversal of the District Court’s Order dated December 21, 2007, or, in the Alternative, Expedited Relief in the Form of a Stay of Jury Selection and Trial Proceedings Pending Disposition of this Appeal.”
. The dissent argues that we would have benefited from "additional briefing” given the fact that the parties' original filings focused on the Media-Intervenors’ request for summary reversal or a stay. Dissent, infra, at 58 n. 44. As noted above, we offered the parties an opportunity to file supplemental briefs after the matter was referred to a merits panel, and they chose to rely on their previous filings.
. We noted that Media-Intervenors were "not seeking access to the jurors' home addresses or the actual jury questionnaire.” Order at 2 n. 1, United States v. Wecht, No. 07-4767 (3d Cir. Jan. 9, 2008). For that reason, we do not address those issues here.
. In our January 9 order, we stated: "Appellate jurisdiction exists under the collateral order doctrine.” Order at 2, United States v. Wecht, No. 07-4767 (3d Cir. Jan. 9, 2008) (citing Cohen v. Beneficial Indus. Loan Corp.,
. We note that our decision to grant review in this case does not threaten "the compelling interest in prompt trials.”
. In ABC, Inc. v. Stewart,
. The Dec. 21 Order does not explicitly address whether the venirepersons will be present when counsel reviews the jury questionnaire in open court.
. The dissent argues that the December 21 order was not final because if the Media-Intervenors or the defendant had petitioned for modification of the December 21 order, “they may well have been successful.” Dissent, infra, at 246. Given the fact that the District Court had already considered and rejected their arguments, we find it unlikely that they could have achieved the desired modification by making these arguments again. Of course, it was theoretically possible that the District Court would have modified the December 21 order, either in response to a petition for modification or sua sponte. This possibility does not eliminate finality, however, because the first requirement of the collateral order doctrine may be satisfied when "there is no basis to suppose that the District Judge contemplated any reconsideration of his decision.” Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,
.We recognize that the Government's failure to challenge the finality of the order is not dispositive, since it is always our duty to ensure that we are properly exercising jurisdiction. To the extent that the finality of the order is a factual issue, however, the Government may be in a better position than we are to evaluate whether the District Court would have considered a request for modification. Therefore, its decision not to challenge this requirement of the collateral order doctrine is notable.
. At times, courts have treated importance as a fully independent requirement of the collateral order doctrine. See, e.g., Nixon v. Fitzgerald,
. In a footnote, the Government "questions the importance of the Media's ability to write articles that include jurors' names as opposed to articles without them.” See Government’s Response at 9 n. 6. As we explain below, however, the release of juror names can be an important part of the public's right of access. In the words of the First Circuit in In re Globe Newspaper Co., "[kjnowledge 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.”
.The Government cites several cases in support of a contrary conclusion. First, it cites Sell for the proposition that an issue satisfies the "completely separate” requirement only when it is separate "from questions concerning trial procedures.”
. Contrary to the Government’s suggestion, the Media-Intervenors are not seeking access to the questionnaires, so we need not consider whether they have a “right” to access them for standing purposes. Pursuant to Press-Enterprise I, the Media-Intervenors have at least a presumptive right of access to voir dire proceedings, so we conclude that they have standing to the extent that they claim that they challenge the District Court's voir dire rulings on right of access grounds.
. The District Court states later in its order that "in accordance with Misc. Rule 06-211, the Court (and no counsel or party) will neither read nor state the names or addresses of prospective jurors in open court, nor will they provide the media or any person or party access to the names or addresses of the prospective or empaneled jurors.” Dec. 21 Order at 37. Despite this, it appears that the District Court did not rely on Misc. 06-211 even if it might have acted "in accordance with” it. Thus, we will not consider the constitutionality of Misc. 06-211 in our evaluation of the District Court's order.
. The Media-Intervenors also state that the common law or the Third Circuit's supervisory powers establish a right of access to criminal proceedings that includes disclosure of the jurors' names and voir dire in open court. Media's Emergency Motion at 10-11 (citing In Re The Baltimore Sun Co.,
. Although no opinion in Richmond Newspapers commanded a majority, seven of the eight justices who participated in the case recognized that the First Amendment embodies a right to attend criminal trials. See
. We point out that the First Amendment right of access that the Media-Intervenors assert is distinct from a defendant’s Sixth Amendment right to challenge the use of an anonymous jury.
. Some have argued that the Supreme Court settled this question in Press-Enterprise I by implying that jurors’ names are an inseparable component of voir dire. Discussing a potential conflict between the First Amendment presumption of openness for voir dire, and jurors' privacy interests, the Court said:
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.
. The Fourth Circuit's Baltimore Sun opinion ultimately rests on the common law rather than on the First Amendment.
. For example, in Hamer v. United States,
. We agree with the observation of the dissenting judge in Gannett Co.,
One cannot conclude with certainty that in the entire history of Anglo-American jurisprudence an anonymous jury was never im-panelled [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.
. The dissent states that "[t]he Committee recommended that each District Court adopt a rule providing for special measures to be taken in cases likely to receive significant media attention, including” a direction that jurors’ names and addresses be withheld. Dissent, infra, at 254. The dissent’s language ("special measures to be taken ”) suggests that the Committee recommended that District Courts adopt a rule requiring judges to withhold jurors’ names and addresses in high-profile cases. For the sake of clarity, we note that the Committee said that "[sjuch a special order might be addressed to some or all of the following subjects,” including the withholding of names and addresses.
. Although these risks may be greater when the jurors’ identities are made public during trial, they often exist even when the jurors’ identities will remain secret until the end of trial. First, jurors might be reluctant to convict a defendant who is known to be dangerous for fear of post-trial retaliation from the defendant's friends. Second, jurors might be reluctant to serve on a jury at all if they think that they will be the subject of media attention post-trial. Third, jurors might lie during voir dire because they fear that, after the trial, sensitive information will be revealed.
. We acknowledge that our conclusion in the instant case may be inconsistent with our dicta in United States v. Scarfo,
. The dissent claims that "[cjorruption could just as easily be rooted out post-trial as it could pre-trial.” Dissent, infra, at 257. Although we agree that corruption could be rooted out post-trial, it is far more desirable to discover it pre-trial. It is neither fair nor efficient to subject a defendant to a second trial because the jury in the first trial was tainted. Moreover, post-trial discovery of corruption shakes public confidence in the validity and finality of criminal jury verdicts. Of course, we do not suggest that a public right of access to jury names is the most effective method for uncovering corruption or bias in jury selection before a trial begins. Voir dire, conducted by the parties and the court, has traditionally been the primary method for accomplishing this. Nonetheless, we believe that public access plays an important role in the criminal justice system by allowing the public to verify, before a trial has begun, that the trial will proceed with an impartial jury.
. The District Court found that the media had no First Amendment right to obtain the jurors' names, and therefore described its decision to withhold the names as an exercise of discretion that balanced "competing constitutional interests.” Dec. 21 Order at 26-27.
. The District Court appears to believe that no good can come from any story published about a juror. As we noted above, however, press investigation of jurors might be beneficial in some cases by, for example, revealing possible sources of juror bias or deterring misrepresentation during voir dire.
.Taken to its logical conclusion, the District Court’s argument would allow judges to withhold the names of jurors in every case that might attract media attention. In fact, aside from the reference to "Western Pennsylvania” reporters, any other court could copy the District Court’s statement verbatim to justify an anonymous jury in any high-profile case.
. The District Court said in a footnote that it was "aware of the arguments made by the government regarding defendant's alleged witness intimidation,” and referred to a letter that two individuals sent to the court asking that the jury be anonymous in light of threatening letters that they had received from Wecht. Dec. 21 Order at 30 n. 9. But the District Court denied that it was relying on these alleged threats "as the basis for its decision to empanel an innominate jury,” id., and did not include any findings of fact about them in the record. Thus, even assuming arguendo that these alleged threats provide a justification for an anonymous jury, we cannot rely on them because the District Court was required to place "findings on the record which clearly established that closure was necessary to protect an overriding interest.” Antar,
. Voir dire may detect prospective jurors with obvious connections to Wecht, even if they are anonymous. But if we accept Wecht’s assertion that he has incurred the animus of countless "friends” of those who were affected adversely by his participation in trials, some of these connections might not be obvious. Moreover, any person who feels passionately enough about Wecht to threaten jurors would presumably be willing to lie about his or her connections to Wecht during voir dire, protected by anonymity, in order to earn a spot on Wecht’s jury.
. We need not conduct an "experience and logic” inquiry into whether a public right of access to voir dire proceedings exists, because Press-Enterprise I established that this right exists.
. Suffice it to say, the fact that the accused here supports the Media-Intervenors’ appeal — which often is not the case, see, e.g., ABC, Inc.,
Concurrence Opinion
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.
I.
According to the Majority, this Court has jurisdiction over the Media-Interve-nors’ 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,
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.,
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,
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.
1.
The first prong of the Coopers & Lyb-rand test requires that the order at issue “conclusively determine the disputed question.” See Coopers & Lybrand,
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.
Because the Media-Intervenors have not met their burden of demonstrating that the December 21 Order “conclusively determined” the procedures for selecting the jury,
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,
The issue is not, as the Majority repeatedly suggests, about the “value” of the right to know the names of the prospective and trial jurors
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,
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.
D.
The Majority today errs in holding that we have jurisdiction over the Media-Inter-venors’ 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 claims
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,
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,
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,
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.
i.
In 1968, following the Supreme Court’s decision in Sheppard v. Maxwell,
The jury selection procedures employed by various jurisdictions in implementing 28 U.S.C. § 1863(b)(7) further undercut the Majority’s argument that the “experience” prong supports a determination that the names of jurors were historically available to the media as a matter of right. Following the passage of 28 U.S.C. § 1863(b)(7), numerous jurisdictions across the country implemented, and continue to employ, jury selection plans that permit individual judges to keep the names of jurors confidential. See, e.g., D. Ariz. L.R.Crim. P. 57.2(f)(5); D. La. L.Crim. R. 53.10(E); D. Minn. L.R. 83.2(c)(5); D.N.D. L.R. 77.3(E)(5); N.D. Okla. L.Crim. R. 57.3(A)(5); D.P.R. L. Civ. R. 83.7(g)(5); W.D. Wash. L.Crim. R. 53(c)(5). Most of the district courts in our Circuit have developed and continue to employ similar plans. See United States District Court for the Eastern District of Pennsylvania, Jury Selection Implementation Plan, at ¶ 9(a), reprinted in Peter F. Vaira, Eastern District of Pennsylvania Federal Practice Rules Annotated 653 (2003); Juror Selection Plan, United States District Court for the Middle District of Pennsylvania §§ 503, 904, http://www.pamd. uscourts.gov/stando/89-69.pdf (revised Aug. 5, 1999); In re Jury Administration Procedures, Misc. 06-211 (W.D.Pa. July 13, 2006), http://www.pa.wd.uscourts.gov/ Documents/Forms/jury_06-211.pdf (July 13, 2006); Revised Jury Plan of the United States District Court for the District of Delaware for the Random Selection of Grand and Petit Jurors, at ¶ 8, http://www. ded.uscourts.gov/jury/juryplan.pdf (amended Apr. 10, 2002); Plan of Implementation of the United States District Court for the District of New Jersey Pursuant to the Jury Selection and Service Act of 1968, at ¶ I, http://www.njd.uscourts.gov/jury/ JURY-PLAN-FINAL-l-31-03-apprv.pdf (revised November 1, 2002).
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.
Hi
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,
iv.
The nature of trial practice has undoubtedly changed over the last few decades, let alone the last millennium.
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,
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,
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,
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:
[Pjromotion 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,
Neither the Majority nor the Media-Intervenors explains why informed discussion or understanding of the judicial process can only take place pre-trial.
In addition to considering the benefits of public access to the names of the jurors,
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.
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 v. Black,
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,
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.
£
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,
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.
S.
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,
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.
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.
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,
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. Scavfo, 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.
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 restrictions are entirely different from those at issue in Antar, on which the Majority relies. See Antar,
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.
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.
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.
As this Court has noted, “ ‘[a] criminal trial is, even in the best of circumstances, a complicated affair to manage.’ ” United States v. Rivera,
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.
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.
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,
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,
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.
. In this opinion, I adopt the Majority’s use of the terms "prospective jurors,” which refers to the members of the venire, and "trial jurors,” which refers to the members of the venire who are chosen to compose the actual trial jury.
I also note that the jury in this case is not "anonymous,” as the parties will know everything about the jurors, including their names and other personal information, and the public will know everything about the jurors except their names. The District Court was therefore correct in referring to this jury as "innominate,” rather than "anonymous.” Furthermore, there has been no indication that the trial jurors’ names will not be released following the trial.
.I join the Majority’s holding that the District Court’s use of the questionnaires for jury selection is permissible. I am also of the view that the names of those prospective jurors not selected for jury service should be disclosed once the trial jury is seated. Obviously, such disclosure is contingent on the ability of the parties to keep the names of the prospective jurors confidential, and the District Court should take the actions necessary to ensure the parties do keep the names confidential. The time and manner of disclosure is within the discretion of the District Court, however; it is not constitutionally mandated. Additionally, the unique circumstances of this case likely justify withholding the names of the trial jurors at least until the end of the trial. Insofar as the Majority opinion suggests that the District Court has the discretion to make these disclosures, I join that part of the opinion.
. As a general rule, this Court has jurisdiction to hear appeals only from final decisions of the district courts. See 28 U.S.C. § 1291; see also Cohen v. Beneficial Indus. Loan Corp.,
. Judge Aldisert also expressed concern with the ever-expanding scope of the collateral order doctrine in Borden Co. v. Sylk,
. The Majority's thorough analysis of the second prong is correct because the issue of jury selection is sufficiently separate from the merits to satisfy this prong.
. At the very least, the District Court should have been given the opportunity to make further modifications in light of the Media-In-tervenors' arguments. A better method for challenging these procedures prior to empan-elment would have been by way of a stay with an initial application to the District Court. See Fed. R.App. P. 8(a). The Media-Intervenors' motion to this Court was for such a stay, or, in the alternative, for summary reversal. Because the Majority granted reversal, it considered the motion for a stay
. Between July 14, 2006, the date of the original jury selection order, and December 21, 2007, the date of the most recent jury selection order, multiple changes were made to the prescribed process, including: having the Court Administrator, as opposed to the Judge, sign the letter to prospective jurors following an objection by Wecht; having the jurors complete the forms in court, as opposed to at home; including in the District Court’s initial order (July 14, 2006) a notation that the proposed plan was subject to modification; opening up the process to the public by including in-court voir dire once the venire of 400 has been culled down to 40; releasing the jury questionnaires to the media following the trial; and accommodating the numerous questions submitted by the parties for inclusion in the questionnaire, which was developed during numerous conferences with the parties. In short, the facts do not support the contention that the District Court is so set in its procedures that contemplating modification would be unreasonable. There is nothing on the record or discussed in the Media-Intervenors’ brief that suggests the District Court would not have considered accommodating a request to further modify the procedures, had such a motion actually been made.
. The Majority suggests that the December 21 Order was final because the District Court ruled against the Media-Intervenors on their previous objections to the Order. This fact alone does not demonstrate that the District Court did not contemplate any modification to the December 21 Order; it only suggests that the District Court was unlikely to accommodate the specific modifications requested by the Media.
. The party asserting this Court's jurisdiction over an appeal or a motion always has the burden of demonstrating that such jurisdiction exists. See, e.g., Samuel-Bassett v. KIA Motors America, Inc.,
As the Majority correctly notes, the Government suggested that it was not going to contest the first prong of the Press-Enterprise II test. See Maj. Op., supra, at 230. However, as the Majority correctly notes, this failure to contest that issue is in no way dispositive of the issue before us: whether collateral order jurisdiction is appropriate. Id. at 230 n. 15. The Government’s response should not be read in such a way as to construe its failure to explicitly contest the issue as a concession. See Government’s Response at 8-9 (noting that "the order regarding jury selection may satisfy the first requirement of the collateral order doctrine”) (emphasis added). There are any number of reasons why the Government might choose not to contest this issue. Thus, although the Government's failure to explicitly brief this issue may be "notable,” as the Majority suggests, it is only mildly so.
. The fact that the media may be better able to report on trial proceedings were they given contemporaneous access to the names of the jurors, as opposed to being given access at the conclusion of the trial, is not a sufficient reason to support the Majority’s arbitrary line. See United States v. Doherty,
. The Majority quotes the Seventh Circuit's decision in Grove Fresh Distribs., Inc. v. Everfresh Juice Co.,
. In so holding, the Court analogized the right at issue in Flanagan to deprivations of the Sixth Amendment right to counsel, which, the Court noted, is fully reviewable even after the trial. See Flanagan,
. In fact, most of the cases cited by the Majority arise from the media’s post-trial challenges to the denial of access to information, including transcripts of proceedings that were initially closed. See, e.g., Antar,
. The Supreme Court has classified the rights that are "effectively unreviewable” on appeal, and therefore reviewable on an interlocutory basis, as those that would be "practically defeated]” were they not enforced pretrial, those that are "impossible” to vindicate on post-trial appeal, those that are "destroyed” by the commencement of trial, and those that would be "lost ... irreparably” once the trial commences. This language indicates just how important and fleeting a right must be in order to qualify under the collateral order doctrine. See Flanagan,
. If anything, the Majority opinion today will result in an avalanche of appeals, as the media can now argue that virtually any district court order that hinders their ability to report in the manner they choose is a violation of the First Amendment. Such a result will not only unduly burden this Court and delay the trial process, it will conflict with the Supreme Court's command that the collateral order doctrine is to be construed narrowly. As has previously been noted, we have already had to deal with numerous appeals and motions in this case.
. As noted in Part II, infra, I cannot join the Majority’s holding that the First Amendment right of public access to criminal proceedings necessarily includes a right to know the names of the prospective and trial jurors before the trial even begins.
. Although there are decisions of this Circuit that hold that certain restrictions on the right to access are appealable as final orders, those cases dealt with complete closures of the proceedings or a court’s refusal to unseal certain records. See, e.g., United States v. Smith,
. The Majority wisely notes that it is "reluctant to draw conclusions solely based on the [Supreme] Court's silence about a question that was not before it.” See Maj. Op., supra, at 235. Accordingly, the Majority refuses to infer that a tradition of openness existed. It then throws that caution to the wind and holds that, based on the Supreme Court’s general statements about the public nature of the voir dire process, none of which addresses the issue of whether the identities of jurors were known to the public, the names of jurors were historically known to the general public. See id at 235-36.
. In Sheppard, the Supreme Court admonished the trial court for not protecting the rights of the defendant by insulating the jury from prejudicial publicity. The Supreme Court noted the tremendous burden placed on the participants of the trial by the extensive media coverage. See Sheppard,
. The chairman of the subcommittee that studied these issues was Third Circuit Chief Judge Collins J. Seitz.
. The Committee's recommendations are also discussed in Edward Devitt, et al., 1 Federal Jury Practice and Instructions: Civil and Criminal § 4.05 (4th ed.1992).
. In particular, it is worth noting that at the origin of the jury system, jurors were selected based on their knowledge of the parties, their prior knowledge of the facts of the case, or their affiliation with one of the parties. See, e.g., Valerie P. Hans and Neil Vidmar, Judging the Jury 21-44 (1986) (discussing the evolution of the modern American jury and noting that "our present conception of justice and the role and functions of the jury have sharply changed over the centuries”); Paula DiPerna, Juries on Trial: Faces of American Justice 21-98 (1984) (discussing the evolution of the jury system and the voir dire process). In addition, during the early days of the jury system, jurors were selected from a much smaller area and subset of society. The changes of the composition and purpose of the jury system suggest that more recent experience is far more valuable in evaluating the role of the public in the judicial process than is earlier experience.
. Presumably, the Majority would have us believe that 28 U.S.C. §§ 1863(b)(7) and 1867(f) are arguably unconstitutional to the extent they restrict the media’s right to know the names of the jurors in all but the most unusual of cases. Furthermore, the Majority's holding calls into question the practices of numerous federal and state courts with regard to jury selection and suggests that all of those courts, including many of the district courts in this jurisdiction, are acting in contravention of the Constitution.
. In its discussion of the “experience” prong, the Majority cites the historical analy-ses in Press-Enterprise I and In re Baltimore Sun Co.,
. If anything, it would seem that knowing how the jury ruled would put the public in a better position to decide whether the judicial process functioned appropriately. Prior to the actual verdict, the public can only speculate about how the jurors will rule and whether something in their personal lives will affect their verdict.
. In discussing the benefits of openness, the Majority states that it “cannot reconcile the conclusion that the public has the right to see the process in which this power [to decide the fate of a defendant] is exercised ... and to see the process that selects those who will exercise the power ..., with the conclusion that the public has no right to know who ultimately exercises this power.” Maj. Op., supra, at 238. The question is not whether the public ever has a right to know who sits in judgment of a defendant in the vast majority of cases, however, but whether that right to know is only logically exercised, as the Majority suggests, prior to the commencement of the trial.
. The District Court’s concerns about juror harassment by the media are somewhat justified by the experience of the Delaware courts in Gannett:
Gannett, nevertheless, immediately published an article in the midst of trial highlighting the names and giving profiles of individ*259 ual jurors. Apparently, this was the first newspaper article in Delaware to publish such information while a trial was in progress. The article admitted that the "jurors value[d] their privacy highly and became extremely upset when a ... television crew followed some of them to lunch and attempted to film them eating.” Further, it stated that the jurors "avoid[ed] media, family members of the victims and defendant, and anyone else who appear[ed] recognizable, leaving local restaurants at the sight of a familiar face from the courtroom.” The article then continued with detailed profiles of the jurors, giving their names, hometowns, occupations, marital status, number and ages of their children, personal mannerisms and appearance. The latter portrayals were rarely flattering. Jurors were described as having a "stern expression”, a "stern demeanor”, “stylishly dressed”, "admits to a hearing problem”, "stout”, "mostly bald”, "short and round”, and "tall, balding and thin.”
Gannett,
I do not mean to suggest that the present Media-Intervenors would consider acting in the same manner as Gannett. Gannett merely demonstrates the possible disruption that pretrial disclosure of jurors’ names to the media may cause were the media to act inappropriately, and clearly the Media-Intervenors cannot presume to predict what other media sources may do.
. In fact, many of the cases cited by the Majority concern post-trial access to the identities of jurors, which suggests that logic does not require the arbitrary pre-empanelment line drawn by the Majority today. See, e.g., Press-Enterprise I, 464 U.S. at 512,
. Determining whether the "logic" prong mandates a First Amendment right of access to the names of the jurors prior to the trial is admittedly a speculative analysis that requires a balancing of the theoretical benefits and detriments of pre-trial release. However, such an analysis of the theoretical benefits and detriments is required by the Supreme Court. If anything, the foregoing analysis makes a strong case that the decision whether to release the names of the prospective jurors should be left to the measured discretion of the trial judge, who is in the best position to determine whether disclosure, in light of the particular facts of the case, will be more beneficial than detrimental to the public good.
. In their brief, the Media-Intervenors were quick to point out that Black was a district court decision, and thus entitled to little weight. As I have noted, however, almost all of the cases cited by the Media-Intervenors and the Majority deal with complete closure
For the same reason, the Delaware Supreme Court's decision in Gannett is not to be ignored. If anything, Gannett's facts and procedural posture are almost identical to those of the case before us. It is the most persuasive authority that has been brought to our attention, as it is the most on-point with the facts of the case before us.
. The Majority suggests that we review de novo whether the right of access includes a right to know the names of jurors. See Maj. Op., supra, at 234 (citing Antar,
. See also Scarfo,
. As the Supreme Court acknowledged, some parts of the judicial process may need to be temporarily shielded from the scrutiny of the media in order to protect the rights of the defendant or the rights of the jurors. See Press-Enterprise /,
.The Majority casually casts aside the District Court’s concern that the Media-Interve-nors want to publish stories about the prospective jurors prior to the empanelment of the jury. In light of the prevalence of the news media in modern society and the risk that jurors could be influenced by media coverage or hindered in their ability to be impartial, I would not be so cavalier in dismissing the District Court’s concerns. It is difficult to imagine that it would be possible to pick a fair, impartial, and willing jury that has no outside knowledge of the case if the news media camps outside of the jurors’ houses and questions them on their way to the courthouse. This is not to suggest that the Media-Intervenors’ motives are improper or that these particular media outlets will attempt to harass or write stories about these jurors. Nevertheless, other members of the media could do so. The District Court is likely correct, however: the media in general wants the names of the prospective jurors in order to publish stories about them. Such stories will arguably require contact between the Media-Intervenors, or other members of the media, and the prospective jurors, which runs the risk of further diminishing the pool of impartial prospective jurors in a case that has already received a great deal of local, state, and national media attention.
. Arguably, the number of pre-trial motions and interlocutory appeals, the prominence of the defendant, the intervention of the media in the matter, and the significant media coverage this case has already garnered suggest that this case is far from the usual, run-of-the-mill criminal prosecution.
. The Supreme Court discussed how jurors in another high-profile case were harassed:
As a consequence [of publishing the names and addresses of the prospective jurors],*265 anonymous letters and telephone calls, as well as calls from friends, regarding the impending prosecution were received by all of the prospective jurors.... [Njumerous pictures of the jurors, with their addresses, which appeared in the newspapers before and during the trial itself exposed them to expressions of opinion from both cranks and friends. The fact that anonymous letters had been received by prospective jurors should have made the judge aware that this publicity seriously threatened the jurors' privacy.
Sheppard,
. The Majority suggests, without qualification or explanation, that making the identities of the prospective jurors known to the media prior to empanelment of the jury might deter misrepresentation or reveal juror bias. Just as strong an argument can be made that allowing the media to report on the answers given by the individual jurors during jury selection would make those jurors less likely to be forthcoming in their answers. See In re South Carolina Press Ass’n.,
. Both the Majority and Dr. Wecht acknowledge that he has enemies that might be interested in seeing that he is found guilty. See Maj. Op., supra, at 242 ("Wecht made these statements [concerning the possibility that his enemies might attempt to influence the jury] in support of the opposite conclusion: that the jury should not be anonymous because the defense and the media must be able to ensure that Wecht's enemies do not enter the juiy pool without being detected.”). Although the Majority refers to this portion of Dr. Wecht’s brief in support of openness, the fact that those enemies might attempt to influence the trial does not logically require that the District Court must disclose the names prior to empanelment. Additionally, it would seem to be a common sense proposition that it is much harder for non-jurors to influence the jury if they do not know who the actual jurors are.
.As I noted in previous sections, almost all of the case law concerning the right of access deals with complete closure or post-trial denials of access to judicial records. See, e.g., Press-Enterprise I,
. Indeed, the Second Circuit suggested that although complete closure of the voir dire process was improper, more limited closure, including the withholding of the identities of the prospective jurors, would pass constitutional muster. See Stewart,
. And, of course, we would review such a decision for abuse of discretion. See United States v. Shiomos,
. In fact, the District Court considered and made findings related to every potential risk to the jury from overexposure that the Majority articulates in its opinion. See Maj. Op., supra, at 238 (“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.”). The Majority's disagreement with the District Court’s conclusions as to the dangers to the jury and the trial process is not by itself a sufficient reason to overturn the District Court’s jury selection procedures. Although I recognize that our standard of review is less deferential to the findings of the District Court where a constitutional right to access is raised, the Majority today not only fails to defer to the District Court’s evaluation of the circumstances surrounding its trial, it appears to ignore the District Court's judgment entirely-
. As I noted in Part1 II, supra, the First Amendment does not require that the District Court disclose the names of the prospective and trial jurors prior to the empanelment of the jury. We should reserve judgment on the question of whether such a right may exist after the conclusion of the trial, as that is not the question before us. As the District Court's order related to the conduct of the trial, a province left almost entirely to the control of the District Court, its actions should be reviewed to determine if there was an abuse of discretion. In light of the foregoing discussion, the reasons cited by the District Court are more than sufficient to uphold its discretionary decision to withhold the names of the prospective and trial jurors during the pendency of the trial. Thus, there was no abuse of discretion.
. The Media-Intervenors' motion asked this Court for summary reversal under I.O.P. 10.6 or a stay of jury selection. Accordingly, the briefs filed by the parties addressed and focused on those questions. Both Rule 10.6 and the rules governing stays have different standards and tests than does the question before us, however. There was no additional briefing specifically focusing on the issues of whether the right of access includes a right to force the disclosure of the jurors’ names and whether the right must be vindicated prior to the empanelment of the jury, as the Majority suggests. This Court would have benefited from more deliberation and either additional briefing at the direction of this Court or oral argument on these questions.
. See, e.g., Gall v. United States, - U.S. -,
. As we have noted, we should defer to the trial court judge's evaluation of the need to protect the jurors, as he is "on the scene and [has] a vantage point superior to ours.” See Shiomos, 864 F.2d at 18. The Majority recognizes as much, noting that “district judges are well-positioned to address these risks on a case-by-case basis, and in such cases, to make particularized findings on the record....” See Maj. Op., supra, at 239. Despite this recognition, the Majority affords the District Court almost no deference in its review of the need to protect the jurors in this case.
. At the very least, this Court should have deferred judgment on the issue of whether the Media-Intervenors are entitled to the names of the jurors until after the trial, at which point the interest in protecting the jurors is less persuasive.