In Re: Hearst-Argyle

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2001
• Docket: 00-31201
• Status: Published

Opinion

_______________________

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 00-30953 cons/w 00-31042 and 00-31179 _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES HARVEY BROWN, also known as Jim Brown; ALFRED FOSTER SANDERS, III, also known as Foxy Sanders; EDWIN W. EDWARDS, also known as The Governor; ROBERT A. BOURGEOIS, also known as Bob Bourgeois, DAVID JUDD DISIERE, RONALD R. WEEMS, also known as Ron Weems,

Defendants-Appellees,

THE TIMES PICAYUNE PUBLISHING CORPORATION; ASSOCIATED PRESS; CAPITAL CITY PRESS; HEARST-ARGYLE TELEVISION, INC.; THE LOUISIANA PRESS ASSOCIATION,

Appellants.

____________________

00-31284

Plaintiff-Appellee, versus

JAMES HARVEY BROWN, Etc; ET AL,

Defendants,

JAMES HARVEY BROWN, also known as Jim Brown; EDWIN WASHINGTON EDWARDS, also known as The Governor; RONALD R. WEEMS, also known as Ron Weems,

TIMES PICAYUNE PUBLISHING CORPORATION; CAPITAL CITY PRESS, the Advocate, Saturday and Sunday Advocate, the “News Media”,

_________________________

Appeals from the United States District Court for the Middle District of Louisiana _________________________

_______________

00-31069 _______________

In Re: THE TIMES-PICAYUNE PUBLISHING CORPORATION; THE ASSOCIATED PRESS; CAPITAL CITY PRESS, INC., (The Advocate, Saturday and Sunday Advocate); HEARST-ARGYLE TELEVISION INC. (WDSU-TV); THE LOUISIANA PRESS ASSOCIATION,

Petitioners,

2 00-31201 _______________

In Re: HEARST-ARGYLE TELEVISION INC. (WDSU-TV); CAPITAL CITY PRESS (The Advocate, Saturday and Sunday Advocate); THE TIMES-PICAYUNE PUBLISHING CORPORATION,

Petitioners.

Petitions for Writ of Mandamus to the United States District Court for the Middle District of Louisiana _________________________ May 1, 2001

Before JOLLY, JONES and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

By appeals or, in the alternative, petitions for a writ

of mandamus, various “News Media”,1 challenge measures used by the

court to protect juror anonymity in a much-publicized criminal

trial. Those measures included certain orders implementing an

anonymous jury order, and the district court’s refusal to grant the

News Media’s motion for post-verdict access to juror information.

Finding that a portion of the district court’s orders supplementing

its anonymous jury order was an unconstitutional prior restraint,

we reverse in part. We reject, however, the News Media’s requests

1 The “News Media” include Times-Picayune Publishing Corporation, the Associated Press, Capital City Press, Inc., Gannett River States Publishing, Inc., Hearst-Argyle Television, Inc. (WDSU-TV), WGNO Inc., WWL-TV Inc., Emmis Television Broadcasting L.P. (WVUE-TV) and the Louisiana Press Association.

3 that the district court be ordered to release the jurors’

identifying information and juror questionnaires.

I. BACKGROUND

Former Louisiana Governor Edwin Edwards and several

others, including state Insurance Commissioner Jim Brown, were

indicted for various federal crimes allegedly committed in

connection with a “‘sham settlement’ that derailed a $27 million

lawsuit threatened by the state against David Disiere, president of

Cascade Insurance Co., a failed automobile insurance carrier.”

United States v. Brown, 218 F.3d 415, 418 (5th Cir. 2000). The

indictment included numerous counts of conspiracy, mail and wire

fraud, insurance fraud, making false statements, and witness

tampering. The trial at issue in this appeal was the second of

three federal prosecutions involving former Governor Edwards. In

the first trial, Edwards and several other defendants were

convicted in June, 2000, of charges based on bribery to obtain a

riverboat gambling license. The third trial, also involving

bribery allegations, was held in March, 2001. The jury convicted

Cecil Brown on seven out of nine counts. Edwards was an unindicted

co-conspirator in that case and appeared as a witness for Brown.2

Trial on this second indictment began on September 18,

2000. On October 11, Edwards and Shreveport lawyer Ronald Weems

2 A fourth related trial for federal tax evasion by former Edwards aide Andrew Martin will commence in July, 2001.

4 were acquitted of all charges. Brown was acquitted on most charges

but convicted on seven counts of making false statements to an FBI

agent. The district court threw out two of these counts.

A. Pretrial Proceedings

On March 31, 2000, the United States filed a motion for

the impanelment of an anonymous jury. The defendants opposed the

motion. On July 13, the district court continued the trial until

September 18, 2000, and it granted the Government’s motion for an

anonymous jury.

The News Media, as intervenors, requested on July 26 that

the district court reconsider its approval of an anonymous jury.

In the alternative, the News Media asked for access to the names,

addresses, and places of employment of the jurors upon entry of the

verdict, to the extent that the information might be withheld

during trial.

The district court issued reasons for granting the

anonymous jury motion on August 9. Stating that anonymity has long

been an important element of the jury system, the court reasoned

that its order “merely increased the degree of anonymity by

withholding the jurors’ names, addresses, and places of

employment.” The court found that three of five non-exclusive

5 factors3 that the Fifth Circuit has stated may justify impaneling

an anonymous jury were present in this case. First, there have

been charges that the defendants have attempted to interfere with

the judicial process or witnesses through witness tampering,

attempting to bribe a judge, attempting to illegally terminate a

federal investigation and influencing a court-appointed special

master. Two of the defendants have pled guilty to witness

tampering, another to misprision of a felony. In addition, Edwards

was convicted in the first trial of interfering with Louisiana’s

judicial and administrative processes for licensing riverboat

casinos.

Second, the district court stated that an anonymous jury

is appropriate when defendants face a lengthy incarceration and

substantial monetary penalties, as they did here. Third, this case

has received extensive publicity, enhancing the “possibility that

jurors’ names would become public and expose them to intimidation

and harassment.” Krout, 66 F.3d at 1427. In addition, in the

previous Edwards trial, “despite extensive and expensive

precautions by the United States Marshals Service to protect the

3 As discussed in United States v. Krout, the five factors are: “(1) the defendants’ involvement in organized crime; (2) the defendants’ participation in a group with the capacity to harm jurors; (3) the defendants’ past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants will suffer a lengthy incarceration and substantial monetary penalties; and, (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment.” 66 F.3d 1420, 1427 (5th Cir. 1995).

6 anonymity of the jury, certain members of the media aggressively

followed, identified, and contacted jurors in violation of the

anonymous jury order. . . .” Therefore, the district court

concluded, “the media’s intense interest in gaining access to the

jurors’ names, addresses, and place of employment strongly counsels

the Court to protect the panel from foreseeable harassment by the

media and others.” The district court continued: “Any attempts by

the media or others to interfere with this order will not be

tolerated.”

On August 10, the district court denied the Media’s

motions for reconsideration of the anonymous jury order and

deferred ruling on the media’s alternative motion for access to

jury information upon entry of verdict but stated that “[i]n the

meantime, the media is ordered not to attempt to circumvent this

Court’s ruling preserving the jury’s anonymity.”

The News Media promptly appealed, challenging: (1) the

district court’s August 9, 2000 Order to the extent it stated that

“any attempt by the media or others to interfere with this Order

will not be tolerated”; (2) the district court’s August 10, 2000

minute entry stating that “the media is ordered not to circumvent

this Court’s ruling preserving the jury’s anonymity”; and (3) the

district court’s minute entry of August 10, 2000 indefinitely

deferring the News Media’s request for post-verdict access to the

jurors’ names, addresses, places of employment and the juror

7 questionnaires.4 The News Media do not, however, challenge the

substantive merit of the anonymous jury order.

B. The Trial and Its Aftermath

Voir dire began on September 18, 2000. After the

district court closed portions of the jury voir dire, the News

Media sought a writ of mandamus ordering the district court to open

the voir dire proceedings to the public and the press and to

transcribe immediately and release any portion of voir dire held

behind closed doors. The district court entered its reasons for

closing the voir dire on September 19, 2000. On October 3, the

News Media filed a notice of appeal regarding the same matter.

On October 11, before the verdict was announced, the

district court told the jurors that it was not going to release

their identities unless they wished to waive or release themselves

from anonymity. The trial judge also informed the jurors that they

did not have to speak to anyone about the case and that, absent

court order, they could not be interviewed about the jury

deliberations, but that they could discuss their general reactions

to the trial. When asked by the district court whether they wished

to waive anonymity, none of the jurors indicated a desire to do so.

However, the judge stated that if any juror later sought to be

4 On September 5, the News Media filed a mandamus petition challenging the same orders. This court consolidated the writ of mandamus with the aforementioned appeals.

8 released from the confidentiality agreement, the court would put an

order in the record identifying the person.

The News Media immediately sought a post-verdict writ of

mandamus ordering the district court to release the names,

addresses and places of employment of the anonymous jurors and the

completed juror questionnaires that were sealed during the trial.

In the alternative, the News Media also filed a notice of appeal.

On October 16, the court granted a motion to unseal the

transcript of the closed voir dire.5 The district court denied the

News Media’s motion for access to juror questionnaires, however, on

the grounds that the questionnaires assured the jurors that all

information would remain confidential and that the court would not

breach this confidentiality agreement. The court offered to

release the questionnaires of consenting jurors, but it again

refused to release jurors’ names, addresses, and places of

employment (without their consent). Further, the court repeated

that if any juror requested to be released from the confidentiality

agreement, the court would place an order in the record identifying

the juror. The News Media have appealed and sought mandamus to

reverse these orders.

5 The district court’s order granting the motion to unseal the transcript of the closed voir dire renders moot the mandamus petition of September 18, 2000.

9 The court went to extraordinary lengths to preserve the

integrity of the jury system and conduct a fair trial in the face

of relentless publicity, some of it generated by the parties

themselves. Eager media have entertained the citizens of Louisiana

and beyond with nonstop coverage of the current prosecutions of

Louisiana’s colorful ex-Governor. The court’s protective measures

in this trial included: (1) a gag order on all trial participants;6

(2) an anonymous, but not sequestered jury; (3) closure during

trial of the jury selection process; (4) the August 9 and 10 orders

that admonished against any attempt to circumvent or interfere with

the anonymous jury order; and (5) post-verdict orders that

(a) continue, until each individual juror requests otherwise, the

confidentiality of juror identity and questionnaires, and

(b) shroud the jury deliberations. These orders have not

noticeably interfered with vigorous press coverage, except to limit

inquiry into the background and makeup of the jury. Among all

these orders, the News Media appealed the (now-moot) closure of

jury selection, the non-circumvention orders and the post-verdict

juror identification orders.7 They argue in addition that the

6 The gag order on trial counsel, defendants and potential witnesses in this second Edwards trial was upheld after an appeal by defendant Harvey Brown in United States v. Brown, supra. The News Media appeared as amici in that appeal. 7 Following oral argument, on October 6, 2000, this court dismissed without prejudice, on grounds of prematurity, that portion of the News Media’s appeal/mandamus petition challenging the indefinite deferral of their motion for post-verdict access to juror information. The issue is again before us on appeal

10 cumulative effect of all the protective orders denied public access

to the trial. Each of the News Media’s issues deserves close

attention.

II. DISCUSSION

Because this case involves constitutional and other legal

questions, we review the district court’s orders de novo. See

American Civil Liberties Union of Mississippi, Inc. v. Mississippi,

911 F.2d 1066, 1069 (5th Cir. 1990). “Specific factual findings of

the district court on the issue are, of course, entitled to review

under the clearly erroneous standard.” Id.

A. The District Court’s Orders that the Media Not Circumvent Its Anonymous Jury Order8

after the court entered its post-verdict juror identification orders. 8 At the outset, we must consider whether the non-circumvention order is moot and whether our jurisdiction is defeated. Two conditions must be satisfied in such a case for jurisdiction to be valid and the order considered not moot: “‘(1) the challenged action [must] in its duration [be] too short to be fully litigated prior to its cessation or expiration, and (2) there [must be] a reasonable expectation that the same complaining party would be subjected to the same action again.’” Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904 (1979)(quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349 (1975). Considering an order prohibiting the public and press from a pretrial suppression hearing, the Supreme Court concluded in Gannett that it had jurisdiction to review such a controversy and that the case was not moot. Id. The Court stated that a pretrial hearing was too short in duration to permit full review and that an order denying access to a transcript would nearly always be lifted prior to the completion of appellate review. The Court also concluded that it was reasonable that the petitioner, a newspaper publisher, would be subject to similar closure orders in the future. Id. Likewise, in Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791 (1976), the Court reviewed an order restraining the news media from publishing or broadcasting accounts of confessions or admissions. The Court held that the controversy was “capable of repetition” because the defendant’s conviction could be reversed and the trial court could issue “another restrictive order to prevent a resurgence of prejudicial publicity before [the defendant’s] retrial.” Id. at 546, 96 S.Ct. at 2797. Because similar circumstances exist here, we likewise conclude that the controversy is neither moot nor our jurisdiction defeated. This is a

11 This is the first time an appellate court has been asked

to consider how far a trial court may go, consistent with the First

Amendment, in enforcing an order on juror anonymity. The News

Media contend that the district court’s orders amounted to a prior

restraint, “freezing” their publication of information about the

jurors and juror conduct that might arise during trial. Nebraska

Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803

(1976). The government responds that since the court’s orders

intended no more than to prevent publication of information from

which the jurors could be identified, they fell within the court’s

broad discretion to manage the trial.

Between the parties’ positions lies an area of agreement:

the court could determine that maintaining jury anonymity was

“controversy . . . capable of repetition under circumstances in which each repetition may evade review.” United States v. Chagra, 701 F.2d 354, 358 (5th Cir. 1983). In addition, our appellate jurisdiction lies under the collateral order doctrine. “Congress has limited the jurisdiction of this Court to ‘final decisions of the district courts.’” U.S. v. Brown, 218 F.3d 415, 420 (5th Cir. 2000). Although the district court’s orders are not final orders, the Supreme Court has recognized a collateral order exception to this final order requirement because “certain decisions of the district court are final in effect although they do not dispose of the litigation.” Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920, 925 (5th Cir. 1996). Such orders may be appealed “if they (1) are conclusive, (2) resolve important questions that are separate from the merits, and (3) are effectively unreviewable on appeal from the final judgment in the underlying action.” Brown, 218 F.3d at 420. Courts have applied this doctrine to appeals of orders affecting the media’s First Amendment rights. See, e.g., United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir. 1977). The challenge to the district court’s orders meet these criteria because: (1) the orders were conclusive “with no further consideration . . . contemplated,” Gurney, 558 F.2d at 1206; (2) they involve important questions unrelated to the merits of the case; (3) and the issues would otherwise essentially be unreviewable on appeal from the final judgement.

12 necessary to prevent extraneous harassment and intimidation of

jurors. It could enter an order preventing court personnel from

disclosing, or the media from eliciting official court records that

would identify the jurors. The News Media have conceded these

points by not appealing the anonymous jury order itself. We must

assume that that order, unusual as it is, was both fully supported

in the record and fully enforceable against parties within the

court’s control.9

The media assert, however, that the non-circumvention

orders threaten also to proscribe independent newsgathering, e.g.

any story not derived from confidential court records, that might

deal with jurors. While this is a self-justifying argument, to the

extent that the media never properly sought clarification of the

orders,10 it is not without force. The language of the court’s

orders, which restricts “interference” and “circumvention”, is

ambiguous. Alternatively, it may connote “not going around” either

the substance of the order, i.e. by destroying juror anonymity, or

9 Compare 28 U.S.C. § 1863(b)(7) (a jury plan “may . . . permit . . . [the court] to keep these [jurors’] names confidential in any case where the interests of justice so require.”). 10 We decline to consider self-serving correspondence that the media sent the trial court in an effort to clarify the judge’s non-circumvention orders. Neither such correspondence, nor the court’s alleged oral interpretation of the order, is part of the record. The motion to supplement the record to include this correspondence is denied.

13 the integrity of court procedures, i.e. by obtaining confidential

court data.

The latter interpretation poses no problem. While the

news media are entitled to receive, investigate and report on all

public proceedings involved in a trial, the right to gather news,

much like other first amendment rights, is not absolute. See In re

Express News Corp., 695 F.2d 807, 809 (5th Cir. 1982) (citing Zemel

v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281 (1965)). It does not

“guarantee journalists access to sources of information not

available to the public generally.” Id. (citing Branzburg v.

Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658 (1972)); see also

United States v. Gurney, 558 F.2d 1202, 1208 n.9 (5th Cir.

1977)(“‘When representatives of the communications media attend

trial they have no greater rights than other members of the

public.’”) (quoting Estes v. Texas, 381 U.S. 532, 584, 85 S.Ct.

1628, 1654 (1965) (Warren, C.J., concurring)). As this court has

held, a trial court may refuse to allow the media to inspect

documents not a matter of public record, including jurors’ names

and addresses; such orders are distinct from prior restraints.

Gurney, 558 F.2d at 1210. To the extent the orders warned the

media not to publish information illegally gleaned from

confidential court files, it was justified. See Florida Star v.

14 BJF, 491 U.S. 524, 534, 109 S.Ct. 2603, 2609 (1989).11 Similarly,

although the media generally have a right to publish information

that they obtain, “[n]either the First Amendment nor the Fourteenth

Amendment mandates a right of access to government information or

sources of information within the government’s control.” Houchins

v. KQED, Inc., 438 U.S. 1, 15, 98 S.Ct. 2588, 2597 (1978).

If the court intended the former connotation, however,

then it could be tricky to determine how much information revealed

in an independently gathered news article might compromise juror

anonymity. Nevertheless, a violation of the orders would subject

the press to sanctions. The orders thus plausibly constituted a

11 In Florida Star v. BJF, 491 U.S. 524, 109 S.Ct. 2603 (1989), the Court held that imposing damages on a newspaper for publishing the name of a rape victim violated the First Amendment. In so doing, however, the Court refused to hold broadly that truthful publication may never be punished consistent with the First Amendment. Id. at 532, 109 S.Ct. at 2609 (“Our cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily.”). Rather, the government “retains ample means of safeguarding significant interests upon which publication may impinge.” Id. at 533, 109 S.Ct. at 2609. This includes protecting anonymity. To the extent sensitive information rests in private hands, the government may under some circumstances forbid its non- consensual acquisition. . . . To the extent sensitive information is in the government’s custody, it has even greater power to forestall or mitigate the injury caused by its release. The government may classify certain information, establish and enforce procedures ensuring its redacted release, and extend a damages remedy against the government or its officials where the government’s mishandling of sensitive information leads to its dissemination. Florida Star, 491 U.S. at 534, 109 S.Ct. at 2609. In Florida Star, the imposition of damages was unconstitutional in part because the government itself made the information available to the media.

15 prior restraint because it gagged the press from reporting some

kinds of independently gathered stories pertinent to the trial.12

Prior restraints on publication by the press are

constitutionally disfavored in this nation nearly to the point of

extinction. To avoid redundancy in the case reports, we forbear

repeating the background and caselaw that compel this conclusion

under the First Amendment. See generally Nebraska Press Ass’n v.

Stuart, 427 U.S. 539, 96 S.Ct. 2791 (1976); Brown, supra. But

vital as it is to protect freedom of the press, especially in

reporting about the criminal justice system,13 the rights of the

press may collide with a criminal defendant’s equally significant

Sixth Amendment right to a fair trial. “In general, a prior

restraint (usually directed at the press) will be upheld only if

the government can establish that ‘the activity restrained poses

either a clear and present danger or a serious and imminent threat

to a protected competing interest.’” Brown, 218 F.3d at 424

(citing Levine v. U.S. Dist. Court, 764 F.2d 590, 595 (9th Cir.

1985) (citations omitted)). In Nebraska Press, the Supreme Court

examined a restraint against pretrial publication of certain

12 “A prior restraint . . . has an immediate and irreversible sanction. If it can be said, that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint ‘freezes’ it at least for the time.” Nebraska Press, 427 U.S. at 559, 96 S.Ct. at 2801.

13 See generally Sheppard v. Maxwell, 334 U.S. 333, 86 S.Ct. 1507 (1966).

16 evidence inculpating the defendant. The state courts had intended

to stanch excessive publicity that might taint a small town’s jury

pool. The Court examined the evidence before the trial judge to

determine “(a) the nature and extent of pretrial news coverage; (b)

whether other measures would be likely to mitigate the effects of

unrestrained pretrial publicity; and (c) how effectively a

restraining order would operate to prevent threatened danger.” 427

U.S. at 562, 96 S.Ct. at 2804. The district court’s non-

circumvention orders in this case must be examined by the Nebraska

Press criteria.

In Nebraska Press, the court’s gag order was first

examined in light of the goal of minimizing prejudicial pretrial

publicity. In this Edwards prosecution, by contrast, the court was

trying to prevent harassment and intimidation of venire members and

jurors by the press and the defendants. Evidence supporting the

court’s fears of an imminent and serious threat from both these

sources was abundant. Two of the defendants had been charged in

the indictment and pled guilty to witness tampering and another to

misprision of a felony. This particular prosecution involved

charges of interfering with state judicial processes through

attempted bribery of a judge, attempting illegally to terminate a

federal investigation, and influencing a court-appointed special

master. In the first Edwards prosecution, allegations that the

former Governor and his son bugged the office of an FBI agent had

17 been severed for separate trial. Edwards was convicted in the

first trial of interfering with Louisiana’s judicial and

administrative processes for licensing riverboat casinos. During

the first trial, the media had identified and pursued jurors and

attempted to interview them despite an anonymity order. Repeated

allegations of juror misconduct were raised in the first trial,

necessitating inquiries by the court concerning possible outside

influences on those jurors. In this prosecution, the media

zealously sought to access sealed information. Finally, when

Governor Edwards was tried on criminal charges several years ago,

there was evidence of possible attempts to influence jurors through

their relatives. The district court could well conclude that the

integrity and independence of the jury process were at risk.

Protecting against these unique threats to the integrity

of the jury process posed a significant challenge in addition to

and different from the relatively well-charted field of excessive

pretrial publicity. To a greater extent than in Nebraska Press,

then, the trial court could justifiably find a clear and present

danger to the integrity of the jury process if juror anonymity were

compromised.

Because the fair trial threat in this case originates

from different sources from that in Nebraska Press, the evaluation

of less restrictive means, the second of the Supreme Court’s

criteria, must also differ. In Nebraska Press, the Court

18 enumerated several alternatives that would minimize the effect of

excessive publicity short of gag orders on the press. Those

alternatives included imposing gag orders on trial participants,

granting a change of venue, delaying the trial, or sequestering

jurors. In Brown, this court has already upheld a gag order on the

trial participants in the second Edwards trial, while emphasizing

the determined efforts of defendants and all counsel to circumvent

it.

For purposes of combating direct intimidation by the

press or the defendants, however, the only obvious alternative to

enforcing juror anonymity seems to be sequestration. Because the

media did not challenge the anonymous jury order, they should not

be able to back into the issue with a collateral attack. And in

any event, “sequestering the jury imposes well-known and serious

burdens.” Brown, 218 F.3d at 431. Moreover, juror anonymity and

sequestration are remedies for overlapping but distinct problems.14

Sequestration protects the jury from trial publicity, extraneous

influences and harassment. See e.g., Mayola v. State of Ala., 623

F.2d 992, 1002 (5th Cir. 1980); United States v. Harris, 458 F.2d

14 The ABA Standards for Criminal Justice Fair Trial and Free Press states, in its section about the conduct of a criminal trial when problems relating to the dissemination of potentially prejudicial materials are raised, that “[a]s an alternative to sequestration in a case where there is a significant threat of juror intimidation during or after the trial, the court may consider an order withholding public disclosure of jurors’ names and addresses as long as that information is not otherwise required by law to be a matter of public record.” ABA Standards, § 8-3.6(b).

19 670, 674 (5th Cir. 1972)(“The purpose of sequestering is, the cases

agree, to protect the jury from interference.”). Anonymity

protects, in addition to the jurors, the venire persons and the

jurors’ families from influence exerted by outside parties. See

Krout, 66 F.3d at 1427 (“‘[T]he use of an anonymous jury is

constitutional when, 'there is strong reason to believe the jury

needs protection' and the district court 'tak[es] reasonable

precautions to minimize any prejudicial effects on the defendant

and to ensure that his fundamental rights are protected.'")(quoting

United States v. Wong, 40 F.3d 1347, 1376 (2d Cir. 1994)). To

insist on a sequestered, but not anonymous, jury in this case would

not necessarily have prevented undue influence being brought to

bear through harassment of jurors’ families. Sequestration is an

imperfect alternative to address the court’s particular concerns

about juror intimidation in this case.

The third factor discussed in Nebraska Press was the

efficacy of the prior restraint. The Supreme Court demonstrated

that the Nebraska courts’ order preventing publication of certain

inflammatory information was overbroad, unenforceable, and unlikely

to fulfill its purpose. On examination, this is the Achilles heel

of the district court’s noncircumvention orders. In the instant

case, the gag order is generally, though not fully, enforceable,

since acts that would compromise a juror’s anonymity would almost

20 surely take place within the court’s jurisdiction, no matter where

publication occurred.15 But the district court could not punish

every potentially offending publication outside its jurisdiction.

Moreover, the court’s orders are overbroad, based on the ambiguity

of the terms “circumvent” and “interfere” and the various

gradations of information that, if published, might conceivably

reveal a juror’s identity. The orders may also ultimately fail to

achieve their purpose; restraining the press from independent

investigation and reporting about the jurors would not necessarily

deter defendants who have already manifested a willingness to

tamper with court processes. Just as obviously, however, enforcing

a prior restraint on the press would make it more difficult for the

defendants to obtain information compromising juror integrity.

Without a prior restraint on these overeager media representatives,

juror anonymity might not be enforceable at all.

With considerable doubt, we conclude that under the

standards of Nebraska Press, particularly the requirement that a

court’s prior restraint order be narrowly efficacious, the

noncircumvention orders were unconstitutional insofar as they

interdicted the press from independent investigation and reporting

about the jury based on facts obtained from sources other than

15 There is of course the possibility that a member of the media might innocently, and without knowledge of the court’s noncircumvention order, publish information that violated the anonymity of jurors, but we need not hypothesize so far for purposes of this case.

21 confidential court records, court personnel or trial participants.

Our doubt is based on the uncertainty whether the press would have

cooperated with an anonymous jury order whose enforceability was so

limited. Can it be that the First Amendment prevents a court from

fully enforcing orders it strongly believes necessary to protect

jurors, the jury system and the defendant’s fair trial rights?

Since the Supreme Court has not in recent history upheld any limit

on the press,16 we decline to be the first court to do so. We also

hope that the press understand that their enormous power under the

First Amendment should be tempered with respect for the judicial

system that protects the press as well as criminal defendants and

that inherent in such respect there should be deference to the

spirit of the court’s anonymous jury order.

B. The Order Denying Post-Verdict Access to Juror Information

The News Media assert that there is no compelling reason

justifying continued “secrecy” about the jurors. In particular,

they submit that the district court’s reason for not releasing

jurors’ names and addresses - its promise of confidentiality - is

insufficient, and the “severe restriction” on the News Media’s

ability to contact jurors is not narrowly tailored to prevent a

substantial threat to the administration of justice. Since the

judicial system is presumptively open, access to information about

16 Apart from dicta in Florida v. BJF - supra.

22 jurors cannot be denied absent extraordinary circumstances. We

disagree with this characterization of the court’s reasoning, the

News Media’s interpretation of the scope of the court’s order, and

their reading of caselaw.

Tensions between First Amendment rights and the right of

an accused to trial by an impartial jury frequently develop in a

“sensational” case like this. Nebraska Press, 427 U.S. at 551, 96

S.Ct. at 2799. While a denial of access to confidential court

information may hamper newsgathering, this burden is thought to be

incidental when strong governmental interests are involved.

Gurney, 558 F.2d at 1209. Ensuring that jurors are entitled to

privacy and protection against harassment, even after their jury

duty has ended, qualifies as such an interest in this circuit.

United States v. Harrelson, 713 F.3d 1114, 1116 (5th Cir. 1983);

Express News, 695 F.2d at 810; Gurney, 558 F.2d at 1210 n.12

(“[T]he judge was following a well-established practice when he

refused to publicly release the jury list, which included the

names, addresses, and other personal information about the jurors.

Such protection of the privacy of the jurors was clearly

permissible, and certainly appropriate in a trial which attracted

public attention as this one did.”).17 The judge’s power to prevent

17 We note that in Press-Enterprise Co. v. Superior Court of California, the Supreme Court held that a trial court could not constitutionally close all but three days of six weeks of voir dire to protect privacy interests of prospective jurors without considering alternatives to closure and articulating

23 harassment and protect juror privacy does not cease when the case

ends. Harrelson, 713 F.2d at 1117; see also United States v.

Edwards, 823 F.2d 111, 120 (5th Cir. 1987)(“[A]lthough post-trial

restrictions on news gathering must be narrowly tailored, the

jurors are entitled to privacy and protection from harassment even

after completing their duties.”).

The News Media preliminarily complain that the district

court did not issue findings that support continued juror

anonymity. Specific findings are not required in this circuit

where the reasons for the court’s decision are obvious and

compelling. In a case where a district court placed restrictions

on proposed interviews with discharged jurors, this court stated

that there was no need for the district court judge to hold

hearings18 before issuing such an order, especially in a highly

findings to support the broad order. 464 U.S. 501, 510, 104 S.Ct. 819, 824 (1984). The Court, however, was concerned with the broad sweep of the closure order and stated that the trial judge could seal “such parts of the transcript as necessary to preserve the anonymity of the individuals sought to be protected.” Id. at 513, 104 S.Ct. 825-26. Applying Press-Enterprise, in Edwards this court stated that “the Press I Court instructed that redaction of juror names or portions of the transcript may constitute a reasonable alternative to safeguard jurors from unwarranted embarrassment and yet preserve the competing interests served by disclosure.” Edwards, 823 F.2d at 120. Likewise, this court rejects the News Media’s argument that “‘minor discomfort’ of jurors does not warrant the level of solicitude afforded the jurors in Press I,” finding instead that the “usefulness of releasing jurors' names appears to us highly questionable.” Id.

18 The ABA Standards for Criminal Justice Fair Trial and Free Press state that a court may issue a closure order denying access to specified portions of judicial proceedings or related documents only after the parties and the public are provided reasonable notice and an opportunity to be heard. ABA Standards, § 8-3.2(b)(1). In addition, the standards state that the court should

24 publicized case. Harrelson, 713 F.2d at 1117. “A federal judge is

not the mere moderator of a jury trial; he is its governor for the

purpose of insuring its proper conduct.” Id. The trial court has

broad discretion, “‘based on law and on his own and common

experience,’ over aspects of the trial concerning the ‘handling of

jurors,’ e.g. sequestration, juror access to information, and

‘harassment of jurors.” Edwards, 823 F.2d at 116 (quoting

Harrelson, 713 F.2d at 1117); see also Gurney, 558 F.2d 1202, 1209

(“Within this discretion, therefore, the district judge can place

restrictions on parties, jurors, lawyers, and others involved with

the proceedings despite the fact that such restrictions might

affect First Amendment considerations.”). The district court’s

order maintaining a level of post-verdict juror anonymity must be

make specific findings that: “(A) unrestricted access would pose a substantial probability of harm to the fairness of the trial or other overriding interest which substantially outweighs the defendant’s right to a public trial; (B) the proposed order will effectively prevent the aforesaid harm; and (C) there is no less restrictive alternatively reasonable available to prevent the aforesaid harm.” The Reporter’s Key to the standards makes clear that the principle of access extends to jury selection, although it does not indicate whether this section applies to the release of information regarding anonymous jurors. The Reporter’s Key accompanying that section of the standards governing the selection of a jury, Standard § 8-3.5, discusses whether a court may restrain the press from knowing and/or publishing the names and addresses of jurors. The Reporter’s Key suggested that “[c]ourts may withhold jurors’ names and addresses upon particularized findings that ‘the interests of justice so require.’” However, “[t]he mere desire of jurors to maintain privacy is not enough to support a decision to withhold names and addresses.” Reporter’s Key to ABA Standard § 8- 3.2, http://www.abanet.org/media/nclm. This court’s cases have afforded greater discretion to the district court than the ABA Standards recommend. Although this court takes these recommendations into consideration, we are not bound by them and have previously declined to follow them. See United States v. Capo, 595 F.2d 1086, 1092 n.6 (5th Cir. 1970) (refusing to adopt an ABA Standard regarding jurors exposed to pre-trial publicity because it would require that this court invoke its supervisory powers where the trial court took appropriate measures).

25 placed in context. It rests on an earlier promise of anonymity,

which itself was grounded in well-documented threats by the media

and the defendants to jurors’ privacy and independence. The

drumbeat of publicity surrounding the Edwards prosecutions

continues to this day. Requiring the court to recite such details

and repeat obvious facts would be a meaningless exercise.19

Turning to the scope of the court’s order, the News Media

overlook that this court refused, in Harrelson, to hold that a

district judge abused his discretion by banning repeated requests

for post-trial juror interviews where jurors expressed a desire not

to be interviewed. Harrelson, 713 F.2d at 1118. There is little

practical difference between the Harrelson order and the district

court’s order in the instant case. Here, the district judge polled

the jurors before releasing them from service to ask whether they

wished to have their names made public. None desired to waive

anonymity. The judge informed the jurors that if anyone later

wanted to have his identity released, he could do so. Both orders,

though slightly different in mechanism, have the same effect; they

protect the jurors from unwanted harassment. As this court has

observed:

19 The cases from other circuits on which the News Media rely for a rule requiring specific findings were invariably those where the trial courts made no effort to support their orders, and the case circumstances did not justify them. See U.S. v. Antar, 38 F.3d 1348 (3d Cir. 1994); In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990); but compare U.S. v. Three Juveniles, 61 F.3d 86 (1st Cir. 1995) (upholding federal statute allowing closure of federal prosecutions involving juveniles).

26 [c]ommon sense tells us that a juror who has once indicated a desire to be let alone and to put the matter of his jury service behind him by declining to be interviewed regarding it is unlikely to change his mind; and if he does, he is always free to initiate an interview. The court’s order does no more than forbid nagging him into doing so.

Id. at 1118. Moreover, the district court’s order does not ban all

media interaction with the jurors, it just allows the jurors to

signal their willingness to submit to media contact.20

Significantly, at least one juror was interviewed following the

conclusion of the trial.

The News Media rely principally on this court’s decision,

In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982), to

challenge the district court’s post-verdict order limiting jury

contact. In Express-News, we vacated a district court rule that

categorically forbade interviews of any juror concerning the

deliberations or the jury verdict, except by leave of court granted

upon good cause shown. Id. at 807. Such a restriction could not

be imposed on newsgathering “unless it is narrowly tailored to

prevent a substantial threat to the administration of justice.”

695 F.2d at 810.

20 While the News Media assume that the post-verdict juror anonymity permitted by the court’s order violates their right of access to juror identities, what they are really complaining about is the enhanced difficulty of contacting former jurors to interview them. The court’s order does not mandate anonymity; it permits it.

27 Express-News marks only the beginning of this court’s

series of cases on post-verdict access to jurors, however.

Recently, this court upheld an order limiting access to jurors.

See United States v. Cleveland, 128 F.3d 267, 269 (5th Cir. 1997).

There, the judge instructed the jurors that they had no obligation

to speak to anyone about the case. In addition, she instructed

that “absent a special order by me, no juror may be interviewed by

anyone concerning the deliberations of the jury. I also instruct

you that the lawyers and the parties are not to attempt to question

you without an order from me.” The order was held sufficiently

narrow because it applied only to interviews with the jurors

themselves and only concerning their deliberations, but did not

apply to the verdict itself. Id. at 269. The order did not

foreclose “questions about a juror’s general reactions,” id., nor

did it “prevent jurors from speaking out on their own initiative.”

Id. Also in contrast to Express-News, the order did not impose

restrictions on post-verdict interviews and then condition those

restrictions by requiring “those who would speak freely to justify

special treatment by carrying the burden of showing good cause.”

Id. at 270 (quoting Express-News, 695 F.2d at 810). That the order

was unlimited in time was not in itself dispositive, because we

previously upheld similar restrictions in Harrelson, supra.

Likewise, the fact that the order applied equally to jurors willing

28 to speak and to those desiring privacy was not decisive. Cleveland

was distinguishable from Express News because it attracted a great

deal of media coverage. Id.

The district court’s order denying the request for juror

identifying information and questionnaires in this case is

analogous to the order upheld in Cleveland. The order is

sufficiently narrow. It has no requirement for a showing of good

cause for conducting post-verdict interviews. It merely states

that the court will not release juror information without the

juror’s consent. The judge affirmatively asked the jurors whether

they wished to relinquish their privacy.21 Any juror may, at any

time, voluntarily decide to relinquish his confidentiality. The

only restriction placed on such interviews is the court’s

instruction that jurors may not be interviewed concerning juror

deliberations absent a special order from the judge. This is

consistent with our understanding that “[c]ompelling governmental

interest[s] in the integrity of jury deliberation require that the

21 In In the Matter of Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990), this court denied a petition for writ of mandamus under a similar set of circumstances. There, a newspaper requested that this court direct the district court to conduct voir dire proceedings in public, attended by the press. We recommended that the district court, “rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, . . . inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately . . .” Id. at 206. The judge here followed a similar practice by asking the jurors whether they wished to be released from their confidentiality agreements.

29 privacy of such deliberations and communications dealing with time

be preserved.” Gurney, 558 F.2d at 1210-11.

According to this circuit’s established caselaw,

protecting jurors from post-verdict harassment and invasions of

privacy is a legitimate concern. The measures used by the district

court, while at the outer limit of permissible restrictions, were

narrowly tailored to prevent real threats to the administration of

justice, not just in this case but in the subsequent related

prosecutions. If jurors voluntarily waive their anonymity and

consent to interviews on matters other than jury deliberations, so

be it. They need not become unwilling pawns in the frenzied media

battle over these cases.

The News Media finally contend that they do not desire

simply juror interviews but the basic information revealed by the

jurors’ names, addresses and still-confidential questionnaires.

Juror anonymity, in other words, should have ceased when the trial

ended. No caselaw requires this result, and the question appears

closely tied to the rationale for initially convening an anonymous

jury, an order they did not appeal. Threats of intimidation and

harassment do not necessarily end with the conclusion of trial. In

these prosecutions, several post-verdict motions have assailed

jurors’ conduct; without continuing anonymity, jurors would remain

vulnerable to abuse by those acting for the defendants. There may

be cases where a district court would abuse its discretion by

30 refusing to revoke an order of juror anonymity post-trial, but this

is not one of them.

C. The Synergistic Impact of Closure Orders

Although the News Media failed to challenge the initial

jury anonymity order, they nevertheless assert that the closure and

gag orders designed to protect the integrity of trial, even if not

individually unconstitutional, cumulatively deprived the public of

the constitutional openness required in our criminal trials. These

orders included (a) the gag order on trial participants, upheld by

this Court in Brown, supra; (b) the sealing of the juror

questionnaires; (c) the initial closure of most of the voir dire

hearings; (d) the noncircumvention orders preventing identification

during trial of the jurors; and (e) the confidentiality orders

protecting the jury after trial. Under the circumstances of this

case, they did not.

Very real threats were posed by excessive media coverage,

by the trial participants’ eagerness to manipulate the News Media,

and by the risk of jury harassment and taint. The judge was

empowered and entitled to counteract each of these threats in order

to assure a fair trial. With the sole exception of the overbroad

noncircumvention orders, her actions were appropriate. And as for

the public perception of the trial’s fairness, it cannot have been

harmed. Except for a blackout on the jurors’ identities, media

31 coverage of the trial was extensive. The public knew what was

going on. They knew that the jury rendered split verdicts,

exonerating all but defendant Brown and convicting him only on some

of the counts. The public can perceive that the jurors were

neither in the prosecution’s pocket, nor, because of their

anonymity, could they have been improperly influenced by the

defendants.22 The result of the trial seems to belie any contention

that the public’s rights to a transparent criminal justice system

were unconstitutionally compromised.

III. CONCLUSION

For the foregoing reasons, we first conclude that the

district court imposed an unconstitutional restraint to the extent

it ordered the News Media not to interfere with or circumvent the

anonymous jury order by wholly independent, legal newsgathering.

We reverse the district court’s orders to that extent and, in light

of our disposition, deny the mandamus petition on this matter.

Second, the district court’s order of October 16 granting the News

Media’s motion to unseal the transcript of the closed voir dire

renders the News Media’s petition for writ of mandamus moot on that

issue and we deny it without prejudice. Third, we affirm the

court’s post-verdict orders maintaining juror confidentiality,

22 In commenting on how juror anonymity might have affected the public’s perception of the openness and fairness of the trial, we do not reach the direct question whether anonymity was justified. That question is not before us.

32 limiting the release of juror information, and placing restrictions

on juror interviews.

The orders of the district court are AFFIRMED in Part,

REVERSED in Part. Petitions for writ of mandamus are DENIED.