Court finds press was improperly denied access to criminal trial

SEVENTH CIRCUIT–In mid-December, the U.S. Court of Appeals in Chicago (7th Cir.) unanimously reversed a lower court ruling denying press access to the criminal trial of James R. Berger, who had been indicted on charges of defrauding the Illinois Department of Public Aid.

The appellate court held that the First Amendment provides a presumption of access to court proceedings, and that in this case, media organizations should have been permitted to intervene in order to present arguments against limitations on their right of access.

Additionally, the court held that the lower court erred in failing to state a specific reason for placing documents under seal. According to the appellate court, a court must state a basis for its determination to deny the media access to certain materials during a trial. The court held that merely claiming that a document should be sealed due to substantial pre-trial and trial publicity is “an inadequate justification for sealing.” The case was therefore remanded so that the trial judge could review the entire docket and state on the record a description of every document that was sealed and either release it or explain a legitimate basis for keeping it under seal.

In October 1996, Berger was indicted on charges of bank fraud and money laundering. In November 1997, Illinois Gov. Jim Edgar was subpoenaed to testify as a defense witness at trial, and the parties agreed in a meeting with the judge that Edgar’s testimony would be given in a videotaped deposition that would be shown in court. In December 1997, the Associated Press, Chicago Tribune Company, Copley Press, Inc., and the Illinois Press Association objected to the arrangement and filed a petition to intervene in the criminal case. The trial court denied the petition and the deposition was taken without the media in attendance.

The appellate court found that the trial court acted within its discretion in permitting the governor to testify through a videotaped deposition. The court reasoned that a federal court rule permits videotaped testimony and that the media do not have a presumptive right of access to the videotape until it has been admitted in court.

Moreover, the court found that because Berger’s trial was highly publicized, there was a “substantial possibility” that news coverage of the governor’s deposition could have damaged Berger’s right to a fair trial.

However, the court held that although the trial court set forth reasons for permitting the governor’s testimony to be taken by videotape, it improperly placed under seal the discussion in chambers where the parties made an agreement to take the deposition by videotape. The court ordered the trial court judge to either unseal the transcripts of proceedings leading to the agreement or justify in writing his reason for maintaining the seal.

In January 1998, Gov. Edgar’s testimony was played in open court and the videotape of the deposition and a transcript were released to the public. Berger was ultimately acquitted of all charges. Following the acquittal, the media organizations moved for reconsideration on the petition to intervene and petitioned for the release of various documents that were filed under seal in connection with Berger’s trial. The lower court denied the motions, and the media groups appealed. (In re: Associated Press; Media Counsel: Joseph Thorton, Springfield)