NEWS MEDIA UPDATE · FOURTH CIRCUIT · Secret Courts · March 22, 2006
Evidence in Moussaoui trial must be released
March 22, 2006 · A federal judge’s order shrouding trial evidence from the press during Zacarias Moussaoui’s sentencing trial violated the public’s constitutionally guaranteed right to records filed in criminal proceedings, the U.S. Court of Appeals in Richmond (4th Cir.) ruled unanimously today.
Any exhibits that are provided in full to the jury considering whether the convicted September 11 plotter dies or spends the rest of his life in prison must be released to the media by 10:00 a.m. the next day, the three-judge appellate panel ordered.
“The trial exhibits go to the core of the government’s case and having copies of them more or less as they are will give the reporters the raw materials to do their job,” said Jay Ward Brown, an attorney for The Associated Press, one of nine media organizations that asked the appeals court last week to reverse U.S. District Judge Leonie M. Brinkema’s sealing orders.
Brinkema’s concerns about juror taint and administrative burdens failed to overcome the public’s First Amendment and common law rights to evidence that has been completely provided to the jury, the appeals court ruled.
“The concern for juror taint is not well taken regarding exhibits that have been fully published to the jury because it is unlikely that simply seeing the evidence again through a media publication will endanger Moussaoui’s right to a fair trial,” Chief Judge William Wilkins wrote for the appeals court. “Moreover, the district court has repeatedly instructed the jurors not to expose themselves to media coverage of the trial.”
The panel also rejected the lower court’s administrative concerns. “We do not doubt that the administrative burdens facing the district court are enormous,” Wilkins wrote. But “we cannot agree that the incremental rise in those burdens that would be caused by providing access justifies the denial of access until after the completion of trial, to all documentary exhibits that have been admitted into evidence and fully published to the jury.”
Had Brinkema’s order been allowed to stand, other judges might have been able to use it to clamp down on access in other cases, Brown said.
“The Fourth Circuit decision put back in the bottle a genie that the district court might have released that administrative burden and the potential for juror taint are sufficient for denying public access,” he said.
The panel concluded that Brinkema correctly refused to release trial evidence that had not been provided to the jury, or only given in part to the jury because the administrative burdens involved in providing piecemeal access to partially admitted exhibits is considerable. She also properly denied access to transcripts of conversations between herself and lawyers made in open court but outside the presence of the jury until after the trial ends because bench conferences are traditionally not public, the panel ruled.
The panel regarded as moot the media’s argument that Brinkema’s sealing orders were invalid because she failed to give the media notice and an opportunity to be heard, reasoning that Brinkema allowed the media to raise its concerns before the trial began.
After Brinkema ordered Feb. 14 that neither exhibits nor bench conference transcripts would be released until the trial ends, eight media companies and The Reporters Committee for Freedom of the Press asked the judge to reverse her decisions, citing the First Amendment and common law rights of access to criminal proceedings. Brinkema denied the media’s request March 17, the same day that the coalition asked the appeals court to vacate her orders.
Other members of the media coalition are Cable News Network, the Hearst Corp., the New York Times Co., NBC Universal, The Washington Post, USA Today and the Star-Tribune.
Moussaoui’s sentencing trial began March 6. He pleaded guilty in March 2005 to several charges that carry the death penalty, and is the only person to be criminally charged in connection with the September 11 attacks.
(In re: Associated Press; Defense counsel: David A. Schulz, Levine Sullivan Koch & Schulz, Washington, D.C.) — SB