NEWS MEDIA UPDATE · FOURTH CIRCUIT · Secret Courts · March 14, 2006
Media seek access to Moussaoui trial evidence
March 14, 2006 · A coalition of nine news organizations has asked the U.S. Court of Appeals in Richmond (4th Cir.) to order a federal district court to release evidence in the death penalty trial of confessed September 11 plotter Zacarias Moussaoui. The unusual request comes one month after the organizations sought to intervene in the case.
The media seek exhibits entered into evidence and transcripts of conversations between U.S. District Judge Leonie M. Brinkema and lawyers made in open court but outside the presence of the jury. Brinkema on Friday affirmed her Feb. 14 orders that neither exhibits nor bench conference transcripts will be released until the trial ends. She did not give the public notice or a chance to be heard on the matter before her initial orders.
With Moussaoui’s sentencing trial under way, the news organizations said they had no choice but to ask the appeals court for a writ of mandamus, which would order the U.S. District Court in Alexandria, Va., to release the requested materials.
Writ petitions are granted only in extraordinary situations. “We think this is just such a situation because the district court entered orders sealing what is the core of the record in this trial — the trial exhibits — until at least the end of trial, without notice to the public or an opportunity to be heard, which is contrary to governing law,” said attorney Jay Ward Brown of Levine Sullivan Koch & Schulz, which represents the media organizations.
Shrouding access to trial exhibits is not only unconstitutional, it hampers journalists, Brown said, noting that “exhibits are the raw materials from which reporters can convey an accurate description of trial proceedings to the public.”
Brinkema’s orders cited the practical difficulty of making the information available considering the “volume and character of the anticipated evidence.” She also said that jurors typically are allowed to see exhibits only when they begin deliberating, and that unveiling bench conference transcripts “increases the possibility of a juror seeing something he or she should not see.”
When Brinkema did not rule on a Feb. 17 request from the media coalition to vacate her orders, the group, which includes The Reporters Committee for Freedom of the Press, sought a ruling from the Richmond appeals court four days into the trial. As that was being filed Friday, Brinkema issued a decision denying the media’s request. “Neither the court staff nor counsel have the time or resources to provide copies of exhibits while the trial is in progress,” she wrote.
The orders should not be allowed to stand, the media group argued, because the court unconstitutionally deprived the public of notice and an opportunity to be heard on the issue before ruling. Moreover, “it cannot be that the ‘fundamental’ common law right to inspect and copy judicial records, and the concomitant First Amendment right of access to the record in a judicial proceeding can be completely set aside in favor of administrative convenience.”
Besides, releasing the evidence the day it has been admitted in trial would not taint the jurors because the evidence would be publicly released only after the jury learned about it, and the jury is ordered to avoid media accounts of the trial while empaneled, the media argued.
Judge Brinkema and lawyers for the government and Moussaoui, the only person to be charged in connection with the September 11 attacks, have until Friday to respond to the media’s request to the appeals court.
Media attorneys anticipate the court to rule as early as Monday.
“The Fourth Circuit is always reluctant to issue a writ to a district court judge because it’s an extraordinary rebuke,” Brown said. “In the past, what the Fourth Circuit has done is restate clearly what the public access rights are and encourage the lower court to comply.
“The news organizations have no desire to make [Judge Brinkema’s] life more difficult than it already is — she faces an extraordinarily challenging task in directing this trial — but public access is most crucial in complicated cases like these, precisely because it’s such an important case to the country,” Brown said.
The media coalition includes The Associated Press, Cable News Network, the Hearst Corp., the New York Times Co., NBC Universal, The Washington Post, USA Today, the Star-Tribune, and The Reporters Committee.
Attorneys for the government and Moussaoui could not be reached.
(In re: The Associated Press: David A. Schulz, Levine Sullivan Koch & Schulz, Washington, D.C.) — SB