Restriction on access to voir dire transcripts upheld

SECOND CIRCUIT–In mid-March, a federal appeals court in New York City (2nd Cir.) affirmed a lower court decision restricting press access to transcripts of closed voir dire proceedings in the wire fraud trial of boxing promoter Don King until a jury is empaneled. The court also sealed transcripts of similar proceedings from King’s 1995 fraud trial, which ended in mistrial.

The appellate panel found that the ruling by federal District Court Judge Lawrence McKenna in Manhattan complied with the U.S. Supreme Court’s standards for closure of a courtroom during an important phase of a criminal proceeding.

The court found that Judge McKenna’s order was narrowly tailored to protect juror privacy, which was necessary to ensure the “candor” of potential jurors during voir dire — where potential jurors are questioned about biases and conflicts that would interfere with their service as a juror — and that no other alternatives would suffice.

The court rejected a press claim that the trial court was required to ascertain from each juror in open court whether that juror wished to be heard in chambers to assert privacy concerns as to sensitive matters. The court said that the judge was entitled to conduct individual juror questioning in the absence of the press, in light of the widespread, negative publicity concerning King and the racial aspect of the publicity.

The court said that the District Court’s concern was prompted by “press excess,” demonstrated by a newspaper’s comparison of King to John Gotti, the convicted head of a major crime family, and reports that King was playing the “race card” during the voir dire process.

No members of the news media attempted to attend voir dire in King’s first trial, and did not seek access until after the transcripts of these proceedings had already been sealed and the trial had ended in a mistrial. King sought to close voir dire proceedings for his retrial in October 1997.

The order was challenged by The New York Times, the New York Daily News, The New York Post, and Newsday. (United States v. Don King; Media Counsel: Slade Metcalf, Manhattan)