Trial judge’s decision to seal hearing transcripts overturned

NINTH CIRCUIT–In mid-September a panel of the U.S. Court of Appeals in San Francisco (9th Cir.) unanimously held that a trial court improperly sealed transcripts of post-trial hearings in a criminal case involving fraud charges against former Arizona Governor Fife Symington.

During jury deliberations in May 1997, the federal district court in Phoenix conducted two hearings to investigate the reports of two jurors and Symington’s secretary that they had received threatening telephone calls. The trial court closed the hearings and sealed the transcripts because the hearings related to “security issues.”

The appellate court found the closure improper, stating, “It is difficult to image a circumstance in which maintaining public trust in the integrity of the judicial process is more crucial than in the criminal trial of a public official.” Legitimate public interest in the trial was increased by the combined actions of an elected official, conduct of law enforcement officials and “the comportment of the trial judge,” according to the court.

The court held that media access to the post-trial transcript would enhance both the basic fairness of the criminal trial and the appearance of fairness. “Without this transcript,” the court noted, “the public had no way of knowing that two of the jurors had received threats that might have affected — however negligibly — their assessment of the evidence against Symington.”

The court further stated that because there was no suggestion of misconduct on the part of the jurors, their privacy rights did not outweigh the media’s right of access to the transcript.

The court also held that the trial court failed to make specific factual findings to support the closure. According to the appellate court, there was no evidence that the release of the transcripts would endanger juror safety. Finally, the court failed to establish whether alternatives to closure would have protected the jurors’ privacy and safety interests.

The Phoenix Newspapers, Inc. and KPNX Broadcasting Co. filed the motion for access to the post-trial transcripts. The media parties argued that the court had failed to issue specific findings justifying closure of the hearing, but the trial judge rejected the argument.

The media organizations then filed motions seeking specific findings for the court’s closure and requesting that he transcript be unsealed. In September 1997, the court denied the motions. The organizations then sought a writ of mandamus from the federal appellate court in San Francisco, but before arguments were heard, the lower court released a portion of the transcript unrelated to the juror threats. In October 1997, Symington’s counsel moved to unseal the transcripts, with no objection by the government. The trial court thereafter released the transcripts. The appellate court decided the issue anyway, finding that the question was “capable of repetition while evading review.” (Phoenix Newspapers, Inc. v. U.S. District Court; Media Counsel: David Bodney, Phoenix)