Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 1 of 13 PageID 7777 IN THE UNITED STATES DISTRICT COU . FOR THE SOUTHERN DISTRICT OF WEST VI GINI BECKLEY DIVISION retirees: L. ereett UNITED STATES or AMERICA A {38? WW i a Seethern Etietrtet et Weet Vite?me Plaintiff, V. Criminal Action No.: (Hen. lrerie Berger, District ridge) DONALD L. BLANKENSHIP, Defendant. THE CHARLESTON AND WEST VIRGINIA PUBLIC BROADCASTING, MOTION TO INTERVENE FOR THE- PURPOSE OF RESPONDING IN OPPOSITION TO REQUEST FOR IN CAMERA VOIR DIRE QUESTIONING OF POTENTIAL JURORS AND MOTION FOR CONTEMPORANEOUS PUBLIC ACCESS TO ALL EXHIBITS ADMITTED AT TRIAL AND FULLY PUBLISHED TO THE JURY Charleston Newspapers d/b/a The Clzarlastrm and West Virginia Public- Broadcastirig, Inc. (collectively ?the News Media interveriers") pursuant to the First Amendmerit to the United States Constitutiom the common law and other wellmrecognized legal grounds, respond in opposition to Defendant?s request fer in camera voir dire of prospectivejurors made in his September 85 20?: 5 Proposed Veir Dire Procedures and Questiens. The News Media Intervenors further request that the Court direct the Clerk to make available to the public a copy of all trial exhibits within twenty four hours after they have been admitted and fully published to the jury. As the Court is aware these News Media. Intervene-rs and others previously moved to intervene in this matter [Doc. 30], asserting their First Amendment rights ot?aecess. After this Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 2 of 13 PageID 7778 Court allowed the intervention,1 and, inter cilia, granted in part and denied in part. the News Media lnterveners? request for access to sealed court documents [Doc 63]. the News Media lnterveners sought a Writ of Prohibition from the cert of Appeals again asserting their First Amendment rights of access to all ?lings in this case. On March 5, the Court of Appeals issued the requested writ. [Docs 162]. In a per curiam Order setting forth its reasoning for issuing the writ, the Court of Appeals affirmed the News Media lnterveners? First Amendment rights of access to ?lings in. criminal cases: ?The public enjoys a quali?ed right of access to criminal trials. see Richmond Newspapers v. Virginia, 448 US. 555, 580 (1980); pretrial proceedings, see Press?mEnIer. Co. v. Super. CL, 478 US. 1. id 0986) and ?documents submitted in the course of a trial.? including documents filed in connection with a motion to dismiss an indictment and other pretrial filings. In re Time 182 F.3d 270, 271 (4th ir.l999); see also In. re Charlotte Observer, 88.7.. F.2d at 852. Where the right. of an accused to a fair trial is at stake, the public will not be denied access absent ?speci?c findings demonstrating that. ?rst. there is a substantial probability that the defendant?s right to a fair trial will be prejudiced by pdblicity that closure would prevent. and, second. reasonable alternatives to closure cannot adequately protect the defendant?s fair trial rights." Pressm-Eirlerprise 478 US. at l4. Having carefully reviewed the record, although we commend the district court's sincere and forthright proactive effort to ensure to the maximum extent possible that Blankenship?s right to a fair trial. before an impartial jury will be protected, we are constrained to conclude that the order entered here cannot be sustained. See id. See also In re 168 F.3d 134., l39?~?40 (4th. Cir.l999): In re Russell, 726 EThe Court granted the News Media lnterveners? Motion to Intervene at the. December 17. 2014 hearing and inernorialized that ruling in its January 7. 2015 Order. [Doc 63 at The intervention was granted ?for the limited purpose of entertaining the Moi/ants? substantive Id. While The News Media lnterveners believe the scope of the Court?s previous permission to intervene inay encompass the instant response, if the ourt determines it does not. for the same reasons stated in the original Motion to intervene and supporting Memorandum. incorporated herein by reference, the News Media lnterveners seek leave again to intervene for the limited purpose of opposing Defendant request for in cox-nerd voir dire questioning of potential jurors. and for contemporaneous access to all exhibits Within twenty four hours after they are both admitted and fully published to the jury at trial. -7- Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 3 of 13 PageID 7779 F.2d 1007, 10l0 (4th Cir.l984); Nebraska Press Ass?ri ii. Stuart, 427 US. 539, 562 0976).? In re The Wall St. Journal, No. 35 H79, 2015 WL 9254753 at l?2 (4th Cir. Mat. 5, 2015). ARGUMENT Defendant. asks this Court to conduct in camera and conceal from public all voir dire questioning of potential jurors. Acceding to Defendant?s request would infringe on the News Media and the Public?s important constitutional arid common law rights of? open access to criminal trial proceedings and secret this important part of the criminal trial process from public View.2 The News Media lnterveoors oppose Defendant?s request to hide such important court proceedings from the public. Similarly/5 the News Media litters/errors request contemporaneous access to trial exhibits once they have been admitted into evidence at trial and fully published to the jury. The News Media lntewenors have made this request. to the Clerk's of?ce and understand that is the Clerk?s of?ce typically does not release trial exhibits for public View until the conclusion of a trial. The issue of contemporaneous media access to criminal trial exhibits was addressed and decided favor of such access by the Court of Appeals for the Fourth Circuit in lit re Associated Press, 1.72 . App'x l. 5 (4th Cir. 2006) ("As for documentary exhibits that have been admitted into evidence and fully published to the jury, we conclude that the district court abused its discretion 2?The process ot?juror selection is itself a matter of importance. not simply to the adversaries but to the criminal justice system. . . . the process of selection ot?jusors has presumptively been a public process with exceptions only for good cause shown.? Press Enter. Co. v. Superior Court of'Cl'zlifori/zia, Riverside (Virus, 464 US. 501 505., 104 S. Ct. 819. 8.21. 78 L. Ed. 2d 629 (1984'). Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 4 of 13 PageID 7780 in denying access. ?Once evidence has become known to the members of the public through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction.? United States v. Myers (In re Naf?l Broad. 635 F.2d. 945, 952 (2d A THE FIRST AMENDMENT PROVIDE-S THE PUBLIC WITH A RIGHT OF ACCESS TO THE CRIMINAL TRIAL, INCLUDING TO ATTEND THE VOIR DIRE QUESTIONING OF THE POTENTIAL JURORS THAT DEFENDANT REQUESTS OCCUR IN SECRET As explained. by the Court of Appeals, the First Amendment provides an af?rmative right of public access to virtually all judicial proceedings and documents involved in a criminal prosecution. ?The value of openness lies in the fact that" people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness ofthe criminal trial and. the appearance of fairness so essential to public confidence in the system.? Richmond Newspapers, Inc. v. Virginia, 448 at. 569-?57l, 100 at 28233824." Press Enter. Co. v. Super-"tor Court of?Califomia, Rit?dl?b?ide Cntyi, 464 US. 50L 508, 104 S. Ct. 819, 823, 78 L. Ed. 2d 629 (1984)} 3The constitutional access right extends to ?documents submitted in the course of a trials? In re Time Inc, 182. F.3d at 27l. the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret deny this outlet and frustrate the broad public interest; by contrast? public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly r4- Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 5 of 13 PageID 7781 The. concealing of voir dire questioning Defendant seeks is inconsistent with this constitutional right of access. See, Richmond Newspapers v. Virginia, 448 US. 555, 580- 58l (1980) (recognizing a constitutional right of access to criminal trials); Press?Enrel-prise Co. v. Superior Court, 478 US. l, 13 (l 986) (recognizing constitutional right of access to pretrial proceedings) ("Press?Enterprise in criminal proceedings, ?openness enhances both the basic. fairness of the criminal trial and the appearance of fairness so essential to public con?dence in the system." Press~Enn-2r19risc Co. 19. Superior Comm 464 US. 501., 508 (1984) ?l?his is so because ?[plublic con?dence. cannot long be maintained where important judicial decisions are made behind closed doors and then announced in. conclusive terms to the public, with the record supporting the court?s decision sealed from public View." Gunner! Co. v. DePnsquala 443 US. 368% 429 (1979) (Blackmun, ., dissenting in part); see also Nebraska Press Ass v. Stuart, 427 US. at 587 (1976) (Brennan, 3., concurring) ("[slecrecy of judicial action can only breed ignorance and distrust of courts and. suspicion concerning the competence and impartiality of judges?). The Supreme Court also has stressed that other ?crucial prophylactic aspects of the administration of justice cannot function in. the dark; no community catharsis can occur if justice is 'done in a corner [or] in any covert manner.?? Richmond Ncm-ispapel?a 448 US. at 571. These selected. See Uni/(36] Sirich V. Hosting US. mm, l03 1974, 1979, 76 L.Ed.2d 96 (1983):, Morris v. Sloppy}, US. ma. l03 loll). l6l7. 75 lowlide (l983)." Press Enrer. Co. Superior Court ofCalifori-iia, Riverside Citrus 464 US ., 509k 104 S. Ct. 819., 823a 78 L. Ed. 2d 629 (1984). Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 6 of 13 PageID 7782 goals can not be achieved without public access to the records used by judges in. perfon?ning their Article functions. ??[Tlhe circumstances under which the press and public can be barred from a criminal triai are iirnited; the State?s justi?cation in denying access must be a weighty one. Where the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governn?iental interest, and is narrowly tailored to serve that interest." Globe Newspaper Co. v. Superior Court, 457 US. 596, 606~07. 102 2613, 73 LEde 248 (1982'). "The presumption of openness may be overcome only by an overriding interest based on ?ndings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine Whether the closure order was properly entered." Press Enter. o. v. Superior Court of?Colifomia, Riverside Cam, 464 US. 50L 509 10., 104 Ct. 819629 (1984). ?Even with findings adequate to support ciosnre, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests ot?the prospective jurors that the trial court?s orders sought to guard Absent consideration. of alternatives to ciosure, the trial court could not constitutionally close the wir IdMore recently, in Presley v. Georgia, 558 US. 209, 213 14, l30 S. Ct. 721, 724, 175 L. Ed. 2d 675 (201 Oh the United States Supreme Court reiterated the Public?s right to access to criminal trials, including voir dire, and the standard that applies to consideration of closing the courtroom a6- Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 7 of 13 PageID 7783 ?[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government?s interest in inhibiting disclosure of sensitive information." Waller, 467 US, at 45, 104 221.0. ?Such circumstances will be rare, however. and the balance of interests must be struck with special care." [Iv-id. Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial: "Tlhe party seeking to close the hearing rnust advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.? Id, at 48, 104 2210. The Supreme Court was abundantly clear that trial courts must make every effort to accommodate public attendance at criminal trials: ?Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.? 1d, 558 US. at 215. in the case at bar. Defendant?s rationale for in camera questioning during voir dire focuses almost entirely on his speculation that potential jurors may respond to voir dire questioning in a way that it should, ?occur outside the earshot and presence of other jurors [or in a way that] ?insulates the jurors from one another?s prejudicial continents.? [Doe at The 5The. Defendant appears to suggest that the jury questionnaires are "confidential," and therefore any "follow?up? questioning should be confidential. Courts employ written jury questionnaires, or ?voir dire questionnaires," as a substitute for oral yoir dire, every court. that has confronted the issue has ruled that the presumptive First Amendment right of access extends to jury questionnaires. See In re Access to Jury Questionnaires, 37 Add 879, 886 (DC. 20l2) (?Every court that has decided the issue has treated jury questionnaires as part of the mir dire process and thus subject to the presumption of public access") (citing [a re South Carolina Press Ass 946, F.2d l037, 1041 (4th Cir. 1991), and collecting other cases). The US Supreme Court has held that this "presumption of openness may be overcome only by an overriding interest based on ?ndings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press~EnIer79rise I, 464' US. at 510. Before ordering closure or sealing, a court must articulate ??ndings specific enough that a reviewing court can determine whether the closure order was properly entered," and consider alternatives that would be sufficient to protect against the harm closure or seal would avoid. at. SlO?l l. Because no such ?ndings have been made here, and no alternatives considered, and no record. rnade, the juror questionnaires can not be confidential or concealed. from public view. -7, Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 8 of 13 PageID 7784 only other basis Defendant offers as a rationale to defeat the Public's constitutional right of open access to the courtroom during this criminal trial is that he believes in cunrerrz questioning would be more ?efficient.? [Doc MW at As for Defendant?s assertion that in earnercz voir dire is necessary in the event ?some members of the venire will express strong opinions about Mr. Blankenship and this case,? this is speculative and limited, and does not justify the wholesale closure ofvoir dire from public access. However, even if this concern was shown to be valid, it still would not justify in camera voir dire because it does not consider alternatives to closure. For example, ifindividualized voir dire is deemed necessary, it still can he done in open court, in public, as the rest of the venire could be in a different room in the courthouse certainly there are other ways that questioning can occur in open court while out of the earshot and presence of other potential jurors. in other words? there clearly are less restrictive alternatives to Closing the courtroom or conducting voir dire in camera that can be used that would allow voir dire to be conducted in public and out of the earshot and presence of other potential jurors. As to Defendant?s secondary assertion that. it would be more "efficient" to conduct voir dire in camera that is not necessarily true and certainly hasn?t been proved to a level anywhere near that required to overcome the Public's right of access to criminal trials. Therefore that purported rationale is insufficient to justify in camera voir dire questioning of jurors. Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 9 of 13 PageID 7785 THE FIRST AMENDMENT INCLUDES A RIGHT OF ACCESS TO THE JUDICIAL RECORDS FILED IN CONNECTION WITH A CRIMINAL PROCEEDING, INCLUDING TRIAL EXHIBITS THAT HAVE BEEN ADMITTED INTO EVIDENCE AND PUBLISHED TO THE JURY As noted above, Pursuant to the First. Amendment, The News Media Intervenors request contemporaneous access to all trial exhibits that are (I) admitted into evidence, and (2) fully published to the jury. It is Meyants? understanding that the Clerk?s of?ce in this District typically withholds trial exhibits from public access until a. trial ends. 'H'owever, because the First Amendment right of access to judicial records is a right of contemporaneous access the Court should instruct the Clerk to make available to the Public a copy of all trial exhibits within twenty four hours after they have been admitted into evidence and fully published to the jury. The Constitution?s public access right is a right ofconiempomneous access. Seer e. Pub. {117mm 749 F.3d at 272 (underscoring the right of contemporaneous access); In re Charlotte Observer, 882, F.2d at 853 (recognizing a right to immediate access to ongoing proceedings). Even a ?minimal delay? harms "the value (it?tipenness? itself: . . . whatever provision is made for later public disclosure." [do 882 F.2d at 856. It is a "misapprehension and undervaluation of the core first amendment value at stake? to postpone even briefly public access to judicial reeords. Id. The Court oprpeals has thus regularly ?rejected pleas by litigants? to seal documents until the trial is over. Pub. Cizi'zem 749 F.3d at 272.; see also In re Application and Affidar-iffbr a Search War-"ram, 923 F.2d 324, 331 (4th Cir. 1991) (rejecting request to seal record until after trial), ?The right ofpublic access springs from the First Amendment and the common-law tradition that court proceedings are presumptively open to public scrutiny. Va. Dcp?l of?Siut/e -9- Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 10 of 13 PageID 7786 Police v. Wash. Post. 386 F.3d 567, 575 (4th Cir.2004). Under the First Amendment, ?access may be restricted only ifciosure is ?necessitated by a compelling government interest? and the deniai of access is "narrowly tailored to serve that interest.?" Doe v. Pub. Citizen, 749 F.3d 246; 266 (4th Cir. 2014'). ?The common?law presumptive right of access extends to all judicial documents and records and the presumption can be rebutted only by showing that ?countervailing interests heavily outweigh the public interests in Id, 749 F.3d at 265? The issue of the contemporaneous access to trial exhibits admitted and published to a. jury was addressed by the Court of Appeals in the In re Associated Press, 172 F. App?x l, 5 (4th Cir. 2006). In that case news media organizations sought a writ of mandam us after the trial court in the criminal trial of accused September 1 bombing participant Zacharias Moussaoui ordered that no trial exhibit would be made ayaiiable for public review until the trial was complete. Id. The news media companies had moved to intervene before the trial court, which motion was granted. 1d. at 3. Following, the trial court?s order refusing contemporaneous access to trial exhibits, the Court of Appeals granted the writ of mandamus follows: ?As for documentary exhibits that have been admitted into evidence and fully published to the jury, we conclude that the district court abused its discretion in denying access. ?Once evidence has become known to the members of the public through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction.? United States v. Myers (In re tht?l Broad. 635 F.2d 945i 952 (:2d The Court oprpeals directed that the district court make such trial exhibits available for public review by i0100 am. the day after the exhibit is published to the jury? directing that: Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 11 of 13 PageID 7787 ?all documentary exhibits that have been admitted into evidence and fully published to the jury. With respect to such exhibits therefore, we grant the petition for a writ ofrnandainus and direct the district court to adopt a mechanism that will provide the media with one copy of. each documentary exhibit that has been admitted irtto evidence and fully published. to the jury. This copy should be made available as soon as is practically possible, but in no event later than 10:00 am. on the day after the exhibit is published to the jury, or, in the case of an exhibit that is published to the jury in parts, after all parts of the exhibit have been published." In re Press; 172 F. App?x l, 6 (4th Cir. 2006). The News Media lntervenors request the same procedure directed by the Court of Appeals in the foregoing case be adopted here." (?it is The News Media lntervenors understanding that. the Clerk?s office in the Eastern District of Virginia in the Moussaoui criminal case instead created an internet wed site where all admitted published exhibits, including electronic exhibits such as Video and audio tiles were posted for public View by 10:00am. the day after they were admitted and fully published to the jury. Certainly that procedure would meet the standards of the First Amendment and be most appreciated. -11- Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 12 of 13 PageID 7788 CONCLUSION The News Media lntervenors request the Coort allow them to intervene for the limited purposes ofresponding in opposition to the Defendant?s request that. vo?r dire questioning of the jury ye'eire be conducted. in camera, and so that they may request contemporaneous access to all exhibits that have been admitted into evidence and published to the jury. For all the reasons stated above, the Court should deny Defenant?s request to conduct voir dire questioning of the jury in camera, and direct the Clerk to provide to the media contemporaneous aceess to all exhibits that have been admitted into evidence and published to the jury. THE CHARLESTON and WEST VIRGINIA PUBLIC BROADCASTING INC, lnterveners, By Calms e! (W Bar N3. 5837?) . BA MCGINLEY SIML NS, PLLC 604 Virginia St, E. Charlestom WV 25301 (304) 342-Gl 33 Telephone 304) 342?4605 (fax) . awn rm . corn Case 5:14-cr-00244 Document 395 Filed 09/30/15 Page 13 of 13 PageID 7789 CERTIFICATE OF SERVICE I, Sean P. McGinley. hereby certify that on this 30th day ot?September, 2015, I served this THE CHARLESTON GAZETTE-MAIL AND WEST VIRGINIA PUBLIC. BROADCASTING, MOTION TO INTERVENE FOR THE PURPOSE OF RESPONDING IN OPPOSITION TO REQUEST FOR IN CAMERA VOIR DIRE QUESTIONING OF POTENTIAL JURORS AND MOTION FOR CONTEMPORANEOUS PUBLIC ACCESS TO ALL EXHIBITS ADMITTED AT TRIAL AND FULLY PUBLISHED TO THE JURY by facsimile on the following counsel of record: R. Booth Goodwin, II, Esq. Steve R. Ruby, Esq. United States Attorney PO. Box 1713 Charleston. WV 25301 Fax: 2304?3476104 Wiliiam W. Taylor, Ill, Esq. Miles Clark, Esq. Eric R. Delinsky, Steven Herman. Esq. Zuckerman Speeder, LLP 1800 Street, Suite 1000 Washington, DC 20036?5807 Fax: 2(I2m822?8l06 Alexander Marcia, Esq. Spiimam Thomas Battle, PLLC PO. Box 273 Charleston, WV 25321 Fax: 304-340?3801 James A. Walls, Esq. Spilman Thomas Battle, PLLC 48 Dooley Streea Suite 800 PO. Box 6l5. Morgantown, WV 265m Fax: 304~291~7979 . {Mme a: Sagan PgMeG-inley, quire WV Bar $836) (REMIX ?13-