Opinion
Case No. 02-CR-10-K
February 6, 2002
ORDER
Now before the Court is the "Government's Motion to Maintain Seal." [Doc. No. 12]. In connection with its motion under 18 U.S.C. § 4241 (a) requesting a hearing to determine the competency of Defendant to stand trial, the government offered into evidence a tape of an interrogation of Defendant in the Tulsa County Jail shortly after his arrest for the charges pending in this case. The Court admitted the tape into evidence in connection with the government's § 4241(a) motion; ordered it sealed over the Defendant's objection; and ordered the parties to file briefs on the issue of maintaining the court seal on the videotape. The government has now filed its motion to maintain the seal, and Defendant has responded. [Doc. No. 21]. For the reasons discussed below, the government's motion to maintain seal is GRANTED.
I. DEFENDANT'S SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL
Defendant argues that maintaining the seal on the videotape introduced as evidence by the government would violate his Sixth Amendment right to a public trial. The parties agree that the Sixth Amendment to the United States Constitution specifically guarantees Defendant the right to a "public trial," and that this right extends to court proceedings beyond the actual proof at trial. Waller v. Georgia, 467 U.S. 39, 44-47 (1984). However, while the Sixth Amendment sets up a presumption of openness, the right to a public trial "may give way in certain cases to other rights or interests . . . ." Nieto v. Sullivan, 879 F.2d 743, 751 (10th Cir. 1989).
The showing the government must make to override the Sixth Amendment's presumption of openness depends on whether it is seeking a total closure of the proceedings or only a partial closure. When the government seeks a total closure,
[t]he presumption of openness may be overcome only by an overriding interest based on findings 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-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984).
Under Press-Enterprise, the party seeking to close the hearing must 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.Waller, 467 U.S. at 48. The Press-Enterprise/Waller standard does not, however, apply when the government seeks only a partial closure of a hearing.
When the government seeks a partial closure, the "overriding interest" standard articulated in Press-Enterprise/Waller is replaced with a less demanding "substantial reason" test. Nieto, 879 F.2d at 753. As the Fifth Circuit has recognized,
[t]he Second, [Fifth,] Eighth, Ninth, Tenth, and Eleventh Circuits have all found that Waller's stringent standard does not apply to partial closures, and have adopted a less demanding test requiring the party seeking the partial closure to show only a "substantial reason" for the closure. . . . [T]hese courts have all based their decisions on a determination that partial closures do not implicate the same fairness and secrecy concerns as total closures.United States v. Osborne, 68 F.3d 94, 98-99 (5th Cir. 1995) (footnotes omitted).
In this case, the government has never sought total closure of the competency proceedings. All of the competency proceedings (i.e., the § 4241(a) and the § 4241(d) stages) have been open and attended by the public, including the press. The only aspect of the competency proceedings which has been closed is the sealing of the videotape in question, which the government submitted under § 4241(a) because it raised questions as to Defendant's competency to stand trial. The Court finds, therefore, that this is a partial closure case like Nieto and not a total closure case like Waller. The Court will, therefore, apply a "substantial reason" test rather than an "overriding interest" test.
The Court finds that the government has articulated a substantial reason for the sealing of the videotape in question. It is highly possible that one of the central issues in this criminal prosecution will be whether Defendant possessed the mental state necessary to form the requisite intent to commit the crime alleged. The videotape contains evidence dealing with one aspect of that issue. It does not, however, present the entire picture. Furthermore, the government submitted the videotape under § 4241(a) not to establish that Defendant was incapable of forming intent on the day of the alleged crime, but to discharge its duty to report to the Court and request a competency hearing whenever one of its attorney's has information causing him to have reasonable doubt as to the present competency of a criminal defendant to assist in his own defense. See United States v. Varner, 467 F.2d 659, 661 (5th Cir. 1972).
Given the nature of the crime alleged in this case, the media interest in this case has been significant as compared to most criminal cases prosecuted in this district. Numerous newspaper articles and television stories have been broadcast in Tulsa and surrounding areas, from which any potential venire will be drawn. It is, therefore, likely that the contents of the tape, or at least a summary of its contents would be widely reported in this community. The government's ability to obtain a fair trial would be compromised because the community of potential jurors would have been exposed to only one piece of the otherwise complex puzzle which will make up the factual question surrounding the Defendant's mental state on the day of the alleged crime. The Court finds that avoiding the prejudice caused by such a one-sided doling out of evidence prior to trial provides a substantial reason for sealing the videotape prior to trial.
The Court finds that sealing the videotape until trial is essential to preserve the government's right to a fair trial. Defendant has offered no other solutions. The Court also finds that the government's proposal that the tape be sealed until the jury in this case has been selected and sworn is narrowly tailored to protect its right to a fair trial. The tape will not be permanently sealed from public view. The interests protected by the Sixth Amendment will, therefore, ultimately be served. See Nieto, 879 F.2d at 753 (discussing the interests protected by the Sixth Amendment).
II. THE PUBLIC'S FIRST AMENDMENT RIGHT TO PUBLIC ACCESS
The Court recognizes that the "First Amendment guarantees the right of the press and the public to attend criminal trials and certain preliminary proceedings in criminal cases." United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998) (emphasis added). The Supreme Court has not yet ruled on "whether there is a constitutional right of access to court documents and, if so, the scope of such a right." United States v. McVeigh, 119 F.3d 806, 812 (10th Cir. 1997) (emphasis added). However, when confronted with the issue of access to court records, the Tenth Circuit has assumed that the test established by the Supreme Court in Press-Enterprise II for restrictions on public access to court proceedings would also be applied to restrictions on public access to court documents. Gonzales, 150 F.3d at 1256.
In Press-Enterprise II, the Supreme Court established "tests of experience and logic" to determine whether a First Amendment right of access applies to a particular trial-related process. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986) (Press-Enterprise II). If, after applying these tests, a qualified First Amendment right of access is found to exist, the right may be overcome by "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. . . . Interests other than those of the accused may be considered." Gonzales, 150 F.3d at 1256.
Neither the government nor the Defendant has raised First Amendment arguments in this case, and the Court is reluctant to make findings on an issue that has not been properly presented. There are several issues which would have to be addressed before the Court could rule in this area. For instances, using the Press-Enterprise II "experience and logic" standard, does a First Amendment right of access attach to materials admitted in connection with a competency proceeding. Without deciding the issue, the Court is not convinced that "experience and logic" require a right of access to all aspects of a competency proceeding.
Assuming that a First Amendment right of access does attach to the videotape in question, must the government show an "overriding interest" or a "substantial reason" to overcome the public's right of access? In other words, is Press-Enterprise II's "overriding interest" standard limited to total closure cases just as Waller's overriding interest standard in the Sixth Amendment context was limited by the Tenth Circuit in Nieto to total closure cases? It would seem anomalous to limit an accused's Sixth Amendment right to a public trial more severely than the public's First Amendment right of access to that same accused's trial proceedings. Again, without deciding the issue, it Would seem that the public's First Amendment rights in this case would be limited in the same fashion as Defendant's Sixth Amendment rights in this case. The government would, therefore, need only show a "substantial reason" to overcome the public's right of access; and, as previously discussed, the government has already made such a showing in this case.
Because Defendant has not asserted the First Amendment in opposition to the government's motion to maintain the videotape under seal, the Court makes no findings based on the First Amendment. If a member of the media or public wishes to intervene and assert a right of access to the videotape, the Court will consider the issue at that time.
CONCLUSION
The "Government's Motion to Maintain Seal" on the videotape submitted in connection with its motion under 18 U.S.C. § 4241 (a) is GRANTED. [Doc. No. 12]. The videotape shall remain under seal until a jury has been picked in this case. Once a jury has been sworn in this case, the seal on the videotape shall be lifted.
IT IS SO ORDERED.