Opinion
98 CR 923.
April 17, 2001.
MEMORANDUM AND ORDER
Near the end of an approximately three month trial, the court was presented with certain information. The court discussed this information with all counsel and then conducted an immediate and limited in camera voir dire. See U.S. v. Montenegro, 231 F.3d 389, 394 (7th Cir. 2000) (the method of conducting voir dire is left to the sound discretion of the district court). This order memorializes the fact that all proceedings related to the voir dire are sealed and explains why a seal is necessary.
Discussion
In Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984), the Supreme Court addressed closure of voir dire to the press and public. In that case, the Court held that court proceedings are presumptively open to the public and that this 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." Id. at 510. The Court later expanded this holding, stating that, "[i]f the interest asserted [in support of closure] is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 14 (1986). The Seventh Circuit has encapsulated these standards into a three part test which requires this court to: (1) identify an overriding interest requiring closure; (2) justify that interest by finding that closure is the only alternative that can serve that interest after specifically considering alternatives to closure; and (3) narrowly tailor the closure order to protect the interest. United States v. Peters, 754 F.2d 753, 760 (7th Cir. 1985). In this case, the specific information which led to the in camera voir dire is under seal. Thus, the court must undertake the difficult task of explaining why the extraordinary step of sealing a portion of a criminal proceeding is warranted without revealing the sealed information. See Pepsico, Inc. v. Redmond, 46 F.3d 29, 30 (7th Cir. 1995) (Easterbrook, J., in chambers).
Here, this task is impossible, not merely difficult, as even the most oblique reference to the sealed information will divulge that information. Nevertheless, preserving the sanctity of the sealed information is a compelling interest which justifies the seal. The court also finds that sealing of the voir dire was necessary to ensure truthful answers to the court's questions. See In re South Carolina Press Assoc., 946 F.2d 1037 (4th Cir. 1991) (a juror's fear of publicity "may so inhibit or chill truthful responses" that an accused is denied a fair trial under the Fourteenth Amendment). In addition, closure is the only alternative that can serve these interests because alternatives, such as redaction, are not viable because they will lead to disclosure of the sealed information. Finally, in order to narrowly tailor the closure order, the court orders the government to promptly advise the court of any changes in the status of the sealed information so that the court can lift the seal at the earliest possible moment.
In short, "this is the rare case requiring closure for reasons overriding the constitutional rule of openness." United States v. Cojab, 996 F.2d 1404, 1408 (2d Cir. 1993). Closure is not only necessary to preserve higher values but also is the only way to serve those values. Press-Enterprise Co. v. Superior Court of California, 464 U.S. at 510. Hence, the voir dire and all discussions relating to it are hereby placed under seal.
The court also notes that the information which ultimately led to the voir dire was presented to the court without prior notice, and that, due to the nature of the information, the court closed the proceedings immediately. Thus, unlike the average situation where the openness of the voir dire can be discussed ahead of time, the court was unable to afford the media an opportunity to be heard regarding their exclusion from the proceedings. See, e.g., In re Associated Press v. Ladd, 162 F.3d 503, 508-09 (7th Cir. 1998).
Conclusion
For the foregoing reasons, the voir dire and all discussions relating to it (transcripts of proceedings on April 11, 12, 16, and 17, 2001) are hereby placed under seal until further order of the court. The government shall promptly advise the court of any changes in the status of the sealed information.