Seattle Times Co. v. United States District Court for the Western District of Washington

WIGGINS, Circuit Judge: The Seattle Times Company (“Times”) and the Hearst Corporation (“Hearst”) petition for a writ of mandamus to obtain access to four documents filed under seal in pretrial criminal proceedings. Stella Nickell and the United States are real parties in interest in opposition to the writ. We have expedited the disposition of this case. We issued an order February 29, 1988 granting the requested relief to be followed by this statement of our reasons. I. FACTS AND PROCEEDINGS BELOW Stella Nickell was indicted on December 9,1987 on five counts of violating 18 U.S.C. § 1365, a product tampering statute. The grand jury charged that she implanted potassium cyanide in Excedrin capsules, resulting in the death of her husband and of a woman unknown to her. In May, 1987, while the case was under investigation, Nickell applied for court-appointed counsel. In support of her application, she filed a financial affidavit describing her income, property, and other financial details. United States Magistrate John L. Weinberg appointed the Federal Public Defender to represent Nickell and ordered the affidavit sealed. A second financial affidavit, dated December 9,1987, was also sealed. On December 9, 1987, United States Magistrate Philip K. Sweigert issued a bench warrant for Nickell and gave notice that the United States Attorney’s office intended to request a pretrial detention hearing. The government and the defendant submitted briefs on the detention issue, each moving for leave to file the briefs under seal. Magistrate Sweigert entered orders on December 9 and December 11 granting the motions. The detention hearing was held in open court on December 11,1987 and Magistrate Sweigert entered a pretrial detention order. The government and Nickell then moved to withdraw the sealed briefs from the file. The Magistrate ordered the briefs returned to the respective parties. Nickell subsequently filed a written, and unsealed, motion to revoke the detention order. The district court denied this motion in a memorandum decision dated December 17, 1987. The district court also ordered the briefs refiled under seal. This court affirmed the detention order on January 8, 1988. On January 7, 1988, the defendant, without objection, moved that the trial be continued to April 18, 1988. The Seattle Times filed a motion on December 18, 1987 to unseal the sealed portions of the court’s file in the Nickell case. Hearst and Tacoma News, Inc. subsequently joined in the motion. The three newspapers, the government, and the defendant submitted briefs and presented oral argument at a hearing on January 11, 1988. The district court denied the motion, noting that presumably the documents would be unsealed at the close of the criminal trial. The district court issued a supplemental order on February 8, 1988. The court ordered the detention memoranda released in redacted form, excising all references to the facts and evidence specific to this case. The memoranda as released consisted of — 1515 — essentially legal argument. Based on the defendant’s fifth amendment rights, the court declined to release the financial affidavits in any form. Petitioners have made it clear in supplemental briefing and at oral argument that the redacted documents are not satisfactory. The Times (joined by Tacoma News) and Hearst each filed a petition for a writ of mandamus with this court. These petitions have been consolidated for review. II. JURISDICTION This court recognizes standing in parties such as Times and Hearst to seek review by petition for writ of mandamus of orders denying them access to judicial proceedings or documents. United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir.1982). III. STANDARD OF REVIEW Mandamus relief is appropriate if the petitioner can show the presence of several of the factors set forth in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977). See Sacramento Bee v. United States Dist. Court, 656 F.2d 477, 480-81 (9th Cir.1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2257, 72 L.Ed. 861 (1982). These factors are: 1) the party seeking the writ has no other means, such as a direct appeal, of attaining the desired relief, 2) the petitioner will be damaged in a way not correctable on appeal, 3) the district court’s order is clearly erroneous as a matter of law, 4) the order is an oft-repeated error, or manifests a persistent disregard of the federal rules, and 5) the order raises new and important problems, or issues of law of first impression. Bauman, 557 F.2d at 654-55. We review de novo whether the elements of the mandamus test are satisfied. Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986). Times and Hearst have established the presence of the first and second factors because petitioners lack standing to bring a direct appeal, Sacramento Bee, 656 F.2d at 481, and because they face a serious injury to an important first amendment right. The fifth factor also weighs heavily in favor of issuance of the writ because the issue of press access to pretrial detention hearings and documents is one of first impression in this circuit. The key factor to be examined is whether “we are firmly convinced that [the] district court has erred in deciding” to seal the four documents. In re Cement Antitrust Litigation (MDL No. 296), 688 F.2d 1297, 1306-07 (9th Cir.1982), aff'd mem. sub nom. Arizona v. United States Dist. Court, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983). We turn now to this question. IV. ANALYSIS The first amendment guarantees the public and the press the right to attend criminal trials unless the defendant’s right to a fair trial or some other overriding consideration requires closure. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 2619-20, 73 L.Ed.2d 248 (1982); Richmond Newspapers v. Virginia, 448 U.S. 555, 580-81, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980) (plurality opinion). The Supreme Court has extended this right of access to preliminary hearings, as conducted in California, because of the tradition of accessibility and because these hearings are sufficiently like a trial to conclude that public access plays a significant role in their functioning. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 2741-43, 92 L.Ed.2d 1 (1986). The Court has not ruled on whether the right of access extends to pretrial proceedings generally. This court has gone further and held that in general the public and the press have a qualified first amendment right of access to pretrial hearings and documents. See Associated Press v. United States Dist. Court, 705 F.2d 1143, 1145 (9th Cir.1983); see also Brooklier, 685 F.2d at 1167, 1170 (voir dire, suppression hearings and transcripts of closed proceedings). We have — 1516 — also held that a common law right of access may extend to documents such as presen-tence probation reports, provided the requesting party “make[s] some threshold showing that disclosure will serve the ends of justice” and there is no valid countervailing consideration that supports nondisclosure. See United States v. Schlette, 842 F.2d 1574, 1581, 1582 n. 4 (9th Cir.1988) (not addressing first amendment issue); see also id. at 1582-83 (discussing CBS, Inc. v. United States Dist. Court, 785 F.2d 823 (9th Cir.1985), which extended right of access to post-trial memorandum filed by government in response to sentence reduction motion under Fed.R.Crim.P. 35). The government argues here that the memoranda submitted by the parties on the detention issue should not be subject to the qualified right of press access.1 We have not previously addressed this specific issue. We begin with the presumption that the public and press have a right of access to criminal proceedings and documents. CBS, 765 F.2d at 825. The Supreme Court has articulated two considerations relevant to whether the right of access extends to a particular proceeding. First, the Court has considered whether the place and process has historically been open because “ ‘a tradition of accessibility implies the favorable judgment of experience.’ ” Globe Newspaper, 457 U.S. at 605, 102 S.Ct. at 2619 (quoting Richmond Newspapers, 448 U.S. at 589, 100 S.Ct. at 2834 (Brennan, J., concurring)). Pretrial detention proceedings do not share with criminal trials an unbroken history of public access. Bail is often set in open court at the defendant's first appearance before the magistrate. But commonly the bail determination is made “by the judge when an indictment is returned or by the magistrate when an arrest warrant issues_” United States v. Chagra, 701 F.2d 354, 363 (5th Cir.1983). This history and the prevalent use of informal procedures should not automatically foreclose a right of access. Pretrial proceedings have grown increasingly important in the modern era. Brooklier, 685 F.2d at 1170 (citing United States v. Criden, 675 F.2d 550, 555 (3d Cir.1982)). Specifically, bail procedures have become more significant. The Bail Reform Act of 1984 introduced the dangerousness of the defendant as an independent ground for pretrial detention and substantially changed the requisite procedures. The detainee now has a right to an immediate hearing and to counsel at the hearing, a right to testify, present witnesses and other information, and to cross-examine the witnesses against him. 18 U.S.C. § 3142(f). Thus, when the government seeks pretrial detention on grounds of dangerousness, the previously common informal procedures are no longer adequate. Under these circumstances, the historical tradition surrounding bail proceedings is much less significant. The second consideration relied upon by the Supreme Court weighs heavily in favor of a right of access to bail proceedings. The Court has examined whether public access plays a particularly significant positive role in the actual functioning of the proceeding. Press-Enterprise, 106 S.Ct. at 2742-43; Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619. We agree with the First and Third Circuits that pretrial release proceedings implicate the related policy concerns of a public educated in the workings of the justice system and a system subjected to healthy public scrutiny. In re Globe Newspaper Co., 729 F.2d 47, 51-2 (1st Cir.1984); Chagra, 701 F.2d at 363. Public interest in the conditions of pretrial release is understandably great because the community is directly affected. See United States v. Salerno, — U.S. -, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987) (Congress passed Bail Reform Act in response to pressing societal problem of crimes committed by persons on release). Also, this court has noted: "pretrial doc — 1517 — uments, such as those dealing with the question whether [the defendant] should be incarcerated prior to trial ... are often important to a full understanding of the way in which the judicial process and the government as a whole are functioning.” Associated Press, 705 F.2d at 1145. Moreover, pretrial release decisions benefit from public scrutiny. The decision to hold a person presumed innocent of any crime without bail is one of major importance to the administration of justice. In re Globe, 729 F.2d at 52; see also Salerno, 107 S.Ct. at 2105 (liberty is the norm and pretrial detention is a “carefully limited exception”). Openness of the proceedings will help to ensure this important decision is properly reached and enhance public confidence in the process and result. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1983). We hold, therefore, that the press and public have a right of access to pretrial release proceedings and documents filed therein. This does not end our inquiry, however. The right of access is not absolute and must be balanced against the defendant’s sixth amendment right to a fair trial. Sacramento Bee, 656 F.2d at 482. This court has developed three separate substantive tests that must be satisfied to justify abrogating the right of access.2 We find that the district court’s orders fail to pass two of these tests. First, there must be a substantial probability that irreparable damage to the defendant’s fair trial right will result if the documents are not sealed. Associated Press, 705 F.2d at 1146. No such showing has been made in this case. The pretrial detention memorandum filed by the government described the evidence against Nickell — particularly her motive, method of operation, physical evidence linking her to the crime, the results of the polygraph examination, and her prior convictions. Some of this evidence will not be admissible at trial. Nickell’s memorandum in response was principally a legal argument. The financial affidavits merely contained an unremarkable recitation of assets and liabilities. In denying the motion to unseal, the district court pointed out the extensive publicity the case has received and the dramatic nature of the crime. Pretrial publicity does not, however, lead in every criminal case to an unfair trial. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 565, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683 (1976); CBS v. United States Dist. Court, 729 F.2d 1174, 1179 (9th Cir.1983). Recent more highly publicized cases indicate that most potential jurors are untainted by press coverage despite widespread publicity. See CBS, 729 F.2d at 1179. Associated Press and both CBS cases, for example, involved the prosecution of John DeLorean, an international celebrity, for cocaine trafficking. This court did not find the pervasive pretrial publicity conclusive. CBS, 765 F.2d at 825; CBS, 729 F.2d at 1179-80; Associated Press, 705 F.2d at 1146; see also In re Nat’l Broadcasting Co., Inc., 635 F.2d 945, 953 (2d Cir.1980) (extensive publicity about Abscam would not prevent selection of impartial jurors); United States v. Haldeman, 559 F.2d 31, 61-62 (D.C.Cir.1976) (publicity surrounding Watergate did not prevent a fair trial), cert. denied sub nom. Ehrlichman v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). Thus pervasive publicity, without more, does not automatically result in an unfair trial. In assessing the prejudicial nature of such publicity, this court looks “not simply to its effect on individual viewers but to its capacity to inflame and prejudice the entire community.” CBS, 729 F.2d at 1180. In other words, the publicity must create a “ ‘pattern of deep and bitter prejudice’ ... throughout the community.” Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961). This court has recognized that cases involving lurid subject matter, particularly violent crimes, are — 1518 — more likely to arouse such prejudice. CBS, 729 F.2d at 1181. The dramatic and violent nature of the crime is only one factor to be considered, however. In this case it is not dispositive for several reasons. First, prejudicial publicity is less likely to endanger the defendant’s right to a fair trial in a large metropolitan area such as Seattle. Id. at 1181-82. Second, the sealed documents themselves are not either so inflammatory or so prejudicial as to irreparably damage Nic-kell’s right to a fair trial. Finally, any prejudice is minimized because the disclosure will occur almost two months before the jury is scheduled to be impaneled. See Stroble v. California, 343 U.S. 181, 195, 72 S.Ct. 599, 606, 96 L.Ed. 872 (1952) (significant that newspaper accounts appeared six weeks before trial); cf. Sacramento Bee, 656 F.2d at 483 (exposure of jury to inadmissible evidence during trial would prejudice right to fair trial). The order sealing the documents also fails the second test set forth in Brooklier and Associated Press. There must be a substantial probability that alternatives to closure will not adequately protect the right to a fair trial. Associated Press, 705 F.2d at 1146. The district court discussed the alternatives to sealing: voir dire, peremptory challenges and admonitions to the jury, continuance or change of venue, redaction, and media self-restraint. The district court, however, too easily dismissed the likelihood that an impartial jury could be impaneled through searching voir dire and the use of peremptory challenges. The court failed to consider the size of the Seattle metropolitan area from which a jury may be selected. The issue is not whether a potential juror is ignorant of the case, but whether he has a preconceived idea of the defendant’s guilt or innocence. See Nebraska Press Ass’n, 427 U.S. at 565, 96 S.Ct. at 2805. Moreover, if voir dire fails to impanel an impartial jury, the options of a continuance or change of venue are still open.3 Finally, the third test requires a showing of “ ‘a substantial probability that closure will be effective in protecting against the perceived harm.’” Associated Press, 705 F.2d at 1146 (quoting Brooklier, 685 F.2d at 1167). The perceived harm here is prejudicial pretrial publicity. We have already determined that the sealed documents do not substantially impair defendant’s fair trial right. Therefore, it is irrelevant whether sealing would be effective. The district court’s order sealing the four documents thus fails the first two tests set out in Associated Press. Accordingly, Nic-kell’s sixth amendment right to a fair trial does not outweigh the public’s and press’ first amendment right of access. Although not emphasized by the parties, the district court Refused to unseal the financial affidavits on the ground that unsealing would violate Nickell’s fifth amendment rights. The fifth amendment prevents the state from compelling the accused to make a testimonial communication that is incriminating. See Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1975).4 To claim the privilege, the accused must be faced with substantial hazards of self-incrimination that are “real and appreciable” and not merely “imaginary and unsubstantial.” — 1519 — United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.1980). The district court’s determination here was based on an assumption that unsealing the financial affidavits would tend to incriminate Nickell. This assumption is premature. We do not know what use, if any, the government will try to make of the information contained in the affidavits. Therefore, any fifth amendment problem is at this juncture speculative and prospective only. We agree with the Tenth Circuit that “[t]he time for protection will come when, if ever, the government attempts to use the information against the defendant at trial,” United States v. Peister, 631 F.2d 658, 662 (10th Cir.1980), or if the government attempts to use any information derived from the facts revealed in the affidavits. V. CONCLUSION In sum, the public and the press have a qualified right of access to pretrial release proceedings and documents. The defendant’s right to a fair trial overrides this right of access only when the three substantive tests set out in Associated Press are met. The district court’s order failed the first two tests and was thus clearly erroneous as a matter of law. Moreover, any fifth amendment problem is too speculative at this point to justify sealing the financial affidavits. Therefore, we GRANT the petition for writ of mandamus and ORDER the district court to release the four documents filed under seal. Footnotes [1] The government does not make this argument with regard to the financial affidavits. We assume, therefore, that the affidavits are pretrial documents subject to the right of access under the general rule expressed in Brooklier. [2] This court has also set forth procedural prerequisites to entry of a closure order: 1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections, and 2) the reasons supporting closure must be articulated in findings. Brooklier, 685 F.2d at 1167-68. These requirements were met here. [3] On February 22,1988, the district court denied defendant's motion for change of venue without prejudice to the renewal of the motion. [4] Because we decide that the possibility of incrimination is too speculative at this point, we do not address whether Nickell’s statements on the financial affidavit were compelled. This court has not previously decided whether a defendant acts under state compulsion when he discloses financial information in order to obtain appointed counsel. We have, however, noted that execution of such an affidavit may raise fifth amendment concerns. See United States v. Ellsworth, 547 F.2d 1096 (9th Cir.1976). In Ells-worth, the court did not need to address whether the testimony was compelled because any self-incrimination problem was alleviated when the court assured the defendant that the affidavits would not be used in a future criminal prosecution. Id. at 1098. We do not read Ells-worth as condoning the practice of assuring a defendant that material will be sealed and not disclosed to the government, since any sealing order is subject to review. An unqualified assurance would be appropriate only if the government agreed in advance not to utilize the information if it were ordered disclosed.