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October 22, 1980

Howard L. CRIDEN, Harry P. Jannotti, Louis C. Johanson, George X. Schwartz

The opinion of the court was delivered by: FULLAM


National Broadcasting Company, Inc., American Broadcasting Companies, Inc., CBS, Inc., and Westinghouse Broadcasting Company, Inc. (hereinafter referred to as "the broadcasters") have renewed their application "for permission to copy, for the purpose of broadcasting to the public, those video and audio tapes admitted into evidence and played to the jury in open court in this action."

 At the trial of the defendants Schwartz and Jannotti, the Government introduced evidence in the form of video tapes of meetings between the defendants and undercover F.B.I. agents posing as representatives of fictitious wealthy mideastern businessmen, and audio tapes of telephone conversations between the defendant Criden and the undercover agents and a government informant. All of this evidence was obtained through surreptitious surveillance, without the knowledge or consent of the participating defendants.

 The defendants Schwartz and Jannotti were convicted, and their post-trial motions are pending before this Court. The cases of the defendants Criden and Johanson were severed, and they are awaiting trial.

 The defendants Criden and Johanson are also named as defendants in various indictments pending in the Eastern District of New York, arising from the same investigation, generally referred to as the Abscam investigation, giving rise to the present cases. Trial on one of those indictments, in which United States Congressman Michael Myers and Camden, New Jersey, Mayor Angelo Errichetti are also defendants, commenced in the Eastern District of New York in August of this year, and resulted in convictions of all of the defendants. Their post-trial motions are pending before the District Court. (For convenience, that case will be referred to herein as "the Myers trial"). Much of the Government's evidence in that trial consisted of similar video tapes of meetings and audio tapes of conversations.

 In the course of the Myers trial, the broadcasters sought permission to make copies of the videotapes presented to the jury. It was established that this could readily be accomplished unobtrusively as the tapes were being played before the jury, without alteration of or damage to the originals. In a ruling from the Bench, the trial judge granted the request, but directed that the copying be performed only during recesses in the trial, rather than simultaneously with the presentation of the evidence. The defendants appealed that ruling to the Court of Appeals for the Second Circuit, and obtained a temporary stay of the order. The Court of Appeals expedited its consideration of the matter, combining the hearing on the continuation of the stay with the hearing on the merits, but the Myers trial had ended when the Court of Appeals, on October 1, 1980, rendered its decision affirming the order of the trial judge. On October 14, 1980, the Supreme Court declined to grant a stay of the order.

 At the start of the Schwartz-Jannotti trial in this Court, on September 8, 1980, the broadcasters initially sought the same relief they now seek. The application was denied, in a bench ruling. Among the reasons expressed at that time were the pendency of the appeal before the Second Circuit; the fact that Criden and Johanson faced trial on this Indictment at a later date, and none of the trials of the defendants on this Indictment had been concluded; and the pendency of non-frivolous challenges to the Indictments on due process grounds. In renewing their application at this time, the broadcasters point out that the tapes they now seek were offered in evidence at the trial of Schwartz and Jannotti which has not been completed, the Second Circuit has upheld the order of the trial judge releasing the tapes in the Myers case, the Supreme Court refused to stay those orders, and the tapes from the Myers trial have now been copied and extensively broadcast. *fn1"

 I agree that these intervening developments necessitate a re-examination of the issues raised by the broadcasters' applications.


 In U. S. v. Myers, et al., In re Application of National Broadcasting Company, Inc., et al., 635 F.2d 945 (2d Cir., 1980), the court upheld the release of the tapes to the broadcasters upon essentially the following rationale: The broadcasters, like other members of the public, have a very important common law right to inspect and copy judicial records; while this right is not absolute, there is a strong presumption in favor of such public access to judicial records; and only the most compelling reasons can justify curtailment of that right. The court stated:

"... there is a presumption in favor of public inspection and copying of any item entered into evidence at a public session of a trial. Once the evidence has become known to the members of the public, including representatives of the press, 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." (At p. .)

 The court held that the presumption had not been overcome in this case, and that the possibility of impairing the Sixth Amendment rights of defendants not yet tried, and of defendants whose convictions were not yet final, were too speculative to justify non-disclosure; and that such interests could be accommodated in other ways.

 The court found support for its holding in the decision of the Court of Appeals for the District of Columbia Circuit in the Watergate Tapes litigation, U. S. v. Mitchell, 179 U.S. App. D.C. 293, 551 F.2d 1252 (D.C.Cir. 1976), rev'd sub. nom. Nixon v. Warner Communications, 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978), and in the Opinion of the Supreme Court in the Watergate litigation, Nixon v. Warner Communications, supra.

 The decision of a circuit court of appeals which is squarely apposite is entitled to the utmost respect, notwithstanding the fact that it emanates from another circuit, and is therefore not totally binding upon this Court. This is particularly true when the decision is rendered in litigation so closely related to the case under consideration. After carefully considering this matter, however, and with all deference to the views of the Second Circuit Court of Appeals, I find myself in total disagreement with the Myers decision, which I believe to be contrary to the views of the Supreme Court as expressed in the Warner Communications case, supra. *fn2"

 The seeming temerity of declining to follow the Second Circuit's lead is tempered by the observation that, as plainly recognized by the Supreme Court, the decision as to access to trial evidence is committed to the discretion of the trial court. Thus, the Second Circuit's decision, in the final analysis, was that the trial court in the Myers case had not abused his discretion by releasing the tapes; it does not necessarily mean that a contrary decision by the trial court would have been reversed by the Second Circuit. It ought not to be surprising that matters committed to the discretion of trial courts may produce differing results.

 In Nixon v. Warner Communications, Inc., supra, the Supreme Court held: "That the common law right of access to judicial records does not authorize release of the tapes in question from the custody of the district court" (435 U.S. at p. 608, 98 S. Ct. at p. 1317); that release of the tapes in that case was not required by the First Amendment guarantee of freedom of the press ( id., at pp. 608-610, 98 S. Ct., at pp. 1317-1318); and that release of the tapes was not required by the Sixth Amendment guarantee of a public trial ( id., at p. 610, 98 S. Ct., at p. 1318). All of the factors which eliminated constitutional issues in that case are present here. The trial was public, the tapes were viewed and heard by all in attendance at the trial, and representatives of the media had the same access to the evidence as anyone else (indeed, media representatives had greater access, in that they were furnished transcripts of the tapes). Thus, only issues related to the asserted common law right of access are implicated in the present decision. And it is correspondingly important to focus upon what the Supreme Court said about those issues.

 Speaking for the Court, Mr. Justice Powell stated:

"Both petitioner and respondents acknowledge the existence of a common law right of access to judicial records, but they differ sharply over its scope and the circumstances warranting restrictions of it. An infrequent subject of litigation, its contours have not been delineated with any precision...
"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. In contrast to the English practice (citation omitted), American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies ...

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