ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Criminal No. 80-00166-01-04)
Before: SEITZ, Chief Judge, WEIS and SLOVITER, Circuit Judges
SLOVITER, Circuit Judge .
This is an appeal from the order of the district court denying the application of the television networks "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" during the criminal trial of two members of the Philadelphia City Council arising out of what has become known as the Abscam prosecutions. For the reasons set forth hereafter, we reverse the order of the district court.
Following a series of indictments returned by grand juries sitting in various districts of the country, a number of local, state and federal public officials were tried on charges of bribery and related offenses allegedly committed during the course of an FBI "sting" operation.*fn1 The trial of defendants, George X. Schwartz, then President of Philadelphia City Council, and Harry P. Jannotti, then a member of the Council, began September 15, 1980 in the Eastern District of Pennsylvania. The court had severed the trials of two co-defendants, Louis C. Johanson, another member of Philadelphia City Council, and Howard L. Criden, a Philadelphia attorney. Both Johanson and Criden had been convicted on similar charges in the United States District Court for the Eastern District of New York.
Prior to commencement of the trial, representatives of the three major television networks, NBC, ABC and CBS, and Westinghouse Broadcasting, Inc., which owns and operates a Philadelphia television and radio station, (hereafter jointly referred to as "broadcasters") requested permission to copy the audio and videotapes introduced into evidence for broadcasting to the public. The court released transcripts of the tapes to the press and public, but denied the broadcasters' request to copy the tapes themselves on September 8, 1980. Among the reasons given for the denial were the pendency of a similar appeal before the Second Circuit in an Abscam case where the district court had ordered that the tapes be released to the press, the pendency of the Schwartz-Jannotti trial, the outstanding indictments of defendants Johanson and Criden, and the existence of substantial due process challenges to the indictments.
The broadcasters renewed their application for the tapes on October 16, 1980, citing several changes in circumstances. First, a unanimous panel of the Second Circuit had affirmed the district court's release of the tapes in the New York Abscam trial, In re Application of National Broadcasting Co. (Myers), 635 F.2d 945 (2d Cir. 1980), and the Supreme Court refused to stay that order, 49 U.S.L.W. 3269 (U.S. Oct. 14, 1980). Consequently, the tapes introduced at that trial were in fact broadcast to the public. In addition, the Schwartz-Jannotti trial had concluded with guilty verdicts against both defendants although the indictments of Criden and Johanson were still outstanding in this district. After reconsideration of its decision in light of these intervening developments, the district court again denied the broadcasters' application. United States v. Criden, 501 F. Supp. 854 (E.D. Pa. 1980). This expedited appeal followed.
The district court, stating that the only issues implicated were those relating to the common law right of access to judicial records, stressed that "the decision as to access to trial evidence is committed to the discretion of the trial court." Id . at 857, citing Nixon v. Warner Communications, Inc ., 435 U.S. 589 (1978). The court found itself in "total disagreement" with the decisions of the courts of appeals for the District of Columbia and Second Circuit which espoused an "expansive view of the common law right of access." 501 F. Supp. at 857, 859. Compare In re Application of National Broadcasting Co. (Myers), supra; United States v. Mitchell, 551 F.2d 1252, 1258 (D.D.Cir. 1976), rev'd on other grounds sub nom. Nixon v. Warner Communications, 435 U.S. 589 (1978). The district court found no support for that view in the Supreme Court's decision in Warner Communications . The district court concluded, however, that "whatever the force of the presumption [in favor of disclosure], I am... convinced that the circumstances of the present case are indeed sufficiently extraordinary to require denial of the broadcasters' application." 501 F.Supp. at 859.
The factors referred to by the court in support of denial of the application were "the very great difference between videotape evidence and other forms of evidence," id .; the "penalties not prescribed by the law [which] will be visited upon the accused and, more importantly, upon innocent relatives and friends" by more widespread publicity, id . at 860; and the difficulty which the broadcasting would create in selecting a jury for the then still pending trial of Criden and Johanson and in the event of a retrial of Schwartz and Jannotti. Id . at 861. The court referred to several additional reasons, which were the possibility that its ruling admitting the tapes into evidence was incorrect, the showing in the Schwartz-Jannotti trial of videotapes which would be prejudicial and inadmissible as to Criden, the inclusion of "scurrilous and libelous statements about third parties," and the prohibition imposed on televising court-room proceedings by resolution of the Judicial Conference of the United States, which the district court analogized to release of videotapes. Id . at 862-64.
On appeal the broadcasters contend that the district court failed to accord proper weight to the presumption of access and that it relied on improper factors in assessing the weight of the defendants' interests against release. Essentially the broadcasters would have us adopt the standard articulated in In re Application of National Broadcasting Co. (Myers), 635 F.2d at 952, that only the "most extraordinary circumstances" could overcome the presumption in favor of release, or, as phrased in United States v. Mitchell, 551 F.2d at 1261, that the party opposing exercise of the common law right of access would have the burden of showing "that justice required denying access to the court records." Additionally, the broadcasters contend that the district court's characterization of publicity as punishment is clearly wrong and that its concerns about the availability of an unbiased jury in the event of a retrial were unwarranted based on the experiences of other courts in securing acceptable juries in highly publicized cases and the effectiveness of voir dire as a means of identifying and excluding unacceptable jurors. With regard to the disputed admissibility of the tapes, the broadcasters contend that the district court was correct in its initial ruling and, alternatively, that defendants' objections to the tapes were essentially premised on privacy interests which have already been decided adversely to them by virtue of the tapes having been publicly shown in court. Release of the audio and videotapes is opposed by Schwartz and Jannotti whose argument tracks the reasoning of Judge Fullam in denying the broadcasters' application.*fn2
The broadcasters concede that there is no constitutional right to copy the tapes and that even under the common law right on which they rely, there is no absolute right to release of the tapes. Since all parties agree that release of the tapes is a matter committed to the discretion of the trial court, we must first consider our scope of review.
The mere statement that a decision lies within the discretion of the trial court does little to shed light on its reviewability. It means merely that the decision is uncontrolled by fixed principles or rules of law.See Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635, 636-43 (1971). See also material compiled in R. Aldisert, The Judicial Process 742-76 (1976). In our judicial system, a wide variety of decisions covering a broad range of subject matters, both procedural and substantive, is left to the discretion of the trial court. The justifications for committing decisions to the discretion of the court are not uniform, and may vary with the specific type of decisions.*fn3 Although the standard of review in such instances is generally framed as "abuse of discretion," in fact the scope of review will be directly related to the reason why that category or type of decision is committed to the trial court's discretion in the first instance.
Perhaps the most common category of decisions committed to the discretion of the trial court encompasses those situations where the decision depends on first-hand observation or direct contact with the litigation. Only the trial judge has seen the witness or observed the jury's reaction to evidence. Only the trial judge has supervised the course of litigation through discovery and pretrial, and can evaluate the diligence or procrastination of the attorneys. In those circumstances the trial court has a superior vantage point which an appellate court cannot replicate. The trial court's decision therefore merits a high degree of insulation from appellate revision. Rulings on evidentiary matters, discovery, and procedural issues fall in this category.
On the other hand, discretion is sometimes committed to the trial judge because of pragmatic considerations. When circumstances are either so variable or so new that it is not yet advisable to frame a binding rule of law, trial courts may be given discretion until the factors important to a decision and the weight to be accorded them emerge from the montage of fact patterns which arise. See Rosenberg, supra, at 662-63. Often, in time, the contours of a guiding rule or even principle may develop as the courts begin to identify the policies which should control. Thus, for example, although the selection of an appropriate remedy has been generally deemed to lie in the equitable discretion of the trial judge, after experience has accumulated the appellate courts may decide that a specific remedy should be awarded as a general rule. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975) (presumptive right to a backpay order as a remedy for unlawful discrimination). Similarly, award of attorney's fees is generally conceded to lie in the discretion of the trial court but such discretion has been restricted as the factors to be considered are identified and as guidelines are developed. See, e.g., Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp ., 487 F.2d 161 (3d Cir. 1973).
Commitment to discretion implicates conflicting policy considerations. On one hand, commitment to discretion vests the adjudicator with the flexibility necessary to fit the decision to the individualized circumstances. On the other hand, there are countervailing considerations that militate against an expansive delegation of discretion to the trial court. Among the more persuasive reasons for caution is the concern that commitment to discretion may be antithetical to consistency of treatment, a major ingredient of justice. See K. Davis, Discretionary Justice: A Preliminary Inquiry 107 (1969). Similarly, there is a disturbing lack of predictability about the results of discretionary decisions. See id . at 29-33. Additionally, "unreviewable discretion offends a deep sense of fitness in our view of the administration of justice." Rosenberg, supra, at 641-42. There is a general feeling that the losing litigant should not be deprived of at least one opportunity for review of each significant ruling made by a single judge. Id . at 642. Thus, where the basis for commitment of a decision to a trial court's discretion is not dependent on its observation or familiarity with the course of the litigation, there are less compelling reasons for limited appellate review.*fn4
In the matter before us on this appeal, the decision whether to release the tapes was not dependent in the main on particular observations of the trial court. Therefore, the trial court's decision is not accorded the narrow review reserved for discretionary decisions based on first-hand observations, and we must consider both the relevance and weight of the factors considered. Our review is facilitated because Judge Fullam clearly and succinctly expressed the bases for his decision denying release.
We note that until or unless guiding rules have become fixed, it is important that the exercise of discretion be accompanied by the trial court's articulation of the factors considered and the weight accorded to them, as was done in this case. Superficially, it might appear that such an articulation would encourage appellate revision while an unarticulated decision might evade review. In fact, however, articulation of the reasons for the decision tends to provide a firm base for an appellate judgment that discretion was soundly exercised. It confines review of the exercise of discretion to its appropriate scope -- i.e ., whether the relevant factors were considered and given appropriate weight -- and discourages reversal on the ground that the appellate judges might have decided differently had they been the original decisionmakers. We turn then to consideration of the relevant factors.
Chief among the factors favoring release is the common law right of the public to inspect and copy judicial records. The existence of such a right was recognized by the Supreme Court in Warner Communications, where the Court stated:
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.
The right to inspect and copy, sometimes termed the right to access, antedates the Constitution. United States v. Mitchell, 551 F.2d at 1260. It has been justified on the ground of the public's right to know, which encompasses public documents generally, and the public's right to open courts, which has particular applicability to judicial records. Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980); Cohen v. Everett City Council, 85 Wash. 2d 385, 535 P.2d 801 (1975); United States v. Burka, 289 A.2d 376, 379-80 (D.C. 1972).*fn5 See Comment, All Courts Shall Be Open: The Public's Right to View Judicial Proceedings and Records, 52 Temp. L.Q. 311, 337-40 (1979).
The Second Circuit, in discussing the nature of the interest which favored disclosure of the Abscam videotapes, stated:
Though the transcripts of the videotapes have already provided the public with an opportunity to know what words were spoken, there remains a legitimate and important interest in affording members of the public their own opportunity to see and hear evidence that records the activities of a Member of Congress and local elected officials, as well as agents of the Federal Bureau of Investigation. And there is a significant public interest in affording that opportunity contemporaneously with the introduction of the tapes into evidence in the courtroom, when public attention is alerted to the ongoing trial. Cf. Richmond Newspapers, Inc. v. Virginia, supra (closed courtroom not justified despite prompt release of "tapes" of the trial after its conclusion, U.S. at, 100 S. Ct. 2814, at 2820 n.3); Nebraska Press Assn. v. Stuart, supra, 427 U.S. at 560-61.
In Re Application of National Broadcasting Co. (Myers), 635 F.2d at 952.
In Warner Communications, the Supreme Court considered an appeal from the decision of the Court of Appeals for the District of Columbia ordering the release to the media of audiotapes of conversations of President Nixon which had been subpoenaed in connection with the Watergate proceedings. In reaffirming the existence of the right to inspect and copy judicial records, the Court did not attempt to rationalize its underlying basis. However, in contrasting the English decisions which require showing of a particular interest with the American decisions which "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 Court stated:
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, see, e.g., State ex rel. Colscott v. King, 154 Ind. 621, 621-627, 57 N.E. 535, 536-538 (1900); State ex rel. Ferry v. Williams, 41 N.J.L. 332, 336-339 (1879), and in a newspaper publisher's intention to publish information concerning the operation of government, see e.g., State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 677, 137 N.W.2d 470, 472 (1965), modified on other grounds, 28 Wis. 2d 685a, 139 N.W. 2d 241 (1966). But see Burton v. Reynolds, 110 Mich. 354, 68 N.W. 217 (1896).
Because Congress had enacted a statute governing the procedure for release and access of the Nixon papers, including the tapes in question, the Court in Warner Communications did not undertake to balance the strength of the common law right to view judicial records against the interests pressed by defendants, which viewed as the procedure to be followed in ruling on a request for access. The Court also rejected the broadcasters' claim that release of the Watergate tapes was required by either the First Amendment guarantee of freedom of the press or the Sixth Amendment guarantee of a public trial, id . at 608-10, an issue the broadcasters do not raise here. Nonetheless, the interests identified by the Court in Warner Communications as supporting the right to access, "the citizen's desire to keep a watchful eye on the workings of public agencies" and publication of "information concerning the operations of government," are identical to the interests identified in the subsequent decision in Richmond Newspapers, Inc. v. Virginia, U.S., 100 S. Ct. 2814 (1980), where the Court held for the first time that the public's access to criminal trials is guaranteed by First Amendment. Although we do not consider the applicability of the First Amendment here, we believe that some of the same policy considerations identified as supporting open trials may be considered when the issue involves the common law right of access to trial materials.
In Richmond Newspapers, the plurality opinion written by Chief Justice Burger for three members of the Court traced the criminal trial from the days before the Norman Conquest, when attendance at trials was compulsory for freeman who were required to render judgment, through its evolution in England and the American colonies to contemporary times. The characteristic which remained constant in this ...