the night before and asked off the extra two days.
The following day, Porter was interviewed at the request of Childs by an agent in the Spartanburg office of the FBI. At that time, Porter said that he had been in Williamsport, Pennsylvania, on the night of the fire when he called Troutman. In later interviews, Porter stated that he had been in Danville, Pennsylvania, and finally Bloomsburg, Pennsylvania, at that time. There were other inconsistencies in the statements given by Porter which will not be recited at length.
In December, 1994, Childs learned that Porter had purchased a second insurance policy covering the contents of his home, a "renter's policy," shortly before the fire. It was upon learning of the second policy that Porter became a suspect in the case. Both policies provided up to $ 30,000.00 in coverage. Also, it was learned that the letters found at the scene of the fire had been produced on a typewriter with print similar to that on the typewriter used at work by Porter and that the copies of the letters had been produced on a photocopier at USP-Allenwood. Moreover, the post-marks on the envelopes showed that the letters had been mailed either at the Milton Post Office or in mailboxes serviced through the Harrisburg sorting center.
As noted, for the sake of brevity, we have omitted a number of factual matters developed at trial, such as the circumstances of the interviews of Porter. Some of the evidence omitted was of more probative value than other evidence.
However, the foregoing factual recitation is sufficient for present purposes. In addition, we think a brief overview of our rulings with respect to the subpoenas and subpoenas duces tecum is appropriate for the purpose of placing the ruling embodied in this memorandum into context.
Porter's defense was that the letters received by Chief Warns and the wardens of the various institutions withing FCC-Allenwood were in fact the work of White racists, and that White racists, not Porter, committed the arson. Of course, if accepted as genuine, the letters certainly would support this contention.
To support his defense, Porter sought subpoenas for a large number of persons with some knowledge of or experience with racism, both within the BOP and generally, along with supporting documentation. We concluded that not all of this evidence was "material and favorable" to the defense. That is, not every act of racism is connected, and Porter's inability to connect the evidence as to time, place, and identity of actors was fatal to his ex parte applications in many instances.
Porter, however, argued both in his motions and at trial that such acts are connected as evidencing a pervasive atmosphere of racism and because White supremacist groups have overlapping memberships and communicate with one another, a sort of "support system" for hate groups. Taking this argument to its logical extreme, the assassination of Martin Luther King, Jr., would be evidence that Porter did not set fire to his house. Needless to say, we felt that a more restricted view of materiality was appropriate.
Consistent with this determination, we allowed Porter to subpoena witnesses for the purpose of showing Klan activity in the area at or around the time of the fire. Also, we held that evidence of persons with animosity toward Porter was admissible and could be the subject of subpoenas. During trial, we limited the evidence to a six-county area around Milton within a year of the fire. Absent further evidence of a link between a racist incident and Porter or the fire, we fail to see how a reasonable jury could conclude that there was a causal relationship.
We turn next to the objections to unsealing the documents.
II. PUBLIC ACCESS
Since neither the forma pauperis statute, 28 U.S.C. § 1915, nor the rule governing issuance of subpoenas for a defendant proceeding in forma pauperis, Fed. R. Crim. P. 17(b), sets forth a requirement that the documents remain under seal, we apply a constitutional analysis.
We do so because it is a member of the press who seeks access to the documents and note that such an analysis is recited in Porter's brief.
Historically, there has been a presumption of openness in criminal proceedings extending to the time before the Norman Conquest. United States v. Simone, 14 F.3d 833, 837 (3d Cir. 1994)(citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 565, 65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980)). This right of public access, preserved in the First Amendment, may attach to various stages of criminal proceedings and not simply to trial. Id. (also citing Press-Enterprise v. Superior Court of Cal., 464 U.S. 501, 507, 78 L. Ed. 2d 629, 104 S. Ct. 819 (1984) ("Press-Enterprise I"); Press-Enterprise II6 v. Superior Court of Cal., 478 U.S. 1, 10, 92 L. Ed. 2d 1, 106 S. Ct. 2735 (1986)).
The analysis for determining whether documents or proceedings are subject to closure begins with a preliminary determination of whether the First Amendment attaches to the particular documents or proceedings at issue. The two-prong inquiry is known as the "experience and logic test" and was set forth by the Supreme Court in Press-Enterprise II, 478 U.S. 1 at 8, 92 L. Ed. 2d 1, 106 S. Ct. 2735. See also Simone at 837; United States v. Gonzalez, 927 F. Supp. 768, 780-781 (D. Del. 1996). The "experience" prong involves a consideration of "whether the place and process have historically been open to the press and general public." Press-Enterprise II at 8. The "logic" prong involves a consideration of "whether public access plays a significant positive role in the functioning of the particular process in question." Id.
In performing the logic prong of the test, we must consider the following societal interests advanced by open court proceedings:
(1) promotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system;
(2) promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings;