Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Crim. No. 86-00150.
Higginbotham, Mansmann, and Rosenn, Circuit Judges.
This case presents the question of what procedure is appropriate to protect the First Amendment rights of the press and the public who are present in court when a closure motion is made during the course of a criminal trial. We expressly reserved that question in United States v. Criden, 675 F.2d 550, 560 (3d Cir. 1982) (Criden II). In Criden II we required that motions for closure of pretrial hearings must be posted on the docket and that, before closing a pretrial hearing, the court must consider alternatives to closure and state on the record its reasons for rejecting them. We now extend those requirements to closure motions made during the course of a criminal trial.
Furthermore, we hold that closure motions made out of the public's hearing, e.g., during a conference in chambers, must be renewed in open court before disposition. Representatives of the press and public who are present in the courtroom and subject to removal as a result of a closure order must, upon contemporaneous motion, be allowed a hearing on their objections within a reasonable time in advance of closure. Members of the press and public who are removed from the courtroom retain the right to a hearing upon petitioning for access to sealed transcripts.
Because the appellant Pittsburgh Press was not afforded a hearing on its objections to closure or on its petition for access to transcripts, we will vacate the order of the district court and remand for a hearing on whether there still exists adequate reason to deny access to the sealed transcripts.
A reporter for the Pittsburgh Press Company ("the Press"), Janet Williams, attended the criminal trial of defendant Hanna Badaoui Raffoul during the opening statements and other preliminary proceedings. Raffoul was charged with importing heroin into the United States. The government's evidence showed that on June 15, 1986, Raffoul, a Lebanese native who had previously lived in the United States, arrived in Pittsburgh by airplane and with heroin concealed in a suitcase.
Raffoul, in attempting to establish his defense of duress, testified on direct examination, with the aid of an interpreter, that two armed individuals had threatened to kill him and his wife and children in Lebanon unless he agreed to transport "something" to the United States. Raffoul testified that there are no police in Lebanon to protect him and that "they are running the show there." When asked "who is running the show there," Raffoul refused to answer on the ground that "they will kill [my] children."
The district judge ordered Raffoul to answer the question and threatened to hold him in contempt if he refused to answer on cross-examination. The court then recessed to give defense counsel an opportunity to confer with his client. During the recess a conference was held in chambers during which the judge suggested that he would entertain a closure motion by the defendant.
Newsreporter Janet Williams was not present in the courtroom during the beginning of Mr. Raffoul's testimony. She returned to the courtroom during the recess when the conference in chambers was taking place. In her affidavit she said that the courtroom clerk cleared the courtroom during the recess and that Ms. Williams was not permitted to object to the court. The record shows that subsequently, defense counsel moved in closed court for closure and the court granted the motion apparently on the basis of information obtained in conference and at the sidebar regarding threats to Raffoul's family. The court then formally ordered the courtroom closed and locked and observed that there was no one in the courtroom at that time. Defense counsel responded, "Judge, the Marshals I think already made sure of that." The courtroom was closed during Raffoul's testimony on September 16, 1986 and reopened during the remainder of the trial.
During the course of the closed portion of the trial, counsel for the Press appeared in order to object to closure and to request a hearing. Counsel was denied access to the courtroom. Approximately 30 minutes later during a recess the district judge refused to hear counsel's objections and requested that counsel file a motion with the court. On the following day counsel complied with the court's directive by filing a Petition to Intervene and for Access to the Sealed Transcript. Counsel requested a hearing on the petition.
On September 18, 1986 the court filed an order denying the petition without a hearing, reasoning that the right of public access was overridden in this case by "a grave risk of serious injury to innocent third parties." On October 2, 1986, the Press filed a motion to reconsider the denial of access to the sealed transcripts. The motion to reconsider was denied, again without a hearing, in an order filed by the court on October 3, 1986.
The Press appeals from the district court's denial of reconsideration of its motion for access to sealed transcripts of a portion of the criminal trial of Hanna Badaoui Raffoul. An order granting or denying access to portions of a trial record is appealable as a final order pursuant to 28 U.S.C. § 1291. United States v. Smith, 787 F.2d 111, 113 (3d Cir. 1986) (Smith II). The Press asserts on appeal that it was deprived of significant First Amendment rights without due process of law, first when its reporter was removed from the courtroom over her objection, without prior notice, and without a hearing on the question of closure; and second, when without a hearing the Press was ...