Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, March 24, 2006

Fourth Circuit Grants In Part, Denies In Part Request for Access to Exhibits, Other Materials In Moussaoui Case

The Associated Press and several other news organizations appealed the district court's order denying access to exhibits entered into evidence "until the trial proceedings are completed, at which time requests for these materials will be considered" (United States v. Moussaoui (E. D. Va. Feb. 14, 2006)) as well as another order of the same date which sealed transcripts of bench conferences.

The 4th Circuit has held that with respect to petitioners' argument that the February 14th orders are "facially invalid because they were issued without prior notice and an opportunity to be heard", "any defects that existed at the time of the February 14 orders have been cured by subsequent proceedings." With respect to the documentary exhibits, the appellate court held, "[w]e have little difficulty concluding that the district court did not abuse its discretion in refusing to provide access to items that have been admitted into evidence but that have not yet been published to the jury, or that have been published only in part. We therefore deny the petition for a writ of mandamus to the extent that Petitioners seek access to any documentary exhibit that falls into this category..."

With regard to documentary exhibits "that have been admitted into evidence and fully published to the jury, we conclude that the district court abused its discretion in denying access....As noted above, the district court identified two concerns in disallowing any contemporaneous access to exhibits: juror taint and administrative difficulties. The concern for juror taint is not well taken regarding exhibits that have been fully published to the  jury because it is unlikely that simply seeing the evidence again through a media publication will endanger Moussaoui's right to a fair trial....The administrative concerns of the district court are also insufficient...We do not doubt that the administrative burdens facing the district court are enormous....However...there are ways to ease the incremental administrative burdens that would arise from accommodating...First Amendment right of access, such as providing access to one copy of an exhibit...."

WIth regard to access to transcripts of bench conferences, the Fourth Circuit held that "Petitioners' contention that they are entitled to without merit. The Supreme Court has indicated that the existence of a First Amendment right to observe trial proceedings does not necessarily extend to all parts of a trial....And, bench conferences traditionally are not open to the public....Petitioners maintain, however, that they do have a First Amendment right to review transcripts of bench conferences as part of the proceedings that are published daily....Assuming that there is a constitutional or common law interest in eventual release of transcripts...this right is amply satisfied by prompt post-trial release of transcripts....We therefore deny Petitioners' mandamus petition...."

Read the entire ruling here.

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