The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This criminal case is before the Court on the government's oral motion to seal trial exhibits [Docket Entry dated April 16, 2008] and the government's written Motion to Seal Certain Trial Exhibits [Doc. 155], in which the government requests that the Court enter an order sealing Government Exhibits 8B, 10, 11, 17, 20, 33, 45, 46, 46A. Defendant has not responded and the time for doing so has now passed.
The defendant was charged as an accessory after the fact and misprision of a felony for his conduct related to a fatal carjacking which took place in January 2007. Others allegedly involved in the commission of the carjacking have been indicted in state court and are awaiting trial. Defendant's trial began in this Court on April 7, 2008. During trial, the government introduced multiple exhibits in support of its case including: photographs of the bodies of the victims of the carjacking as they were found (exhibits 11 and 17); a video recording of defendant's statement to the police (exhibit 33); records relating to the vehicle driven by one of the victims of the carjacking (exhibit 20); and telephone records of various individuals (exhibits 8B, 10, 45, 46, 46A, and 47). On April 16, 2008, the jury returned a verdict finding defendant guilty of both Counts One and Two of the Second Superseding Indictment. After the jury returned its verdict, the government made an oral motion to seal trial exhibits. The Court instructed the government to file a memorandum in support of its position within seven days and gave the defendant an equivalent amount of time to respond.
There is both a constitutional right of access to judicial proceedings and a common law right. Nixon v. Warner Commc'ns., Inc., 435 U.S. 589 (1978). However, the right is not absolute under either source. Id.
The constitutional right of access to a criminal trial stems from both the First Amendment freedom of press and the Sixth Amendment right to a public trial. It is clear that under the First Amendment, the public and the press have "a right to be present" and the "rights to speak and to publish concerning what takes place at a trial." Beckham v. Post-Newsweek Stations, Mich., Inc., 789 F.2d 401, 406 (6th Cir. 1986) (quoting Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555, 576-78 (1982). In regard to the Sixth Amendment right, "[t]he requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and report what they have observed." Warner Commc'ns., Inc., 435 U.S. at 610. The Constitution does not give the public or the media the right of physical access to tapes and transcripts of what takes place during trial. Beckham, 789 F.2d at 409 (quoting Warner Commc'ns, 435 U.S. at 609). Accordingly, when the media and public are given unfettered access to attend all proceedings and members of the media are permitted to publish what they have heard and seen in the courtroom, there is no constitutional violation. See Beckham, 789 F.2d at 407.
During the trial in this case, there were no restrictions on the public's and the media's right to be present and observe the court proceedings. Even during the beginning stages of the bifurcated jury selection process, when space was limited due to the large number of prospective jurors, the Court played the audio from the courtroom over the speaker system in another courtroom so that members of the public and media were able to listen. During the entirety of the trial, seats were reserved for members of the media in the front row of the gallery, and members of the media were permitted to take notes and make sketches of court proceedings. Exhibits admitted into evidence were shown on large screens facing the gallery. The public and media viewed and heard the video of defendant's statement to police just as the jury did. Though the courtroom was near capacity at some points during the trial, aside from during the reading of the verdict, there was always extra space available. The public and the media were allowed unfettered access to the proceedings and, accordingly, there was no constitutional violation of the right of access to judicial proceedings.
In regard to the common law right of access to judicial records and documents, a trial court operates under a presumption in favor of access but has the discretion to withhold access if warranted by the facts and circumstances of a particular case. Warner Commc'ns, 435 U.S. at 599, 602. If the "potential for public benefit [is] less than the potential harm to the fair and orderly administration of criminal justice," the Court can prohibit the inspection and copying of trial exhibits. Beckham, 789 F.2d at 411. In balancing the public benefit and the fair and orderly administration of justice, factors for the court to consider include:
[T]he court's supervisory powers, the amount of benefits to the public from the incremental gain in knowledge that would result from hearing the tapes themselves, the degree of danger to defendants or persons speaking on the tapes, the possibility of improper motives on the part of the media such as promoting public scandal or gratifying private spite, and any special circumstances in the particular case.
Id. at 409 (citing Warner Commc'ns, 435 U.S. at 599-603). Specific factors considered by the district court in Beckham in determining that it would not deny the right to copy documentary exhibits admitted into evidence at trial included that the records were business records that were not inflammatory in nature, they were not inaccurate, there was little danger of misinterpretation, there was no danger of harm to third parties, and many of the documents, including ...