The opinion of the court was delivered by: NICHOLAS H. POLITAN
This MATTER having come before the Court upon the application of the Associated Press, the Newark Morning Ledger Company and the New Jersey Press Association to rescind the Order of this Court and unseal the transcript of the jury voir dire and make public the names and addresses of the Antar jurors, and the United States having appeared by its counsel (Michael Chertoff, United States Attorney for the District of New Jersey, and Jayne K. Blumberg, Assistant United States Attorney, appearing), and the Associated Press having appeared by its counsel (Richard P. O'Leary, Esq., appearing), and the Newark Morning Ledger Company having appeared by its counsel (Donald A. Robinson, Esq., appearing), and the New Jersey Press Association having appeared by its counsel (Thomas J. Cafferty, Esq., appearing), and the Court having considered the written submissions and arguments of counsel, and good cause having been shown, the Court hereby makes the following findings for the reasons more fully explained in the accompanying Letter Opinion dated December 9, 1993:
1. The Associated Press, the Newark Morning Ledger Company, and the New Jersey Press Association (collectively, the Press), seek the names and addresses of the jurors, at least in part, for the purpose of questioning the jurors about their internal deliberations.
2. There exists a First Amendment right of access to the voir dire transcript wherein the jurors reveal their names and places of residence.
3. However, equally existent is a compelling governmental and/or societal interest in promoting and maintaining the secrecy of the jury deliberative process and the privacy of jurors. Providing unfettered access to the press and to the public in general is contrary to this interest and presents a substantial threat to the administration of justice by endangering the deliberative process.
4. Accordingly, in seeking to accommodate these competing interests,
IT IS on this 9th day of December, 1993, hereby
1. The transcript of the jury voir dire be and hereby is unsealed and made available for public inspection as of Monday, December 13, 1993.
2. Any person who comes into possession of the transcript of the jury voir dire and the juror identifying information contained therein is subject to certain limitations regarding the manner in which post-verdict juror interviews are conducted in order to protect the jurors' privacy and to promote the interest of maintaining the secrecy of the jury deliberative process, which limitations are set forth as follows:
(a) no juror is under any obligation to grant an interview nor may any juror be compelled to do 50;
(b) repeated requests of a juror for an interview by any person or any associate of that person are strictly prohibited;
(c) once a juror expresses a desire to conclude an interview already in progress, the interviewer must immediately cease all questioning;
(d) no inquiry may be made into the specific votes, statements, opinions or other comments of any juror during deliberations other than the juror being interviewed.
3. A copy of this Order shall be distributed to petitioners by their respective counsel.
4. A copy of this Order shall be distributed with the transcript of the voir dire to all persons who request a copy of the transcript.
5. Any person who violates any provision of this Order may be held in contempt or otherwise sanctioned by this Court.
6. This Order shall take effect upon filing and, for good cause shown and on written notice, counsel for the United States or for the parties identified above may move this Court for the modification of its terms and conditions.
In the instant motion, various members of the press, cloaked in robes bearing the sign "First Amendment," request the Court to release the names and addresses of the jurors who served in the trial of United States v. Eddie Antar, et al. Stripped of all its sanctimonious rhetoric, however, this application by the press is merely an attempt to convert the orderly constitutional process of a trial by jury and all its safeguards and securities into trial by press--but only in cases that are sensational and high profiled. Indeed, were this a routine civil litigation or a run-of-the-mill criminal drug case, the press clearly would not be interested in the names of jurors nor the internal deliberations of the jury.
At the outset, it should be noted what this case is NOT about. It is not about, as classified by counsel for the press at the hearing on its application, the return to a "Star Chamber." It is not about the inability of the press to obtain full access to the entire public proceeding. It is not about the right of the press to sensationalize and on occasion to cause a disruption in a trial by its reporting. It is not about censoring the press. It is not about impeding, in any way, shape, manner or form, the public's right to know and the press' right to comment upon any aspect of a public trial. On the contrary, it is about the right of the defendant in any case to have jurors free to discuss frankly and openly the case with fellow jurors during the deliberations. It is about the right of the jurors to be assured that their frank, candid and sincere discussions will not be open to public debate, ridicule or condemnation as a result of the publication of their comments and opinions in any form by the press. Indeed, logic dictates that such publication would have a chilling effect upon the free flow of juror deliberations and could cause a juror or jurors to refrain from taking a position--albeit unpopular or otherwise--for fear of the public scorn or criticism which might follow from exposure of the jury's deliberative process. It is about the preservation of the very precious right of a trial by jury unencumbered by any extraneous force save the judge's instructions on the law.
Having set forth the issue in its proper context, I turn to the facts which gave rise to the instant motion.
On June 1, 1993, jury selection in the criminal trial of United States v. Eddie Antar, et al, 839 F. Supp. 293, commenced. The events preceding the trial of Eddie Antar, Mitchell Antar and Allen Antar were widely publicized by the media. Eddie Antar founded the now defunct consumer electronics company known as Crazy Eddie. The company was best known for its raucous television commercials in which the Crazy Eddie pitchman proclaimed in a loud, shrill voice that Crazy Eddie's prices were "INSANE." The Crazy Eddie chain of 43 stores collapsed in late 1989 amid allegations that Eddie Antar among others had carried out one of the "most celebrated stock scandals in U.S. history" in which investors were bilked of tens of millions of dollars. See Robert Rudolph, Behind Bars: Antar Ordered Held Without Bail, Star-Ledger (Newark), Jan. 12, 1993. In early 1990, Eddie Antar fled the United States after this Court ordered him to repatriate $ 73 million to the United States Government as a result of civil stock fraud charges brought by the Securities and Exchange Commission. The criminal indictment followed. After a two-year international manhunt for Antar, spearheaded by United States Marshal Arthur Borinsky, Antar was located in Israel and eventually extradited to the United States in January 1993 to stand trial on the criminal indictment. See Robert Rudolph, Fugitive "Crazy Eddie" Captured in Israel, Star-Ledger (Newark), June 25, 1992, at 1.
As a result of the wide coverage of these events and the expected length of the trial, the Court requested a jury pool of 150 potential jurors. Because of the large number of potential jurors, there was a shortage of seating in the courtroom. Consequently, the Court requested that the representatives of the media wait outside the courtroom. The members of the media voluntarily complied with that request. During the following two days of voir dire and the remainder of the trial, the courtroom was open to the public.
The AP's interest in the names and addresses of the jurors is obvious -- it would like to write a story after the verdict and would like to interview the jurors for that story. To protect any concern your Honor may have about communicating with the jurors before a verdict is rendered, I would suggest that your honor disclose the names and addresses of the jurors to me. As an officer of the court, I represent that I would not disclose this information to the AP until after the verdict has been returned.
If I may suggest, rather than impose upon the jurors at their homes, and to minimize any intrusion in their lives, I respectfully request that the Court provide a room where the jurors and reporters may speak after the jury is excused. U.S. District Judge Avern Cohn suggested the solution several years ago in a highly publicized case, and it worked to protect ...