United States v. Joseph Salim Chagra v. San Antonio Light Division of the Hearst Corp., the Express-News Corporation and Tom Nelson, Movants-Appellants

The first amendment to the Constitution accords the public and the press the right of access to a criminal trial. We here consider whether that guarantee forbids a district court's closure of a pretrial bail reduction hearing when the defendant, to protect his right to a fair trial, requests that the hearing be held in camera.

In 1979, United States District Judge John H. Wood, Jr. was shot in the back and killed as he prepared to enter his automobile outside his home in San Antonio, Texas. His assassination was immediately headline news in San Antonio and throughout much of the nation. For almost three years thereafter the FBI conducted what the press characterized as "the most extensive FBI investigation since the assassination of former President John F. Kennedy." The FBI agent who directed the investigation was quoted as describing the Wood murder as "the crime of the century." The press coverage of the murder and its investigation was described by reporters for San Antonio's major newspapers as "very extensive" and "intensive."

On April 15, 1982, an indictment was returned alleging that El Paso attorney Joseph S. Chagra, his brother Jamiel A. ("Jimmy") Chagra, his brother's wife, Elizabeth Nichols Chagra, Charles Harrelson, and Harrelson's wife, Jo Ann Harrelson, conspired to murder Judge Wood. The indictment also charged Harrelson and Jimmy Chagra with the actual murder of Judge Wood and accused all the defendants of conspiracy to obstruct justice. A separate indictment charged Joseph Chagra, Jimmy Chagra, Elizabeth Chagra and Leon Nichols with conspiracy to defraud the United States and attempted evasion of income taxes.1 Understandably and predictably, the press treated the indictment as a major news story, affording it front-page headline status and publishing numerous stories covering various aspects of the case.

Bail for Chagra was set at $1,500,000 in the case involving the murder of Judge Wood and $100,000 in the income tax case. When Chagra moved for its reduction, a hearing on the motion was assigned to a United States Magistrate. The hearing commenced in open court. Chagra orally moved to bar the United States from introducing a statement made by him on March 20, 1982, to Federal Bureau of Investigation agents. He claimed that the statement was made during plea negotiations.2 Chagra asked the magistrate to close the hearing on his motion because the evidence adduced there would, if publicized, prejudice his right to a fair trial. Reporters for the San Antonio Light and the San Antonio Express News objected to closure of the hearing. The government took no position. The magistrate ordered a portion of the hearing closed and sealed the transcript of the closed proceedings. The hearing was closed from 10:30 a.m. on April 22, 1982, until shortly after noon on the same day. The magistrate opened the remainder of that day's hearing to the public. However, he announced his intention to hear additional matters in camera the next morning.

The next day the magistrate held a hearing on the newspapers' objections to closure. Chagra again moved to close the bail reduction hearing during testimony concerning the admissibility of his March 20 statement. After hearing argument by counsel for the two newspapers and the defendant, the magistrate closed the remainder of the bail reduction hearing. He completed the hearing that day, certifying to the district court his conclusion that Chagra's statement to the FBI was admissible for the purpose of determining appropriate conditions of pretrial release.

Both newspapers asked the district court to vacate the magistrate's closure order, to make the sealed transcripts public, and to direct the magistrate to conduct all further proceedings in the Chagra case publicly. On April 27, 1982, Chief District Judge William S. Sessions heard arguments on the newspapers' motions. On April 29, Chief Judge Sessions entered a Memorandum Opinion and Order, concluding that there was "not a sufficient evidentiary basis in the record to support the Magistrate's order closing the courtroom to the members of the public and press," and that "the Magistrate did not give adequate consideration to the alternatives to closure that would protect the fair trial rights of the Defendant[s] ...." Accordingly, the court scheduled a hearing to accept evidence on the propriety of the magistrate's closure order.

The hearing was held on May 3, 1982. The newspapers were afforded a full opportunity to participate. On May 4, 1982, the district judge ruled that the magistrate's closure order was justified. In an opinion that followed his understanding of Justice Blackmun's dissenting opinion in Gannett Co. v. DePasquale, 443 U.S. 368, 406, 99 S.Ct. 2898, 2919, 61 L.Ed.2d 608, 638 (1979), he first concluded that public dissemination of the exhibits and transcripts of the closed bond reduction hearing would create a serious threat to Chagra's right to a fair trial. He found that substantial publicity concerning the Chagra case had been disseminated in San Antonio and throughout the state. In addition, he found that "extensive publicity" would likely continue. Noting the "speculative and accusatory" nature of the publicity already surrounding the case, the court anticipated substantial difficulty in empaneling an impartial jury.

The district judge further determined that the newspapers' circulation was concentrated in communities where most of the prospective jurors for a trial in San Antonio resided. Therefore, he thought it "very likely" that the evidence adduced at the closed hearings, if released, would reach a "substantial percentage" of the prospective jurors. Moreover, the district judge concluded that the sealed record contained information "of a highly prejudicial and inflammatory nature" that "could not be easily purged through voir dire."

Concluding that public dissemination of the information in the closed hearing would "in reasonable likelihood create a serious threat" to Chagra's fair trial right, the district judge then considered the alternatives to closure, principally moving the trial elsewhere in Texas, and found "a strong likelihood that they would not adequately protect the Defendant's fair trial rights." Finally, the district judge considered whether closure would be effective in protecting against the perceived harm to Chagra's fair trial right. He decided that it would. Recognizing that he should impose only those restrictions necessary to assure a fair trial, the judge declared that the magistrate properly closed portions of the bail reduction hearing and ordered the transcript of those hearings to remain sealed.

Later Chagra and the other defendants each moved for a change of venue. The district judge deferred final ruling on these motions. Explaining the reasons for his action fully in a fourteen-page order, he stated that he would first attempt to select a fair and impartial jury through voir dire in the San Antonio Division. If successful, he would then deny the motions. If unsuccessful, he would reconsider the motions and determine an appropriate forum. Portions of the resumed bond hearing were closed on May 4, 1982. Segments of hearings on other pretrial motions, ranging from 15 minutes to one hour and 45 minutes, were closed at various times from August 4, through August 13, 1982. However, these closures are not challenged in this appeal.

Then the shape of the case changed completely. A summary of Chagra's March 20 statement was introduced and made public at a pretrial hearing held on April 12, 1982. Moreover, after this appeal was filed, Chagra entered a plea of guilty to conspiracy to murder. The plea was pursuant to a plea bargain in which it was agreed that Chagra would testify against all the defendants charged with Judge Wood's murder except his brother and would, in return, receive a ten-year sentence. A jury was selected for the trial of defendants Elizabeth Chagra, Charles Harrelson and Jo Ann Harrelson. The judge, therefore, denied their motion for a change of venue. Venue for the murder trial of Jimmy Chagra was changed to Jacksonville, Florida.

We consider first several preliminary questions, starting with the appealability of the order, for it was, of course, interlocutory. See In re Chicken Antitrust Litigation, 669 F.2d 228, 235 (5th Cir.1982). However, some orders entered during the course of a trial are final in effect and appealable by virtue of what is known as the collateral order doctrine. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The decisive factors are whether the order at issue: (1) is a final disposition by the district court; (2) is collateral to the rights asserted in the main action; (3) entails a risk of irreparable injury; and (4) involves a serious and unsettled question of law. United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978). Applying these tests in Gurney, we found that the collateral order doctrine permitted a similar appeal from a closure order. Id.; see generally 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 110.10 (1982); 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure Sec. 3911 (1976).

The issue has not been rendered moot by the completion of the hearing to which access was sought. The controversy is capable of repetition under circumstances in which each repetition may evade review. See Globe Newspaper Co. v. Superior Court, --- U.S. ----, ----, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248, 254 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973, 981 (1980) (plurality opinion); Gannett Co. v. DePasquale, 443 U.S. 368, 377-78, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608, 619-20 (1979). We turn, then, to the question of the standing of the appellants to prosecute this appeal and, if they have the right to appeal, whether there are before us those adversary parties essential to the existence of a case or controversy.

The newspapers and reporter, none of whom was a party to the criminal case, seek relief only by appealing the trial court's order; they have not sought mandamus. Chagra disclaims further personal interest in restricting access to the transcript and exhibits of the closed bond hearing. He states only that "the rights to a fair trial of other defendants sought to be disclosed [sic] are involved." (Emphasis added.) Those other defendants have not sought to intervene or to appear in any fashion. Indeed, the murder trial of the Harrelsons and Elizabeth Chagra has already resulted in a verdict of guilty and Jimmy Chagra's trial on the murder indictment was recently completed in Jacksonville, Florida. The prosecution has never supported closure and has not opposed press access to the closed hearings or to the transcripts of those hearings.

"Ordinarily only a litigant who is a party below and who is aggrieved by the judgment or order may appeal." Burleson v. Coastal Recreation, Inc., 572 F.2d 509, 511 (5th Cir.1978) (emphasis added; cites omitted).3 However, the right to appeal is not expressly limited to parties by the relevant statute. 28 U.S.C. Sec. 1291 (1976).4 "[I]f the decree affects [a third party's] interests, he is often allowed to appeal." West v. Radio-Keith-Orpheum Corp., 70 F.2d 621, 624 (2d Cir.1934).

Thus, a non-party may appeal orders for discovery if he has no other effective means of obtaining review.5 Similarly, non-parties have been allowed to appeal orders granting6 or denying7 further disclosure of documents already in the possession of a court or grand jury. Non-party creditors who assert rights in receivership proceedings may appeal orders affecting their legitimate interests.8 If an injunction extends to non-parties, they may appeal from it.9 Similarly, a non-party may generally appeal an order holding him in civil contempt.10 Attorneys and experts, though non-parties, may sometimes appeal orders relating to their fees.11 Finally, unindicted co-conspirators may appeal an order refusing to strike their names from the indictment.12

The courts differ on whether the media, though not parties to a case, may appeal closure orders or must seek other avenues of review.13 Some, including ours, have allowed such appeals. See Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 425-26 (5th Cir.1981); United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); United States v. Schiavo, 504 F.2d 1 (3d Cir.) (en banc), cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974); R.W. Page Co. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982); State v. Allen, 73 N.J. 132, 373 A.2d 377 (1977). Others allow an appeal after one of the media has "intervened" in the underlying action for the purpose of challenging the closure order. See United States v. Criden, 675 F.2d 550, 552 (3d Cir.1982); United States v. Cianfrani, 573 F.2d 835 (3d Cir.1978); News American Div., Hearst Corp. v. State, 294 Md. 30, 43-46, 447 A.2d 1264, 1271-72 (1982); Patuxent Publishing Corp. v. State, 48 Md.App. 689, 429 A.2d 554 (1981); Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710, 406 A.2d 137 (N.H.1979); Richmond Newspapers, Inc. v. Commonwealth, 22 Va. 574, 281 S.E.2d 915 (1981). A few courts have reviewed closure orders on application for a writ of certiorari. See Edward A. Sherman Publishing Co. v. Goldberg, 443 A.2d 1252 (R.I.1982); Rapid City Journal Co. v. Circuit Court, 283 N.W.2d 563 (S.D.1979).

Other courts, noting that non-parties may not generally appeal, hold that closure orders are reviewable only on petition for writs of prohibition or mandamus. See United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir.1982); Sacramento Bee v. United States District Court, 656 F.2d 477, 481 (9th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2257, 72 L.Ed.2d 861 (1982); United States v. Sherman, 581 F.2d 1358, 1360 (9th Cir.1978); CBS, Inc. v. Young, 522 F.2d 234, 237 (6th Cir.1975); State ex rel. Gore Newspapers Co. v. Tyson, 313 So.2d 777 (Fla.Ct.App.1975).14 In the District of Columbia, a motion filed by the press objecting to a closure order is treated as initiating a separate miscellaneous civil proceeding. See United States v. Mitchell, 386 F.Supp. 639, 640 (D.D.C.1975). Taking yet another approach, the court in State v. Bianchi, 92 Wash.2d 91, 92-93, 593 P.2d 1330, 1331 (1979) (en banc), indicated that closure orders could be challenged by a separate action for declaratory judgment, mandamus, or prohibition.

The rule previously adopted by this circuit compels our adherence.15 This appeal is, therefore, properly before us.

The constitutional limitation that we consider only cases or controversies "limit[s] the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 382, 100 S.Ct. 1194, 1199, 63 L.Ed.2d 467 (1980); Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). It is thus "elemental that there must be parties before there is a case or controversy." Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 1696, 44 L.Ed.2d 274, 282 (1975). See generally 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure p 5350, at 59 (Supp.1980). In a mandamus action, even if there is no longer an adverse party, the writ is directed to the judge as the respondent. Fed.R.App.P. 21(a). In this case, as discussed above, our jurisdiction to consider extraordinary writs was not invoked.

After Chagra lost interest in this case, the court was presented an issue without an opponent. The newspapers and reporter were before us to present their position on a question of importance. But there was no one to present the other side. Without opponents, the adversary system cannot function. That their erstwhile contestant had retired from the field was not the fault of the appellants, but our jurisdiction is not predicated on the blamelessness of the party who invokes it.

The issue is, however, of continuing importance to the appellants, to the district court, and to other courts frequently presented with such problems. Following the precedent first established by the Supreme Court when one of the erstwhile adversaries in a case before it withdrew, a precedent later followed by the Third Circuit, we, therefore, appointed counsel as amicus curiae to support the decision of the district court. See Mathews v. Weber, 423 U.S. 261, 265 n. 2, 96 S.Ct. 549, 552 n. 2, 46 L.Ed.2d 483, 489 n. 2 (1976); United States v. Criden, 675 F.2d 550, 553 n. 4 (3d Cir.1982).16 Because we find that the appeal is properly before us and a case or controversy is presented, we proceed to the merits.

In doing so, we reject appellants' suggestion that the district court should have ordered the transcript of the hearing unsealed immediately upon concluding that the magistrate had established an insufficient evidentiary basis for closure. He retained statutory power to "accept, reject, or modify" the magistrate's order, and was authorized to "receive further evidence" in considering whether to do so. 28 U.S.C. Sec. 636(b)(1) (Supp. V 1981). His options were not limited to the wholesale acceptance or rejection of the magistrate's order.

The first amendment guarantees the public and the press the right to attend criminal trials unless it is demonstrated that some curtailment of that right is required "to protect defendant's superior right to a fair trial or that some other overriding consideration requires closure." Richmond Newspapers v. Virginia, 448 U.S. 555, 564, 100 S.Ct. 2814, 2821, 65 L.Ed.2d 973, 982 (1980) (Burger, C.J., joined by White and Stevens, JJ.). "Although there was no opinion of the Court in [Richmond Newspapers ], seven Justices recognized that this right of access is embodied in the First Amendment ..." Globe Newspaper Co. v. Superior Court, --- U.S. ----, ----, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248, 254 (1982).17 While Justice Powell did not participate in Richmond Newspapers, his concurring opinion in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1974) recognized a first amendment right to attend judicial proceedings. Id. at 397-405, 99 S.Ct. at 2914-17, 61 L.Ed.2d at 632-37. We start, then, on the firm premise that the public and the press have a right of access to criminal trials.

The closure at issue here, however, was of a pretrial motion to reduce bail. Thus, Richmond Newspapers does not, by itself, provide the answer in this case. In Gannett, the Court ruled that the sixth amendment does not guarantee the public or press the right to attend pretrial suppression motion hearings. 443 U.S. at 391, 99 S.Ct. at 2911, 61 L.Ed.2d at 628. That decision, however, did not resolve the existence of a first amendment right to attend pre-trial hearings. The majority assumed that such a right existed but ruled that it had not been abridged. Id. at 392, 99 S.Ct. at 2911, 61 L.Ed.2d at 629. The dissent explicitly did not reach the issue of first amendment access. Id. at 447, 99 S.Ct. at 2940, 61 L.Ed.2d at 664. Justice Rehnquist thought it clear that no such first amendment right existed. Id. at 404, 99 S.Ct. at 2918, 61 L.Ed.2d at 636-37. Only Justice Powell stated that he would "hold explicitly" that the newspaper reporter "had an interest protected by the First and Fourteenth Amendments in being at the pretrial suppression hearing." Id. at 397, 99 S.Ct. at 2914, 61 L.Ed.2d at 632 (footnote omitted).

Since Richmond Newspapers and Gannett were decided, the Third and Ninth Circuits have recognized a first amendment right to attend pretrial suppression motion hearings.18 United States v. Brooklier, 685 F.2d 1162, 1169-71 (9th Cir.1982); United States v. Criden, 675 F.2d 550, 555 (3d Cir.1982). These decisions rely primarily on the nature of the suppression motion hearing, "often ... the most critical stage of a criminal proceeding." Criden, 675 F.2d at 556. Moreover, each court noted that the suppression hearing often involves questions of great public concern, such as the propriety of police conduct, and, therefore, awakens the same reasons for public access as the trial itself. Brooklier, 685 F.2d at 1170-71; Criden, 675 F.2d at 557.

One recent decision addresses directly the public's right to access to hearings concerning conditions of pretrial release. In United States v. Edwards, 430 A.2d 1321, 1343-46 (D.C.App.1981) (en banc), the District of Columbia Court of Appeals held that the press and public enjoy a first amendment right of access to pretrial detention hearings. The court reviewed the policies underlying the tradition of open judicial proceedings and found them applicable to hearings on pretrial release. Id. at 1344-45.19

In Richmond Newspapers, the Court stressed the "unbroken, uncontradicted history" of public trials in recognizing a first amendment right of access. 448 U.S. at 573, 100 S.Ct. at 2825, 65 L.Ed.2d at 987 (plurality opinion); see also id. at 602, 100 S.Ct. at 2841, 65 L.Ed.2d at 1006 (Blackmun, J., concurring). Bond reduction hearings do not have a similar history. Although bail is most often set at the defendant's first appearance before a magistrate or justice of the peace,20 presumably in open court, this is not always the procedure. The initial bail determination is often made by the judge when an indictment is returned or by the magistrate when an arrest warrant issues; the amount is endorsed on the warrant.21 In the case of state offenses a common procedure is for a nonjudicial officer, such as the police desk sergeant, to set bail in accordance with a fixed schedule.22 Even in the federal system, magistrates do not always make the bail determination in open court. Their decision may also be made at home or in chambers. State magistrates sometimes fix amounts at the police station, or during telephonic communications with the jail.23 These informal procedures serve an important purpose. They allow the expeditious release of the defendant.

Access to bail reduction hearings, however, should not be foreclosed because these proceedings lack the history of openness relied on by the Richmond Newspapers court. In Criden, the Third Circuit noted that the "relative importance of pretrial procedure to that of trial has grown immensely in the last two hundred years." 675 F.2d at 555. Bail procedures have likewise become more significant. The Federal Bail Reform Act of 1966, Pub.L. No. 89-465, 80 Stat. 214-16 (1966) (codified at 18 U.S.C. Secs. 3141-3156 (1976)), has been described as "the most significant legislative reform of the criminal process of this century." Duke, Bail Reform for the Eighties, 49 Fordham L.Rev. 40, 46 (1980). Because the first amendment must be interpreted in the context of current values and conditions, Criden, 675 F.2d at 555; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-95, 89 S.Ct. 1794, 1804-09, 23 L.Ed.2d 371, 386-92 (1969), the lack of an historic tradition of open bail reduction hearings does not bar our recognizing a right of access to such hearings. See BeVier, Like Mackerel in the Moonlight: Some Reflections on Richmond Newspapers, 10 Hofstra L.Rev. 311, 325-28 (1982).

The first amendment right of access is, in part, founded on the societal interests in public awareness of, and its understanding and confidence in, the judicial system. Criden, 675 F.2d at 556.