CALEB DANIEL HUGHES, APPLICANT V. THE WASHINGTON POST COMPANY No. A-516 In The Supreme Court Of The United States October Term, 1990 On Application To Stay The Order Of The United States District Court For The Eastern District Of Virginia Unsealing Portion Of Affidavit For Search Warrant Pending Consideration Of A Petition For A Writ Of Certiorari Memorandum For The United States As Amicus Curiae In Opposition 1. Applicant has been charged by the state grand jury sitting in Fairfax County, Virginia, with abducting a five-year old girl with intent to defile her, in violation of Va. Code Ann. Section 18.2-49. Applicant's trial before the Fairfax County Circuit Court is scheduled to begin later this month. On respondent's motion before the United States District Court for the Eastern District of Virginia, the district court, over applicant's opposition, granted respondent's request to unseal -- in its entirety -- the affidavit supporting the federal warrant executed to search applicant's car in December 1989. Appl. Exh. 2, at 1-2. On appeal, applicant challenged only that aspect of the district court's order unsealing one paragraph of the affidavit. A divided panel of the court of appeals affirmed. Appl. Exh. 5, at 1-24. /1/ a. In early December 1989, a five-year old girl disappeared in Fairfax County, Virginia. The Federal Bureau of Investigation soon joined the investigation launched by the Fairfax County police department. On December 15, the FBI, with the authorization of the United States Attorney for the Eastern District of Virginia, applied to a United States magistrate in that District for a warrant to search applicant's car. That application, filed under seal, was supported by the affidavit of FBI Special Agent Dorsey summarizing the evidence gathered to date implicating applicant in the girl's disappearance. Magistrate Grimsley issued the search warrant on December 15, and placed the application and supporting affidavit under seal. Appl. Exh. 5, at 3-4; Appl. 4. On December 20, 1989, respondent filed a motion with Magistrate Grimsley to unseal the search warrant application and supporting affidavit. The United States opposed that motion on the ground that unsealing the documents would compromise the ongoing investigation. Magistrate Grimsley denied respondent's motion, and respondent sought no further review of that order. Appl. Exh. 3, at 1; Appl. Exh. 5, at 3-4; Appl. 4; Resp. C.A. Br. 1-2. Eleven months later, on November 19, 1990, applicant was charged by the Commonwealth of Virginia with abducting the girl with intent to defile her. Applicant was arraigned on November 26; his trial before the Fairfax County Circuit Court is scheduled for late January 1991. Appl. Exh. 5, at 4; Appl. C.A. Br. 1-2. b. On November 27, 1990, respondent filed a second motion with Magistrate Grimsley to unseal the federal search warrant application and supporting affidavit of FBI Special Agent Dorsey. Respondent grounded its motion on the "common law right of access to search warrants and supporting affidavits." Resp. C.A. Br. Attach. 1, at 2 (citing Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989)). /2/ Applicant opposed respondent's motion, contending that "release of any of the information in the (affidavit) would prejudice him and compromise his Sixth Amendment right to a fair trial." Appl. Exh. 5, at 4. /3/ The Commonwealth of Virginia submitted the affidavit of Robert F. Horan, Jr., the Commonwealth's Attorney for Fairfax County -- the prosecutor handling applicant's case. /4/ In that affidavit, the Commonwealth's Attorney stated that (s)ince (applicant's) indictment in this matter many facts that were referenced in the affidavit have been revealed to the public through various media sources, (and he therefore) no longer believe(s) that the entire affidavit need be kept "sealed" at this point in time. Appl. Exh. 7, at 2. Nonetheless, the prosecutor stated that page 5 of the affidavit contains a paragraph (second full paragraph on page 5) which contains information which is of a sensitive nature. It is (his) opinion, based on over twenty years of experience as Commonwealth's Attorney of Fairfax County, that the revelation of this information which has not yet been revealed would have an extreme adverse impact on (his) ability to pick a fair and objective jury and to assure (applicant) of a fair trial. Ibid. Accordingly, the Commonwealth's Attorney joined applicant's opposition to the extent it sought to keep that portion of the affidavit sealed. The United States, based on the representations of the Commonwealth's Attorney, agreed that the search warrant application and affidavit should be unsealed, with the exception of that one paragraph. U.S.C.A. Br. 6-7. /5/ c. After a hearing, Magistrate Grimsley denied respondent's motion on November 27. Appl. Exh. 1, at 1. He stated that "the common law right of the press and the media is subservient to the higher interest that the defendant is assured the right of a fair and impartial trial." Ibid. He then concluded that the United States (sic: applicant) has met its burden of establishing a higher value on the premature release of any supporting data in support of a search warrant that would tend to prejudice the right of the accused (applicant) to a fair and impartial trial. Ibid. In view of the uncertainty of the magistrate's order regarding use of the redacted affidavit prematurely disclosed to respondent, see note 5, supra, the parties immediately appeared before United States District Judge Bryan. d. After a hearing, the district court reversed the magistrate's ruling and ordered the affidavit unsealed in its entirety. Appl. Exh. 2, at 1-2. /6/ The court stated that "release in its entirety of the affidavit * * * will not generate publicity which will jeopardize (applicant's) right to a fair trial," because "(w)ith the exception of the (paragraph at issue), the information contained in the affidavit is essentially already in the public domain." Ibid. Moreover, the court determined that "(t)he public's right of access to the affidavit outweighs the danger publicity presents, a danger that can be overcome by a careful voir dire of the prospective trial jurors or by a change of venue, or both." Ibid. The court therefore held that "these measures can ensure an impartial jury for the trial of (applicant), untainted by any publicity flowing from the unsealing of the affidavit." Ibid. /7/ The court stayed for 24 hours that portion of its order unsealing the one paragraph of the affidavit at issue, pending applicant's seeking relief before the court of appeals. /8/ The court otherwise ordered that the "remaining of the affidavit, redacted to remove the above paragraph, shall be unsealed immediately." Appl. Exh. 2, at 2. e. Applicant noted an appeal to the Fourth Circuit on November 28 and sought a further stay pending disposition of that appeal. That day, Circuit Judge Widener granted applicant's request for a stay pending appeal, directed expediting briefing, and set the case for argument on December 4, 1990. Appl. Exh. 3, at 1-3. f. On January 2, 1991, a divided court of appeals affirmed. Appl. Exh. 5, at 1-24. /9/ As a threshold matter, the court determined that since the "common law qualified right of access to the warrant papers is committed to the sound discretion of the judicial officer who issues the warrant," id. at 5 (quoting Baltimore Sun Co. v. Goetz, 886 F.2d at 65), it would review the "district court's decision whether to grant access or to seal the document under an abuse of discretion standard," Appl. Exh. 5, at 5-6. /10/ As the court explained, here the "district court balanced the public's right of access with the defendant's assertions that release would compromise his Sixth Amendment right to a fair trial." Id. at 7-8. "The rationale for investing this particular balancing process at the trial court level" lies in the fact that "(e)ach specific situation is different and discretion is best exercised 'in light of the relevant facts and circumstances of the particular case.'" Id. at 8 (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 599 (1978)). /11/ Moreover, the court pointed out that "(t)rial judges are * * * best situated to understand the subtle factors unique to a given geographic area or population that may either attentuate or enhance the effect of any particular disclosure upon a defendant's rights." Appl. Exh. 5, at 8-9. /12/ On the record presented, the court of appeals concluded that "the lower court (had not) abused its discretion in deciding to release the complete affidavit." Appl. Exh. 5, at 11. The court stated that "(t)he balance struck between the public's right of access via the press and the defendant's right to a fair trial must be carefully struck in each case * * *." Ibid. Nonetheless, the court noted that the "common law presumption is in favor of access," and that "'pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial,'" id. at 11-12 (quoting Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 565 (1976)). As the court explained, "(t)he reason that fair trials can coexist with media coverage is because there are ways to minimize prejudice to defendants without withholding information from public view." Appl. Exh. 5, at 12. In this case, the court of appeals determined that "voir dire will protect (applicant's) right to an impartial jury." Appl. Exh. 5, at 12. First, "there is somewhat of a tendency to frequently overestimate the extent of the public's awareness of news." Id. at 12 (citations omitted). Second, "even potential jurors aware of the coverage of the girl's disappearance are not disqualified from sitting so long as they can set aside their impressions and adjudge the case on the basis of the evidence presented at trial." Id. at 13 (citing Irwin v. Dowd, 366 U.S. 717, 722-723 (1961)). The court rejected applicant's assertion that potential jurors "might not be candid during voir dire in a case that was 'under the glare of media attention and focus.'" Appl. Exh. 5, at 13. As the court explained: It is quite simple to have those potential jurors who have heard of the case approach the bench and answer more specific questions in private. Such a course may occasion some inconvenience, but inconvenience is a small price to pay for a system of criminal justice which is at once open to the public and fair to the accused. Ibid. In sum, the court of appeals "agree(d) with the district court that a properly conducted voir dire should guarantee a fair trial for (applicant)." Id. at 15. /13/ Finally, the court of appeals turned to the "public's right of access" to the information at issue. Appl. Exh. 5, at 15. The court determined that the "public has many significant interests in that material." Id. at 16. The court observed that (v)iolent crime has a profound impact upon societal well-being and often provokes public reactions of fear and outrage, as well as compassion for its victims. "When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions." Id. at 16 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509 (1984)). In addition, "(s)ociety has an understandable interest not only in the administration of criminal trials, but also in law enforcement systems and how well they work." Appl. Exh. 5, at 16. The court rejected the argument that "these concerns will be met by releasing the information after (applicant's) trial has concluded, when all danger of prejudice will be past." Appl. Exh. 5, at 16. "Openness is a value in itself that the trial judge must consider even when the participants in the trial may wish otherwise." Id. at 17. The court cautioned that "(t)his is by no means to assert that every sentence of every affidavit in support of a search warrant must always be released, no matter what the circumstances." Ibid. /14/ Rather, the court stated, since "the ready resort to suppression is for societies other than our own(,) * * * an accommodation of competing values remains the commendable course." Ibid. Judge Widener dissented. Appl. Exh. 5, at 16-24. He concluded that the majority had erred in not reviewing the magistrate's decision under the deferential abuse of discretion standard, and that "the evidence in the omitted paragraph is so palpably inadmissible and prejudicial that it is beyond argument that the magistrate's decision to refuse to lift the seal from the one paragraph of the affidavit should not be disturbed." Id. at 17. g. The court of appeals stayed its mandate until 5 p.m., January 4, to permit applicant to seek review before this Court. Appl. Exh. 4, at 1. On January 3, the court of appeals, over Judge Widener's dissent, denied applicant's motion for an extension of the stay pending the filing and disposition of a petition for a writ of certiorari. Appl. Exh. 6, at 1. On January 4, applicant then filed this application for a stay. On that day, the Chief Justice temporarily stayed the mandate of the court of appeals pending receipt of responses to the application on January 7 and further order by him or the Court. 2. The application for a stay should be denied. This case does not present any issue regarding the propriety of placing documents under seal. See, e.g., In re Knight Publishing Co., 743 F.2d 231, 235 (4th Cir. 1984). This case also does not present an issue regarding whether the First Amendment provides the public with a right of access to judicial records. /15/ Nor does the case present the issue regarding whether the public enjoys a comparable common law right of access, because applicant concedes that there is such a right. See, e.g., Appl. 13 ("the common law right of access by the media and dissemination to the public is qualified"); accord Va. C.A. Br. 7; cf. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-599 (1978). /16/ Moreover, this case does not present a broad issue regarding the applicable legal analysis, since applicant does not challenge the legal principle that courts, when faced with a request such as respondent's, must weigh the defendant's constitutional right to a fair trial against the public's asserted common law right. See Appl. 6-7, 10-14; Baltimore Sun Co. v. Goetz, 886 F.2d at 65. /17/ And this case does not involve an issue regarding the public's ability to obtain documents under seal, where publication could compromise ongoing investigations, breach recognized privileges or confidentiality agreements, or otherwise endanger individuals' safety. See note 14, supra; see also 28 C.F.R. 50.9(e) (exceptions to Department of Justice Guidelines on open judicial proceedings). At bottom, the single issue presented is quite narrow, namely, whether the lower courts -- on the record presented -- properly balanced applicant's constitutional right to a fair trial against the public's common law right of access. In our view, there is no reasonable probability that four Members of this Court would vote to grant certiorari in order to resolve that fact-specific issue. Nor is there a reasonable probability that five Members of the Court would vote to overturn the lower courts' conclusion that unsealing the remaining paragraph of the affidavit will not undermine applicant's ability to receive a fair trial in state court, particularly where, as here, the public already has had access to substantial amounts of information regarding applicant's pending criminal case, including the bulk of the search warrant affidavit expressly implicating him in the girl's disappearance. It is therefore respectfully submitted that the application for a stay be denied. KENNETH W. STARR Solicitor General JANUARY 1991 /1/ In the district court, the United States joined applicant and the Commonwealth of Virginia in opposing respondent's motion to the extent it sought unsealing of that paragraph of the affidavit. Nov. 27, 1990, Tr. 5-6. In the court of appeals, the United States, appearing as amicus curiae, took the position that the district court's order should be affirmed unless the Fourth Circuit "determines that the district court's reasons for the unsealing order were not sufficiently specific." U.S.C.A. Br. 17; see id. at 11. /2/ Respondent also maintained that "there is a First Amendment right of access to search warrant affidavits," but acknowledged that "it is unnecessary for (the court) to reach the First Amendment issue, because the common law right of access to these materials is so firmly established in (the Fourth Circuit)." Resp. C.A. Br. Attach. 1, at 2 n.1. /3/ In an affidavit submitted to the court, applicant's counsel explained that the search warrant affidavit at issue "outlines the Government's theory of the case, including identifying specific factual allegations alleged to be incriminating in nature." Appl. C.A. Br. Exh. 1, at 2. Counsel contended that "dissemination of this information to (respondent) and therefore, the entire print, television and radio news media, will without doubt ensure that (applicant) will never be able to obtain a fair trial in Fairfax County." Ibid. /4/ The Commonwealth did not enter an appearance before the court. Its position was submitted by the United States. /5/ At that time, the United States provided respondent with a redacted copy of the affidavit (deleting only that paragraph), even though the document remained under seal. U.S.C.A. Br. 7. Applicant no longer challenges release of those portions of the affidavit. /6/ Before the district court, the United States took the position that "(u)sing the balancing test prescribed by the Fourth Circuit and erring in favor of caution, (it) would ask the (court) not to unseal that portion of the affidavit that relates to that inadmissible evidence contained in that paragraph." Nov. 27, 1990, Tr. 6. /7/ During the hearing, the district court noted that (w)e have had previous experience selecting a jury in a case that involved (the missing girl). The two men who faked the extortion, or they didn't fake the extortion -- they faked knowledge of the whereabouts of the child in order to try to extort money from the child's mother. Judge Cacheris selected that jury in less than a couple of hours. Nov. 27, 1990, Tr. 16. /8/ The United States supported applicant's request for a brief stay, noting that such time would "give the Government an opportunity * * * to consult with the Commonwealth Attorney in Fairfax County (, since) (h)e is really the main party in interest at this point here." Nov. 27, 1990, Tr. 23. /9/ The Commonwealth of Virginia filed a brief amicus curiae supporting applicant. /10/ The court rejected the dissent's view that it should defer to the decision reached by the magistrate, not the district judge. In the majority's view, the "assertion that a reviewing court must ignore the judgment of a district court and defer to the opinion of a magistrate who has no experience with voir dire in felony cases involving pretrial publicity cannot stand as a matter of logic or law." Appl. Exh. 5, at 6 n.2. /11/ The court observed that (a) trial court is in the best position to understand the intricate workings of criminal trial procedures, the varying methods of voir dire, jurors' responses to pretrial publicity, and whether a defendant can be granted a fair trial. Such fundamental aspects of trying a case are grist for the trial court's mill. Appl. Exh. 5, at 8. /12/ The court of appeals rejected applicant's contention, joined by the Commonwealth as amicus curiae, that the district court should not have considered respondent's motion, but instead should have transferred the motion to the Fairfax County Circuit Court. The court pointed out that "(d)espite their protestations, * * * they offer no theory on which a transfer of the question could be predicated." Appl. Exh. 5, at 9. In any event, the court stated that "(w)hile the federal and state judicial districts are not of course identical, the federal court is hardly ignorant of the characteristics of the region from which the jurors will be drawn; the federal district here includes Fairfax and adjacent counties." Ibid. /13/ The court also noted "the availability of additional safeguards of an impartial jury. If voir dire proves inadequate, the defense may move for either a continuance or a change of venue." Appl. Exh. 5, at 15. The court made clear that it was not "plac(ing) primary reliance upon either of those procedures," but merely pointing out that "they do exist as a backstop for those extremely rare instances where twelve unbiased jurors cannot be selected." Ibid. /14/ The court declined to address "the situation where disclosure of an affidavit would compromise an ongoing investigation or endanger the safety of witnesses," because that was not at issue. Appl. Exh. 5, at 17 n.4. /15/ For that reason, this case does present an occasion to resolve the conflict among the courts of appeals over that issue. Compare Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1990) (First Amendment does not provide right of access) with In re Search Warrant for Secretarial Area, 855 F.2d 569, 572-575 (8th Cir. 1988) (First Amendment provides right of access). /16/ In Warner Communications, Inc., the Court acknowledged that (i)t is difficult to distill from the relatively few judicial decisions a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate. 435 U.S. at 598-599. Indeed, in that case, the Court did "not undertake to delineate precisely the contours of the common-law right * * * (because it) assume(d), arguendo, that is applies to the tapes at issue * * *." Id. at 599. /17/ Applicant contends that the decision below "provides a virtually unlimited right of access without regard to, or thought of, the rights of a criminal defendant facing a charge with a possible life sentence." Appl. 7. Even a cursory reading of the court of appeals' opinion belies this assertion.