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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA


JACKSONVILLE DIVISION

UNITED STATES OF AMERICA

vs. CASE NO.: 3:16-cr-93-J-32JRK

CORRINE BROWN
/

FIRST COAST NEWS MOTION TO INTERVENE, TO UNSEAL TRANSCRIPT, AND


TO CLARIFY ORDERS REGARDING CONTACT WITH RELEASED JURORS

Multimedia Holdings Corporation d/b/a WTLV/WJXX First Coast News (FCN)

pursuant to common law, the First Amendment to the United States Constitution, Local Rule 1.09,

and the Courts Orders of April 18, 2017 [Dkt 110] and May 11, 2017 [Dkt. 132], move to

intervene in this action for the limited purpose of requesting the Court to unseal the transcript of

the closed hearing held on May 10, 2017 regarding the juror who was ultimately dismissed and to

clarify the Courts orders of April 18, 2017 and May 11, 2017.

1. On May 10, 2017, the Court held a closed hearing regarding a juror, and then later

dismissed that juror. The transcript of the hearing was sealed.

2. On April 18, 2017, the Court entered its Order and Information Regarding Trial

(For Members of the Press and the Public) [Dkt. 110]. As is usual for any criminal trial, the April

18, 2017 Order reminded the press to abstain from any contact with jurors or potential jurors.

3. On May 11, 2017, the Court entered its Order Prohibiting Contact With Dismissed

Juror [Dkt. 132] which extended the April 18th Order to clarify that the press is to abstain from

contact with the dismissed juror. The May 11th Order will remain in effect until further Order

of the Court.
4. Although no one, including the media, is allowed to contact jurors while the trial is

pending, once the trial is over and the jurors are released, the media can approach the former jurors

to request interviews. However, given the Courts Order of May 11, 2017, FCN would like to

clarify that the prohibitions contained in the Courts Orders of April 18th and May 11th no longer

apply now that the trial is over and the jurors are released.

5. Counsel for FCN contacted counsel for the Defendant, who stated he supports the

instant motions. Counsel for FCN also emailed Tysen Duva of the United States Attorneys Office,

who responded that the government has no opposition to unsealing the transcript, but has no

position on FCNs request for clarification of the Courts Orders regarding approaching released

jurors.

WHEREFORE, First Coast News respectfully requests the Court grant its motion to

intervene for the limited purposes set forth above, unseal the transcript of May 10, 2017 regarding

the dismissed juror, and clarify that the Orders to abstain from contacting any jurors were dissolved

upon the conclusion of the trial, and any other relief the Court may deem just and proper.

MEMORANDUM OF LAW

I. First Coast News Right to Intervene and be Heard.

Newsgathering is protected by the First Amendment. See United States v. Sherman, 581

F.2d 1358, 1361 (9th Cir. 1978) ("The Supreme Court has recognized that newsgathering is an

activity protected by the First Amendment."); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir.

1975) (newsgathering "qualifies for First Amendment protections"); CBS Inc. v. Smith, 681 F.

Supp. 794, 803 (S.D. Fla. 1988) ("[s]imply put, newsgathering is a basic right protected by the

First Amendment").

The first amendments broad shield for freedom of speech and of the
press is not limited to the right to talk and print. The value of these
rights would be circumscribed were those who wish to disseminate
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information denied access to it, for freedom to speak is of little value
if there is nothing to say.

In re The Express-News Corp., 695 F.2d 807, 808 (5th Cir. 1982). Courts have recognized that the

"protected right to publish the news would be of little value in the absence of sources from which

to obtain it." CBS Inc. v. Young, 522 F.2d at 238. The United States Supreme Court has opined

that "[w]ithout some protection for seeking out the news, freedom of the press could be

eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681 (1972).

Accordingly, intervention is proper when members of the news media seek access to

judicial records. See United States v. Ellis, 90 F.3d 447, 449 (11th Cir. 1996); Newman v.

Graddick, 696 F.2d 796, 800 (11th Cir. 1983); CBS, Inc. v. Young, 522 F.2d at 237-238.

II. Open Judicial Records Promote the Basic Fairness of, and Respect for, the Judicial
System.

The sealed transcript is a court record. Now that the trial is over, the necessity for

the sealing has terminated, and the transcript should be unsealed.

Essential to the rule of law is the public performance of the judicial function. The
public resolution of court cases and controversies affords accountability, fosters
public confidence, and provides notice of the legal consequences of behaviors and
choices.

Regan, Robert Timothy, Sealing Court Records and Proceedings: A Pocket Guide, Federal Judicial

Center (2010) at 1 (An on-line copy can be found at

http://www2.fjc.gov/sites/default/files/2012/Sealing_Guide.pdf). Reporting by the media on trials

and cases pending before the courts serves to inform the public on how the judicial system works,

promotes public confidence in the judicial system, and engenders respect for the judicial system.

Open court proceedings also enhance the basic fairness of the judicial process. See Press-

Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 508 (1984); United States

v. Guerrero, 693 F.3d 990, 1000 (9th Cir. 2012). The media's access to judicial records and

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reporting thereon informs the public with respect to judicial proceedings. Nebraska Press Assn

v. Stuart, 427 U.S. 539, 559-60 (1976); Nixon v. Warner Communications, Inc., 435 U.S. 589, 609

(1978).

There is a community therapeutic value of openness of the courts. Press-Enterprise Co.

v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986). Criminal acts, especially certain

violent crimes, provoke public concern, outrage, and hostility. 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. Press-Enterprise II, 478 U.S. at 13, quoting, Press-

Enterprise I, 464 U.S. at 509.

Therefore, open courts and records contribute to the public understanding of the rule of

law and to comprehension of the functioning of the entire [judicial] system. Nebraska Press, 427

U.S. at 587 (Powell, J., concurring). In this regard, the media acts as the surrogate for the public.

Instead of acquiring information about trials by firsthand observation or by word of mouth from

those who attended, people now acquire it chiefly through the print and electronic media.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1980).

Open proceedings also protect litigants rights to fair and impartial adjudications of their

claims. As described by the United States Supreme Court:

Whatever differences may exist about interpretations of the First


Amendment, there is practically universal agreement that a major
purpose of that Amendment was to protect the free discussion of
governmental affairs.
* * *
A responsible press has always been regarded as the handmaiden of
effective judicial administration . . . . Its function in this regard is
documented by an impressive record of service over several
centuries. The press does not simply publish information about
trials but guards against the miscarriage of justice by subjecting the
police, prosecutors, and judicial processes to extensive public
scrutiny and criticism.

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Landmark Commcns, Inc. v. Virginia, 435 U.S. 829, 838-39 (1978).

III. First Coast News has a Common Law and First Amendment Right of Access to
Judicial Records Such as the sealed transcript.

The Media Intervenors have a qualified right of access to court proceedings and records,

deeply rooted in the common law and the First Amendment. Regan, Robert Timothy, Sealing

Court Records and Proceedings: A Pocket Guide, Federal Judicial Center (2010) at 1 (citing,

Nixon, 435 U.S. at 596-97 and Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 580).

The United States Supreme Court has emphasized that what transpires in the courtroom

is public property, Craig v. Harney, 331 U.S. 367, 374 (1947), and that the public has a strong

interest in a full opportunity to know whatever happens in a courtroom. See Press-Enterprise I,

464 U.S. 501; Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond

Newspapers, Inc. v. Commonwealth of Virginia, 448 U.S. 555 (1980).

The United States Supreme Court has held that the common law and the First Amendment

provide a fundamental right to attend all portions of a criminal trial. See Press-Enterprise I, 464

U.S. 501 (1984) (holding that the guarantee of open criminal proceedings applies to jury selection);

Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 579 (holding that the right to attend criminal

trials is implicit in the guarantees of the First Amendment; without the freedom to attend such

trials, which people have exercised for centuries, important aspects of freedom of speech and of

the press could be eviscerated.).

On countless occasions, courts have been asked to entertain orders limiting information

that may be released to the public concerning judicial matters. But before a court enters such an

order, it must conduct an exacting inquiry into the circumstances. Courts must specifically identify

the factors that threaten the administration of justice or constitutional privacy interests and weigh

all reasonable alternatives to mitigate the perceived threats. Only then, after development of a full
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record on these issues (and allowing the media an opportunity to participate), may a court narrowly

fashion a remedy that accommodates the publics interest alongside that of the judicial system. See

Reagan, Robert Timothy, Sealing Court Records and Proceedings: A Pocket Guide, Federal

Judicial Center (2010). A party seeking closure of the judicial record must demonstrate compelling

reasons to justify the closure. United States v. Guerrero, 693 F.3d 990, 1002 (9th Cir. 2012). That

is, that the "closure is essential to preserve higher values and is narrowly tailored to serve that

interest." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986).

Here, the closed hearing concerned a juror in a criminal trial, and under usual circumstances

jury selection and criminal trials are presumptively open. In this case, neither the Prosecution nor

Defense opposes the unsealing of the May 10, 2017 transcript. Additionally, to the extent the

sealing was necessary in order to protect the integrity of the criminal trial proceedings and jury

deliberations, those concerns are alleviated now that the trial is over and the jury has been released.

Courts have recognized that because newsgathering is protected by the First Amendment, an order

that impinges on the "journalistic right to gather news" must be "narrowly tailored to prevent a

substantial threat to the administration of justice." In re Express-News Corp., 695 F.2d 807, 810

(5th Cir. 1982); CBS, Inc. v. Smith, 681 F. Supp. 794, 796 (S.D. Fla. 1988). Unsealing the

transcript now that the trial is completed serves the interest of narrowly tailoring the closure order.

Additionally, the Courts Local Rules provide that materials should not be sealed forever. See

Local Rule 1.09(c).

IV. First Coast News Should Be Able to Contact Former Jurors Just Like It Can Any
Other People

The April 18, 2017 Order [Dkt. 110] reminding the press to abstain from any contact with

jurors or potential jurors does not have a termination date. Similarly, the May 11th Order states

that it will remain in effect until further Order of the Court. However, the usual practice

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recognizes that once the jury is released, there is no general jurisdiction of the Court to enjoin the

press from approaching former jurors. Such prohibitions in orders governing trials are usually

interpreted as dissolving upon the completion of the trial. Indeed, prohibiting journalists from

approaching former jurors who have been released from jury service would violate both the press

right to gather the news as well as the rights of association of the press and the jurors.

Inasmuch as the trial has been completed, there is no compelling need that would outweigh

FCNs associational or newsgathering rights. In that vein, Defendant supports First Coast News

motion to clarify, and the government is not taking a position.

CONCLUSION

For the foregoing reasons, First Coast News requests that this Court enter an appropriate

order granting its motion to intervene for the limited purposes set forth herein, order that the

transcript of the closed hearing held May 10, 2017 regarding the dismissed juror be unsealed,

clarify that now that the trial is over and the jury has been released that the media may contact the

former jurors, and any other relief the Court deems just and proper.

HOLLAND & KNIGHT LLP

/s/ Jennifer A. Mansfield


Timothy J. Conner (FBN 0767580)
Jennifer A. Mansfield (FBN 0186724)
50 N. Laura Street, Suite 3900
Jacksonville, Florida 32202
(904) 353-2000
(904) 358-1872 (fax)
timothy.conner@hklaw.com
jennifer.mansfield@hklaw.com

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CERTIFICATE OF SERVICE

I hereby certify that on May 13, 2017, I emailed a true and correct copy of the foregoing

to the following attorneys of record, and will file the original over the counter when the Clerk of

Courts office opens on Monday, May 15, 2017:

James Wesley Smith , III


CPLS, PA
Suite 445
201 E Pine St
Orlando, FL 32801
407/647-7887
Email: Jsmith@cplspa.com
Attorney for Defendant

Andrew Tysen Duva


US Attorney's Office - FLM
Suite 700
300 N Hogan St
Jacksonville, FL 32202
904/301-6348
Fax: 904/301-6310
Email: Tysen.Duva@usdoj.gov
Prosecutor s/ Jennifer A. Mansfield
Attorney

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