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New York�The trial judge in the Martha Stewart case was wrong to exclude the media from jury selection, the 2d U.S. Circuit Court of Appeals has ruled. Overturning Judge Miriam Goldman Cedarbaum of New York’s southern district, the 2d Circuit said her decision to bar the media from voir dire violated the First Amendment right of access. That right, the court said, easily outweighed the judge’s concern that the presence of reporters might scare prospective jurors and make them less likely to be open and honest in answering questions, depriving Stewart of her right to a fair trial. “Our national experience instructs us that except in rare circumstances openness preserves, indeed, is essential to, the realization of that right and to public confidence in the administration of justice,” the 2d Circuit said. ABC Inc. v. United States, No. 04-0220-cr. The opinion, by Judge Robert Katzmann, also dismissed the argument of prosecutors who claimed the decision to bar reporters merely deprived the press of the contemporaneity and the “color and texture” of the proceedings. “But one cannot transcribe an anguished look or a nervous tic,” Katzmann said in the appeals court’s 27-page ruling. “The ability to hear a proceeding as it unfolds is a vital component of the First Amendment right of access-not, as the government describes, an incremental benefit.” Katzmann acknowledged that with the obstruction of justice trial of Stewart and her broker, Peter Bacanovic, well under way, its decision had no immediate practical force. Nonetheless, he said, the court was deciding the issue “because the underlying dispute regarding First Amendment right of access is capable of repetition.” Cedarbaum had claimed her decision to conduct voir dire in the robing room at the federal courthouse in New York was justified because the extraordinary media attention might inhibit juror candor, in part because the media might publish jurors’ names. The application for closed voir dire came not from lead lawyers Robert Morvillo for Stewart or Richard Strassberg for Bacanovic, but from David N. Kelley, the U.S. attorney for the Southern District of New York, and prosecutors Karen Seymour and Michael Schachter. The 2d Circuit took aim at Cedarbaum’s findings in granting the government’s application, saying they were insufficient “to establish a substantial probability that open voir dire proceedings would have prejudiced the defendants’ right to an impartial jury.” Katzmann said that there was nothing to suggest that the media had “at any point violated an order of the district court or otherwise conducted themselves improperly in covering the case.”

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