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The trial judge in the Martha Stewart obstruction case was wrong to exclude the media from jury selection, the 2nd U.S. Circuit Court of Appeals ruled Wednesday. Overturning Southern District Judge Miriam Goldman Cedarbaum, the 2nd 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, making them less likely to be open and honest in answering questions and thereby 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 court said in ABC Inc. v. United States, 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 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 40 Foley Square was justified because the extraordinary media attention might inhibit juror candor, in part because the media might publish their names. The application for closed voir dire came not from lead lawyers Robert Morvillo for Stewart or Richard Strassberg for Bacanovic, but from Southern District U.S. Attorney David Kelley and prosecutors Karen Seymour and Michael Schachter. The 2nd 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 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.” Cedarbaum’s concern that prospective jurors might prejudge Stewart was also unpersuasive, Katzmann said, because “prospective jurors are likely to have preconceptions about the defendants in almost every criminal case that attracts media attention.” PRECONCEPTIONS The circuit court also gave little credit to the notion that jurors would be unwilling to announce, in the presence of reporters, any preconceptions they had about Stewart and Bacanovic, who are on trial for allegedly covering up Stewart’s sale of 3,928 shares of ImClone Systems Inc. stock after she learned the company’s founder was selling his shares. Stewart is also charged with securities fraud. “We find it difficult to conceive of a potential juror who would be willing to reveal a bias against the defendants in their presence but not in the presence of the reporters,” Katzmann said. “More importantly, the district court did not point to any controversial issue to be probed in voir dire that might have impaired the candor of prospective jurors.” An example of such an issue is possible racial bias by prospective jurors, coupled with intense media coverage, in the case of boxing promoter Don King, where Judge Lawrence McKenna’s decision entering limited closure for voir dire proceedings was upheld by the 2nd Circuit in United States v. King, 140 F. 3d 76 (1998). “The mere fact that the suit has been the subject of intense media coverage is not � sufficient to justify closure,” Katzmann said. “To hold otherwise would render the First Amendment right of access meaningless; the very demand for openness would paradoxically defeat its availability.” In general, the judge added, “openness acts to protect, rather than threaten, the right to a fair trial. Where, as here, the voir dire proceedings do not explore particularly sensitive or controversial issues, knowledge that reporters are present probably discourages fabrication and ensures honesty on the part of the venirepersons.” Finally, Katzmann said, the district court’s ban on media was not narrowly tailored to address her fair trial concerns. Cedarbaum, he said, could have avoided a broad closure simply by concealing the identity of the prospective jurors. Judge Barrington D. Parker Jr. and Southern District Judge Loretta A. Preska, sitting by designation, joined in the opinion. The appeal was brought by 17 media organizations after Judge Cedarbaum declined to make meaningful changes in her order barring the press. First Amendment attorney Floyd Abrams of Cahill Gordon & Reindel called the opinion “a ringing affirmation of the notion that courts are not only presumptively open to the public but that is so even during high-publicity cases absent the most persuasive evidence that they must be closed.” “What struck me most was the court’s insistence that open judicial processes benefit justice, benefit defendants and benefit the public at large,” Abrams said. “We hear so much about the potential, and sometimes real bad side of the press’ presence at trial that it’s refreshing to read a clearly focused opinion that emphasizes the public benefit.” David A. Schulz of Levine Sullivan Koch & Schulz argued the case before the 2nd Circuit for the media. Assistant U.S. Attorney Deborah E. Landis argued the case for the government.

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