At page 1236 Balancing judicial protection and press freedom post-trial18 citing caseswhile a court may broadly proscribe attorney and party contact with former jurors, it does not have the same freedom to restrict press interviews with former jurors
- in the Guardianship of Ruby Peterson, No. 01-15-00567-CV (Tex. App.—Houston [1st Dist.] Dec. 14, 2015).published (gagorderson trialparticipants priorrestraint)
- Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992).published (gag orders on trial participants constitute prior restraint)
- People v. Pena-Rodriguez, 412 P.3d 461 (Colo. Ct. App. 2012).published“courts have routinely shielded jurors from post-trial 'fishing expeditions' carried out by losing attorneys interested in casting doubt on the jury's verdict.”
- State v. Grate (Slip Opinion), 2020-Ohio-5584, 172 N.E.3d 8.published“[T]rial courts have a wide discretion in being able to protect the judicial process from influences that pose a danger to effective justice”
- State v. Neulander, 801 A.2d 255 (N.J. 2002).publishedBut the court could not issue a sweeping restraint forbidding all contact between the press and former jurors without a compelling reason. [ Id. at 1236-37 (citations omitted).] Similarly, in United States v. Harrelson, 713 F. 2d 1114 (198…
- Sioux Falls Argus Leader v. Miller, 2000 S.D. 63, 610 N.W.2d 76.published Bd., 78 F.3d 920 , 926-27 (5th Cir.1996); CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir.1975); Radio & Television News Ass’n, 781 F.2d at 1445; Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir.1986).
- In re Juror Names, 592 N.W.2d 798 (Mich. Ct. App. 1999).published Analyzing the issue, the Tenth Circuit Court of Appeals stated that "while a court may broadly proscribe attorney and party contact with former jurors, it does not have the same freedom to restrict press interviews with former jurors." Id.…
- Contra Costa Newspapers, Inc. v. Superior Court, 61 Cal. App. 4th 862 (Cal. Ct. App. 1998).published(while a court may broadly proscribe attorney and party contact with former jurors, it does not have the same freedom to restrict press interviews with former jurors)
- United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997).publishedJournal Publishing Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir.1986).
- United States v. Ailsworth, 948 F. Supp. 1485 (D. Kan. 1996).publishedRule 123) provides: “Under no circumstances except by order of the court granted upon good cause shown shall any party or any party’s attorney or their agents or employees examine or interview any juror, either orally or in writing, nor sh…
Show 8 more citing cases
- State v. Loftin, 670 A.2d 557 (N.J. Super. Ct. App. Div. 1996).published(recognizing that while courts "may broadly proscribe" contact with former jurors by attorneys and litigants, the press may not be so restricted)
- United States v. Antar, 839 F. Supp. 293 (D.N.J. 1993).published Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir.1-986) (noting that trial courts have a wide discretion in being able to protect the judicial process from influences that pose a danger to effective justice).
- Green Constr. Co., an Iowa Corp., & Cross-Appellee v. The Kansas Power & Light Co., Defendant-Counterclaimant-Appellee & v. Seaboard Sur. Co. & Green Holdings, Inc., Counterclaim-Defendants-Appellees, 1 F.3d 1005 (10th Cir. 1993).publishedJournal Publishing Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir.1986).
- Green Constr. Co. v. Kansas Power & Light Co., 1 F.3d 1005 (10th Cir. 1993).publishedJournal Publishing Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir.1986).
- In re Globe Newspaper Co., United States of Am. v. Edmund M. Hurley, Appeal of Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990).published(district court’s order prohibiting press interviews with jurors after controversial civil trial, without a compelling reason, was unconstitutionally overbroad)
- Connecticut Magazine v. Moraghan, 676 F. Supp. 38 (D. Conn. 1987).published Journal Publishing Co. v. Meachum, 801 F.2d 1233, 1235 (10th Cir.1986); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir.1975); Simon, 664 F.Supp. at 786-88 .
- United States v. Thomas P. Dempsey, 830 F.2d 1084 (10th Cir. 1987).publishedJournal Publishing Co. v. Mechem, 801 F.2d 1233, 1236-37 (10th Cir.1986).
- United States v. Doherty, 675 F. Supp. 719 (D. Mass. 1987).published(sweeping “all encompassing restraints” forbidden where no time or scope limitations imposed)
At page 1235 Balancing prior restraint with first amendment rights7 citing cases“that impediment is within the zone of interest sought to be protected by the first amendment”
- In re Houston Chronicle Publ'g Co., 64 S.W.3d 103 (Tex. App.—Houston [14th Dist.] 2001).publishedSee also, Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3rd Cir.1994); Davis v. East Baton Rouge Parish School Board, 78 F.3d 920, 926-27 (5th Cir.1996); Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir.1986); CBS Inc.…
- Sioux Falls Argus Leader v. Miller, 2000 S.D. 63, 610 N.W.2d 76.published Bd., 78 F.3d 920 , 926-27 (5th Cir.1996); CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir.1975); Radio & Television News Ass’n, 781 F.2d at 1445; Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir.1986).
- Koch v. Koch Indus., Inc., 6 F. Supp. 2d 1185 (D. Kan. 1998).published“that impediment is within the zone of interest sought to be protected by the first amendment”
- Davis v. East Baton Rouge Par. Sch. Bd., 78 F.3d 920 (5th Cir. 1996).publishedSee, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir.1994); In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir.), cert. denied, 488 U.S. 946 , 109 S.Ct. 377 , 102 L.Ed.2d 365 (1988); Journal Publishing Co. v. M…
- Clifford Eugene Davis, Jr. United States of Am. v. East Baton Rouge Par. Sch. Bd., a Corp. v. Capital City Press Bill Pack Louisiana Television Broad. Corp., Doing Bus. as Wbrz-Tv, Intervenors-Appellants, 78 F.3d 920 (5th Cir. 1996).publishedSee, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir.1994); In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir.), cert. denied, 488 U.S. 946 , 109 S.Ct. 377 , 102 L.Ed.2d 365 (1988); Journal Publishing Co. v. M…
- Kelly J. Deherrera v. City & Cnty. of Denver, Acting By, & Through Its Bd. of Water Commissioners W. Thomas Richards, Individually & in His Off. Capacity as Superintendent of Maint. of the Denver Water Dep't Charles Chapman, Individually & in His Off. Capacity as Transp. Foreman of the Denver Water Dep't, David L. Smith, Attorney-Appellant. Kelly J. Deherrera v. Lewis T. Babcock, Dist. Judge, 7 F.3d 1044 (10th Cir. 1993).publishedJournal Publishing, 801 F.2d at 1235. 17 The appeal is DISMISSED and the petition for writ of mandamus is DENIED.
- Connecticut Magazine v. Moraghan, 676 F. Supp. 38 (D. Conn. 1987).published Journal Publishing Co. v. Meachum, 801 F.2d 1233, 1235 (10th Cir.1986); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir.1975); Simon, 664 F.Supp. at 786-88 .
news organization had Article III standing to seek mandamus review of order barring press access, although, as nonparty, it could not challenge order by appeal
- United States v. Timothy James McVeigh Terry Lynn Nichols, Nat'l Victims Ctr. Mothers Against Drunk Driving the Nat'l Victims' Constitutional Amendment Network Just. for Surviving Victims, Inc. Concerns of Police Survivors, Inc. Citizens for Law & Order, Inc. Crim. Just. Legal Found., Amici Curiae. United States of Am. v. Timothy James McVeigh Terry Lynn Nichols, Marsha Kight H. Tom Kight Jean Bell Eva Maureen Bloomer Marvin Buckner Martin Cash Margie Cash Jannie M. Coverdale Christopher C. Gregan Saundra K. Cregan Dawn Dearmon Jody Dearmon Dorris Delman Ernest Delman Leslie Downey Mike Downey Cecil Elliott Sonia Diane Leonard Cathy McCaskell C. Neil McCaskell Amy L. Petty Roy Sells Terri Shaw Patricia Smiley Enetrice Smiley Tina Tomlin Richard Tomlin Kim Tomlin Judy Walker Nat'l Org. for Victim Assistance Julie Ann Adams Janet K. Beck Mary Suzanne Britten John Henry Carlile Gloria Chipman Sandra Kay Cole John Cole Sherri A. Coleman Teresa C. Cook Cathy Jean Coulter Keith T. Coverdale Laquita Cowan Herbert Randy Creager Rita Crews Virginia Dillon Ella Gail Driskill Ylita R. Edd Cody Farmer Virginia Fredman John J. Gale Helena Annette Garrett Jane C. Graham Tamara Greiner Janet C. Gwynn Patricia Patti Hall Ladonna J. Harris Gina Hernandez Perla Buhay Howard Cheyre Rogene Hughes Germaine A. Johnston Doris Jones Verlyn Z. Lawton Frances Leonard Calvin Moser Virginia G. Moser Barbara Ann Murchison Marioin A. Ragland Rita H. Rains Beverly Ann Rankin Dora Reyes Michael Reyes Florence Rogers Guy Gerard Rubsamen Michael J. Schuman Glenn Seidl Edye Smith Philip Thompson Shelly Renee Thompson Gloria Titsworth William Titsworth Jacque Lea Walker Janet Ehrlich Walker Donna Weaver Wanda R. Webster Suzanne Welch E.E. "Bud" Welch Richard Williams, Movants-Appellants. Nat'l Victims Ctr. Mothers Against Drunk Driving the Nat'l Victims' Constitutional Amendment Network Just. for Surviving Victims, Inc. Concerns of Police Survivors, Inc. Citizens for Law & Order, Inc. Crim. Just. Legal Found., Amici Curiae. Marsha Kight H. Tom Kight Jean Bell Eva Maureen Bloomer Marvin Buckner Martin Cash Margie Cash Jannie M. Coverdale Christopher C. Cregan Saundra K. Cregan Jody Dearmon Dorris Delman Ernest Delman Leslie Downey Mike Downey Cecil Elliot Sonia Diane Leonard Cathy McCaskell C. Neil McCaskell Amy L. Petty Roy Sells Terri Shaw Patricia Smiley Enetrice Smiley Richard Tomlin Kim Tomlin Nat'l Org. for Victim Assistance Julie Ann Adams Janet K. Beck Mary Suzanne Britten John Henry Carlile Gloria Chipman Sandra Kay Cole John Cole Sherri A. Coleman Teresa C. Cook Cathy Jean Coulter Keith T. Coverdale Laquita Cowan Herbert Randy Creager Rita Crews Virginia Dillon Ella Gail Driskill Ylita R. Edd Cody Farmer Virginia Fredman John J. Gale Helena Annette Garrett Jane C. Graham Tamara Greiner Janet C. Gwynn Patricia "Patti" Hall Ladonna J. Harris Gina Hernandez Perla Buhay Howard Cheyre Rogene Hughes Germaine A. Johnston Doris Jones Verlyn Z. Lawton Frances Leonard Calvin Moser Virginia G. Moser Barbara Ann Murchison Marion A. Ragland Rita H. Rains Beverly Ann Rankin Dora Reyes Michael Reyes Florence Rogers Guy Gerard Rubsamen Michael J. Schuman Glenn Seidl Edye Smith Phillip Thompson Shelly Renee Thompson Gloria Titsworth William Titsworth Jacque Lea Walker Janet Ehrlich Walker Donna Weaver Dawn Leinen Dearmon Donna Hawthorne Wanda R. Webster Suzanne Welch Paul Howell Sharon Littlejohn E.E. "Bud" Welch Richard Williams Steve Smith Amber Tina Tomlin Judy Walker v. Honorable Richard P. Matsch, Dist. Judge, United States of Am. Timothy James McVeigh Terry Lynn Nichols Real Parties in Interest, Nat'l Victims Ctr. Mothers Against Drunk Driving the Nat'l Victims' Constitutional Amendment Network Just. for Surviving Victims, Inc. Concerns of Police Survivors, Inc. Citizens for Law & Order, Inc. Crim. Just. Legal Found., Amici Curiae, 106 F.3d 325 (10th Cir. 1997).published(news organization had Article III standing to seek mandamus review of order barring press access, although, as nonparty, it could not challenge order by appeal)
- United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997).published(news organization had Article III standing to seek mandamus review of order barring press access, although, as nonparty, it could not challenge order by appeal)
Other citing cases
- United States v. Mix, 25 F. Supp. 3d 914 (E.D. La. 2014).published
- State v. Finch, 975 P.2d 967 (Wash. 1999).published
- In re the State of Texas ex rel. Abelino Reyna, Relator v. Court of Appeals for the Tenth Dist., No. WR-83,719-01 (Tex. Crim. App. Sept. 16, 2015).published
v.
The Honorable E.L. MECHEM, United States District Court for the District of New Mexico
Journal Publishing Company has petitioned this court for a writ of mandamus directing Judge E.L. Mechem to dissolve his post-trial order prohibiting press interviews with certain jurors. Those jurors served in a controversial trial in which Van Bering Robinson charged that his civil rights were violated by the City of Albuquerque, its chief of police, and several police officers. The jury found for Mr. Robinson and against all defendants except the city of Albuquerque.
At the close of the case, Judge Mechem admonished the jurors not to discuss their verdict. He stated:
You should not discuss your verdict after you leave here with anyone. If anyone tries to talk to you about it, or wants to ■ talk to you about it, let me know. If they wish [to] take the matter up with me, why, they may do so, but otherwise, don’t discuss it with anyone.
Petitioner’s exhibit 1, at 3 (partial transcript of proceedings).
Because of the newsworthy nature of the trial, Journal Publishing Company wanted to interview the jurors in the case. Journal Publishing wrote Judge Mechem informally and requested that he rescind or modify his order prohibiting communication with former jurors. In a written response, Judge Mechem refused the request, explaining that he admonishes the jury to remain silent only in civil actions. After receiving this response, Journal Publishing filed a motion for leave to interview the jurors. Judge Mechem has not ruled on this motion.
Consequently, Journal Publishing petitioned this court for a writ of mandamus against Judge Mechem. In support of this motion, Journal Publishing argues that his order denies its first amendment right to gather news, denies the public the opportunity to know the basis of the jury’s verdict, and violates the jurors’ first amendment rights.
Before considering the merits of the petition, we hold that Journal Publishing has standing to bring this action. Journal Publishing alleged an injury in fact because the court’s order impeded its ability to gather news, and that impediment is within the zone of interest sought to be protected by the first amendment. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970); Concerned, Citizens for Separation of Church and State v. Denver, 628 F.2d 1289, 1295 (10th Cir.1980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981); United States v. Sherman, 581 F.2d 1358, 1360 (9th Cir.1978).
This court has jurisdiction to issue a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651(a) (1982). Since it is a drastic remedy, mandamus is only to be invoked in extraordinary situations. Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976); Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1324 (10th Cir.1978). Thus, we will not issue a writ unless the petitioner has no other adequate means to attain the relief he seeks, and unless his right to the issuance is “clear and indisputable.” Kerr, 426 U.S. at 403, 96 S.Ct. at 2124. Moreover, we will not issue mandamus against a district court unless it has clearly abused its discretion. Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 146-47 (10th Cir.1967). However, a writ is appropriate when the district court’s order is an oft-repeated error or when the order raises new and important problems and issues of law of the first impression. Radio and Television News Association v. United States District Court, 781 F.2d 1443, 1444-45 (9th Cir.1986) (citing Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977)).
[*1236] We first conclude that it is proper for Journal Publishing to seek mandamus. Because Journal Publishing was not a party and could not challenge the post-trial order on direct appeal, it has no other adequate means to obtain relief.
We next consider whether the trial court clearly abused its discretion when it issued the order effectively prohibiting Journal Publishing from interviewing jurors after the trial was over. We note that trial courts have a wide discretion in being able to protect the judicial process from influences that pose a danger to effective justice. Even though the threat to justice caused by news media contact with jurors is much lower after trial than it is during trial, see Sherman, 581 F.2d at 1361, the courts have properly exercised their right to protect jurors from unwanted post-trial harassment. See United States v. Harrelson, 713 F.2d 1114, 1117-18 (5th Cir.1983), cert. denied, 465 U.S. 1041, 104 S.Ct. 1318, 79 L.Ed.2d 714 (1984). For example, courts have routinely shielded jurors from post-trial “fishing expeditions” carried out by losing attorneys interested in casting doubt on the jury’s verdict. United States v. Hall, 424 F.Supp. 508, 538-39 (W.D.Okla.1975), aff'd, 536 F.2d 313 (10th Cir.1976); Wilkerson v. Amco Corp., 703 F.2d 184, 185 (5th Cir.1983). We have upheld the denial of a motion by a losing attorney to interview jurors because that attorney’s assertion of jury misconduct was unsubstantiated. United States v. Wilburn, 549 F.2d 734, 739 (10th Cir.1977).
As we consider the precedent from juror-interview cases, we distinguish cases discussing contact with jurors by news media from cases dealing with contact by parties or the attorneys that took part in the trial. See In re Express News Corp., 695 F.2d 807, 810 n. 3 (5th Cir.1982). The media has less incentive to upset a verdict than does a losing party or attorney. Thus, while a court may broadly proscribe attorney and party contact with former jurors, it does not have the same freedom to restrict press interviews with former jurors.
News gathering is an activity protected by the First Amendment. Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656-57, 33 L.Ed.2d 626 (1972). Even though the first amendment does not invalidate every burdening of the press, id. at 682, 92 S.Ct. at 2657, or provide an unrestrained right to gather information, Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965), any inhibitions against news coverage of a trial carry a heavy presumption of an unconstitutional prior restraint. Sherman, 581 F.2d at 1361. If a court order burdens constitutional rights and the action proscribed by the order presents no clear and imminent danger to the administration of justice, the order is constitutionally impermissible. See CBS, Inc. v. Young, 522 F.2d 234, 240 (6th Cir.1975). A court may impose a prior restraint on the gathering of news about one of its trials only if the restraint is necessitated by a compelling governmental interest. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 2619-20, 73 L.Ed.2d 248 (1982) (dealing with criminal trials); Haeberle v. Texas International Airlines, 739 F.2d 1019, 1021 (5th Cir.1984); Express-News, 695 F.2d at 810; Sherman, 581 F.2d at 1361. Moreover, the court must narrowly tailor any prior restraint and must consider any reasonable alternatives to that restraint which have a lesser impact on first amendment rights. Globe Newspaper Co., 457 U.S. at 607, 102 S.Ct. at 2620; Levine v. United States District Court, 764 F.2d 590, 595 (9th Cir.1985); Express-News, 695 F.2d at 810; Sherman, 581 F.2d at 1361. These requirements apply for criminal trials as well as civil trials. Of course, the weight to be assigned the factors may vary just as the interests of the opposing sides may vary in the context of particular cases.
Judge Mechem’s order restricting press contact with former jurors was impermissibly overbroad. It contained no time or scope limitations and encompassed every possible juror interview situation. It would have been constitutionally permissi[*1237]ble for the court routinely to instruct jurors that they may refuse interviews and seek the aid of the court if interviewers persist after they express a reluctance to speak. Harrelson, 713 F.2d at 1117-18. It could have told the jurors not to discuss the specific votes and opinions of noninter-viewed jurors in order to encourage free deliberation in the jury room. Id. at 1118. But the court could not issue a sweeping restraint forbidding all contact between the press and former jurors without a compelling reason.
We have made no attempt to indicate all restraints which the court may or may not impose. We indicate only that the court’s power to impose prior restraints on first amendment rights is limited and that with few exceptions it must be exercised in response to specific compelling reasons. Because Judge Mechem’s order was imper-missibly overbroad, Journal Publishing has a clear and indisputable right to an order of mandamus reversing the decree. Mandamus is particularly appropriate here because of the potential for the trial court to repeat its overbroad restriction of press contact with former jurors. Therefore, we order Judge Mechem to dissolve his order prohibiting all press contact with the jurors who rendered a verdict in Robinson v. Ma-ruffi, United States District Court for the District of New Mexico, Case No. 84-1216-M Civil. Our order is without prejudice to the entry of a substitute order which conforms to the standards and limitations set out herein.