Opinion
No. 76-3085.
Argued December 30, 1976. Submitted January 4, 1977.
Decided January 6, 1977. On Petition for Rehearing March 4, 1977.
John B. McCrory, Nixon, Hargrave, Devans Doyle, Rochester, N. Y., for Gannet Co., Inc.
Edward H. Levi, Atty. Gen., Dept. of Justice, Washington, D. C., Richard J. Acara, U.S. Atty. for the Western District of N. Y., Lloyd George Parry, Dept. of Justice Atty., Organized Crime Strike Force, Buffalo, N.Y., Gregory A. Baldwin, Dept. of Justice Atty., Organized Crime Strike Force, Rochester, N.Y., for respondent.
George W. Conaty, Jr., Rochester, N.Y., for Michael W. Roche.
John F. Speranza, Rochester, N.Y., for Daniel L. Bookless.
Newman Newman, Cleveland, Ohio, for Donald R. Dileno; Anthony R. Palermo, Rochester, N.Y., of counsel.
Before MOORE, TIMBERS and OAKES, Circuit Judges.
A petition for a writ of mandamus having been filed,
Upon consideration thereof, it is
Ordered that said petition be and it hereby is denied.
ON PETITION FOR REHEARING [8] ORDER
On petition for rehearing, it coming to the attention of the court that by agreement of the parties and the court the verbal order sealing the records in three pending criminal cases was dissolved, this court's order denying the petition for mandamus is therefore withdrawn and the petition dismissed as moot.
I emphatically dissent from the summary denial, without hearing or response, of the petition for mandamus. On or about December 8, 1976, the district court sealed the files in three pending criminal cases at the request of a Government attorney. It did so by verbal order, without a hearing, findings, or justification of any kind. In an appropriate case with proper findings, after an evidentiary hearing or judicial notice of indisputable facts, it may be proper for a court to seal certain records or papers, the revelation of which might, for example, endanger a witness's safety, see United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274 (2d Cir.), cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975). But only a few months ago the Supreme Court made it clear, in a case involving a pretrial "gag" order (an order that was, in some respects, of less inclusive sweep than the present one), that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights" and that "the protection against prior restraint should have particular force as applied to reporting of criminal proceedings . . .." Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 2803, 49 L.Ed.2d 683 (1976). The public at large has "a vital stake in the concept of a public trial." People v. Hinton, 31 N.Y.2d 71, 73, 334 N.Y.S.2d 885, 887, 286 N.E.2d 265, 266 (1972), cert. denied, 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273 (1973). "[A] secret trial can result in favor to as well as unjust prosecution of a defendant." Lewis v. Peyton, 352 F.2d 791, 792 (4th Cir. 1965). See also In re Oliver, 333 U.S. 257, 270-71, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (Black, J.); United States ex rel. Bennett v. Rundle, 419 F.2d 599, 606 (3d Cir. 1969) (suppression hearing must be public).
These vital considerations require that any order of cloture be made only after examination of less restrictive alternatives, Nebraska Press Association v. Stuart, supra, 427 U.S. 539, 96 S.Ct. at 2804-05, and on the basis of established fact, United States ex rel. Lloyd v. Vincent, supra, 520 F.2d at 1275. The trial judge here did not meet the "heavy burden imposed as a condition to securing a prior restraint," Nebraska Press Association, 427 U.S. at 570, 96 S.Ct. at 2808, and by not requiring him to do so, this court is, in my view, countenancing a very serious First Amendment breach. See In re Washington Post Co., No. 76-1695 (4th Cir. July 19, 1976) (mandamus issued to lift seal of record in United States v. Mandel).