Opinion
No. 72-3275.
April 9, 1973.
Frank M. Coates, Jr., Baton Rouge, La., for defendants-appellants.
E. Barrett Prettyman, Jr., Robert R. Bruce, Lawrence R. Velvel, Columbus School of Law, Washington, D.C., amicus curiae, for The Reporters Committee for Freedom of the Press.
Gerald J. Gallinghouse, U.S. Atty., New Orleans, La., Douglas M. Gonzales, U.S. Atty. (M.D.), Baton Rouge, La., Mary Williams Cazalas, James D. Carriere, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before JONES, GODBOLD and INGRAHAM, Circuit Judges.
A prosecution for murder was pending in a state court of Louisiana. An action was brought in the United States District Court for the Middle District of Louisiana to enjoin the prosecution in the state court. A hearing was held in the Federal court. Statements were made with respect to matters which would probably be the subject of testimony in the state court in the event the state court proceeding was not enjoined. The district court with the intent of preventing prejudice to the holding of a fair trial in the state court ordered that no publicity be given by press or otherwise with respect to the substantive statements. The appellants, newspaper reporters, violated the court's order by writing reports outlining the testimony. They were brought before the district court, a hearing was held, and they were convicted of contempt and fines were imposed. An appeal to this Court was taken and the decision and judgment of this Court was made. The judgment of the district court was vacated and the cause was remanded for further proceedings as directed by this Court's opinion. United States v. Dickinson, 5th Cir. 1972, 465 F.2d 496. On remand the district court made further findings and adhered to and confirmed its finding of willful contempt and adhered to the penalties previously imposed, 349 F. Supp. 227. The newspaper reporters have again taken their appeal to this Court.
We do not have on this appeal any issue of free press-fair trial. The determination which we make is that the prior opinion and decision of this Court established the law of the case from which we do not depart. Orderly judicial procedure requires that there be an adherence to a decision upon an earlier appeal of the same case. William G. Roe Co. v. Armour Co., 5th Cir. 1969, 414 F.2d 862; White v. Murtha, 5th Cir. 1967, 377 F.2d 428; Rachal v. Allen, 5th Cir. 1967, 376 F.2d 999; Lumbermen's Mutual Casualty Co. v. Wright, 5th Cir. 1963, 322 F.2d 759. Although the Court has power to adopt a position different from that of the earlier appeal, we are not persuaded that such action is required in this case. It is to be noted that the appellants did not seek a rehearing or make application for certiorari of the decision on the prior appeal.
The judgment of the district court is affirmed.