Opinion
01 Cr. 02 (DAB)
July 24, 2001
ORDER
On May 30, 2001, the Court scheduled a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), in order to assess the relevance and helpfulness of Salim's expert testimony regarding his mental condition at the time of the crimes. By Order issued June 29, 2001, the Court granted Defendant's request that the Daubert hearing be sealed. The Court is in receipt of a request dated July 9, 2001 from The New York Times that the transcript of the aforementioned hearing held by this Court be released to the extent possible it does not "threaten the defendant's fair trial rights." The Court is also in receipt of the Defendant's and Government's letter submissions, dated July 16, 2001, regarding that request. The substance of The New York Times request is that because "considerable information about Salim's mental state" is already in the public domain, the "prompt release of the entirety or appropriate portions of the transcript of the hearing" is now appropriate. In response, Defense counsel requests that the portions of the transcript which pertain to any testifying expert's opinion of Salim's mental capacity remain sealed, and states that as to the remainder of the transcript: "I do not know what purpose could now be served by unsealing the minutes regarding the bulk of the remainder of the testimony . . . it remains, in the public record very one-sided against him. Nevertheless, I do not know whether adding `fuel to the fire,' through releasing the minutes, would serve any party's purpose." D. Lttr. at 3. The Government's position, stated succinctly, is a somewhat similar one: "Despite its belief that unsealing the minutes is unlikely to prejudice Salim, the Government, in an excess of caution, will not oppose a request by Salim to keep the minutes sealed and will not ask the Court to unseal them." G. Lttr. at 4.
As a threshold matter, it bears mentioning that this Court finds itself in the unique position of addressing the prejudicial impact of information relating to a pending criminal case, where the Rules of Evidence are of course in full force and effect, that has entered into the public domain due to evidence presented in a no-holds barred, Rules of Evidence no-man's land death penalty proceeding of another case (United States v. Khalfan Khamis Mohamed). In that proceeding, the Defendant Mohamed offered evidence intended to mitigate his role and point the finger of culpability to Defendant Salim. Salim was not a party in Mohammed's proceeding. That evidence consisted of two stipulations summarizing the evaluative reports of the Defendant Salim in this case, prepared by the Government's experts. The transcribed testimony arising out of the Daubert hearing currently at issue is that of Defendant's experts. The Government experts did not testify at the Daubert hearing, although their reports are part of the submissions for that hearing. As this Court stated previously in its Order of June 29, 2001, a determination to limit public access to a criminal court proceeding must be made in light of a delicate balancing between the presumption of access and the substantial probability for prejudice to the defendant. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986). That a presumption of public access applies to pre-trial hearings is well-settled under Press-Enterprise Co., but the weight accorded to such a presumption, particularly as to evidentiary hearings conducted in order to make threshold admissibility determinations, is a lesser one. See Gannett Co. v. DePasquale, 443 U.S. 368, 378 ("Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.") (1979); In re Herald Co., 734 F.2d 93, 99 (2d Cir. 1984) ("There is no sound reason for having the existence of a right of access to a hearing on the admissibility of evidence turn on whether the hearing is held during or before the trial, though the degree of protection afforded by that right may be substantially diminished in the pretrial context."); Leonardo, 129 F. Supp.2d at 246 ("Nevertheless, the fact that prejudicial evidence which may be inadmissible on the issue of guilt but admissible [at a pretrial hearing] creates a `strong argument' that the judicial officers should show heightened concern about the threat that the public dissemination of such inadmissible evidence would have on the accused right to a fair trial.") Cf. In re Glove Newspaper, 729 F.2d 47, 52, 57 (1st Cir. 1984) ("[F]air trial interests of the defendants are at their zenith during the bail hearings, since they have not yet had an opportunity to test the material admitted at the hearings.").
In the Mohamad case, Defendant Salim was given an opportunity by Judge Sand to object to the admission of the stipulations.
Notably, the standard enunciated by the Supreme Court in Press-Enterprise is the operative standard where a more limited closure of a pre-trial proceeding, rather than the entire trial, is at issue. See, e.g., United States v. Leonardo, 129 F. Supp.2d 240, 244 (W.D.N.Y. 2001). However, as delineated by the Second Circuit in United States v. Doe, 63 F.3d 121, the more rigorous "overriding interest" standard contained in the Government submission (citing United States v. King, 140 F.3d 76, 81 (2d Cir. 1998))applies where requests more akin to total closure are at issue. 63 F.3d at 129 ("The burden on the movant to show prejudice increases the more extensive the closure sought.").
The Supreme Court has recognized that "special risks of unfairness" are raised by the pre-trial release of evidence which ultimately could be excluded as unreliable at the actual trial:
The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial. After the commencement of the trial itself, inadmissible prejudicial information about a defendant can be kept from a jury by a variety of means. When such information is publicized during a pretrial proceeding, however, it may never be altogether kept from potential jurors. Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to ensure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun.
Gannett, 443 U.S. at 378-79; see also United States v. Graham, Nos. 01-1108, 01-1107, 01-1109, 2001 WL 7926664 at *10 (2d Cir. July 16, 2001) (holding that media be allowed access to pretrial detention materials, but conclusion would be affected if some portion of the evidence was "clearly inflammatory and unlikely to be admitted at trial"). Even assuming arguendo that a heightened concern for the defendant's fair trial interests is triggered by a Daubert hearing's assessment of evidentiary relevance and reliability for the purpose of possible admission at trial, the already difficult forecasting of any prejudice to the Defendant based on potential publicity is further complicated in the instant matter by the information already made public through the death penalty proceeding in Mohamed. See In re Herald Company, 734 F.2d at 101 (remanding where "the record raises a serious question as to whether the information sought to be kept confidential has already been given sufficient public exposure to preclude a closure order on this account.") The alleged statements of Defendant Salim were made the subject of a stipulation in a proceeding where Defendant Mohamed had every vested interest in maximizing the extent of Salim's involvement and minimizing his own. Further, those statements were not subject to cross-examination by the party in interest, that is, Salim, because he was not a party in Mohamed's death penalty case. The defense attorneys for Mohamed were subject to this Court's January 17, 2001 Protective Order which, among other directives, ordered those attorneys to not disseminate or discuss the materials with the media. While this Court is not suggesting that those defense attorneys blatantly handed the stipulated facts over to the press, nevertheless, the unique confluence of parallel proceedings finds the Mohamed Court, during the end phase of that proceeding, permitting the open-court use of statements of a non-party criminal defendant which were under a sister court's protective order. Further, the instant proceeding is merely at its infancy where serious concerns have been raised by the Defense Attorney in this case about the ability to empanel an impartial jury.
Finally, while the testimony of the Defendant's own experts on Salim's description of his actions and mental state at the time of the charged crimes may be consistent in part with the information already in the public domain through the Mohammed case stipulations, the Defendant and Government experts' respective psychological and psychiatric diagnoses and assessments, not surprisingly, differ markedly. Moreover, the hearing testimony reflects far more detail as to the bases for the expert opinions, i.e. the clinical exam results and Salim's interview statements, as well as a discussion of a possible motivation for his alleged actions on November 1, 2001, which create a substantial probability of prejudice beyond that arising from the publication that has already occurred. See, e.g., In re Herald Co., 734 F.2d at 101 ("[if publication had already occurred], closure of the hearing or some limited parts of it might still be warranted if the hearing might reveal details, knowledge of which would create significant risk of harm to the defendant beyond what might arise from dissemination of the basic information."). Accordingly, the transcript of the Daubert hearing shall remain sealed at this stage of the proceedings. Cf. Gannett, 443 U.S. at 393 (upholding closure of suppression hearing in part because "any denial of access in this case was not absolute but only temporary. Once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available."); United States v. Cojab, 996 F.2d 1404, 1409 (2d Cir. 1993) (affirming sealing order where district court explicitly limited duration of order).
SO ORDERED.