Fourth Circuit Rules Moussaoui Trial Evidence Public
 
June 7, 2006
 

The United States Fourth Circuit Court of Appeals, in the middle of Zacarias Moussaoui’s terrorism trial, ruled that exhibits shown to jurors must contemporaneously be made public. Jurors in Moussaoui’s life-or-death trial for his complicity in the September 11 attack later sentenced him to life.

On March 22, 2006, the Fourth Circuit ordered Eastern District of Virginia Judge Leonie M. Brinkema to contemporaneously release to the media all documentary evidence that had been presented in full to the jury. On February 14, prior to the start of that trial, Brinkema had entered a written order stating that none of the exhibits would be released until the trial had concluded, and in a pretrial conference that same day, she ordered that all transcripts of bench conferences would remain sealed until the conclusion of the trial. Brinkema justified these orders on the grounds of administrative hardship and potential jury taint, in part based on her concern that Moussaoui’s right to a fair trial could be jeopardized if jurors were repeatedly exposed to evidence through media publication.

A coalition of eight news organizations and a nonprofit group petitioned the Fourth Circuit for a writ of mandamus on March 10, the same day that Brinkema denied a motion for access filed by the same organizations in the district court. Mandamus petitions are generally only granted in extreme situations because appellate courts are reluctant to interfere with ongoing proceedings presided over by a district court judge. A district judge’s restrictions on access may be overturned only when the appeals court finds that the district judge abused his or her discretion, which is a highly deferential standard of review.

In the Fourth Circuit, the media and public have a strong First Amendment right to view evidence filed in a criminal proceeding. Under the Fourth Circuit’s rulings, however, access to this evidence is a qualified right, and it may be limited by a compelling interest in preserving a fair trial, provided that the restriction itself is narrowly tailored.

In entering the mandamus order in United States v. Moussaoui, the Fourth Circuit noted that it was “sympathetic” to the “enormous” logistical burden of the contemporaneous release of evidence. The court rejected that justification, however, because “it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance in the courtroom to see and hear the evidence” that “has become known to members of the public through their attendance at a public session of court.” The Fourth Circuit also rejected Brinkema’s reasoning with respect to the potential for jury taint, because the district court “has repeatedly instructed the jurors not to expose themselves to media coverage of the trial.”

But the Fourth Circuit affirmed Brinkema’s order regarding transcripts of bench conferences on the ground that the Supreme Court has indicated that the First Amendment right to observe trial proceedings does not necessarily extend to every part of a trial. In particular, bench conferences are not heard by those in attendance at the trial, and thus any right to this information is not hampered by post-trial, as opposed to contemporaneous, release. The Fourth Circuit similarly affirmed Brinkema’s order withholding from the public evidence admitted but not presented to the jury, and evidence only partially submitted to the jury.

By granting the news organizations’ petition to view the evidence, the Fourth Circuit evinced its belief that the right to contemporaneous access is important enough to justify an extraordinary response. This decision will serve to safeguard the function that the media serves in reporting on criminal proceedings to the public at large.

The Arlington, Virginia-based Reporters Committee for Freedom of the Press served as the media’s repository for the trial evidence released each day. The evidence – some of which is graphic and should be viewed with discretion – is posted at www.rcfp.org/moussaoui/.

For more information, e-mail Christina LaRosa at christina.larosa@hklaw.com or call toll free, 1-888-688-8500.