Joel Levine v. United States District Court for the Central District of California, United States of America, Real Party in Interest

764 F.2d 590 11 Media L. Rep. 2289 Joel LEVINE, et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest. No. 85-7208. United States Court of Appeals, Ninth Circuit. Submitted May 20, 1985. Decided June 24, 1985. As Amended Aug. 19, 1985. Paul L. Hoffman, Joan Howarth, ACLU Foundation of Southern Cal., Douglas E. Mirell, David P. Crochetiere, Los Angeles, Cal., for petitioners. Robert C. Bonner, U.S. Atty., Robert L. Brosio, Russell Hayman, Asst. U.S. Attys., Los Angeles, Cal., for respondent Dist. of Cal., etc. Emergency Petition for Writ of Mandamus to the United States District Court for the Central District of California. Before SNEED, NELSON and BEEZER, Circuit Judges. BEEZER, Circuit Judge: 1 Richard W. Miller and his attorneys, Stanley I. Greenberg and Joel Levine, seek a writ of mandamus compelling the district court to dissolve a restraining order that prohibits the attorneys involved in Miller's trial from communicating with the media regarding the merits of the case. To determine the validity of the order, we must address the clash between the basic and fundamental right to…

Richard W. Miller and his attorneys, Stanley I. Greenberg and Joel Levine, seek a writ of mandamus compelling the district court to dissolve a restraining order that prohibits the attorneys involved in Miller’s trial from communicating with the media regarding the merits of the case. To determine the validity of the order, we must address the clash between the basic and fundamental right to a fair criminal jury trial and the first amendment right of attorneys to engage in free speech.

I

BACKGROUND

On October 2, 1984, Richard W. Miller, a former special agent with the Federal Bureau of Investigation, was arrested and charged with espionage. Miller allegedly passed classified documents to Svetlana Ogorodnikova and Nikolay Ogorodnikov, who were also charged with espionage. An indictment was returned naming all three defendants on October 12. A superseding indictment was returned in November. On January 22, 1985, the district court severed the trial of Miller from the trial of the Ogorodnikovs. The trial of the *592 Ogorodnikovs is currently proceeding, while Miller is still awaiting trial.

The criminal proceedings against Miller have received extensive local and national media…

concurring:

I concur in Judge Beezer’s opinion. I write separately only to express a slightly different approach to gag orders than that of Judge Beezer.

My starting point is that the conduct of lawyers should eliminate the necessity of imposing such orders. Respect for their profession and the integrity of the judicial process should be sufficient to deter the type of conduct that makes gag orders directed at lawyers necessary. Unfortunately, this required level of professional conduct sometimes does not exist. Bar associations appear to be incapable of securing it.

This requires, inter alia, confrontation with the tension between the interests served by the First and Sixth Amendments. Properly imposed gag orders do inhibit the flow of information available to the press even when not specifically directed at the press. On the other hand, it is presumed that such orders do tend to assure an impartial jury.

The difficulties attending the drafting and enforcing of proper gag orders, which in part this case illustrates, tempts one to consider the consequences of severely restricting or even eliminating their use. Juries time and time again surprise us with their ability and…

concurring in part and dissenting in part:

I concur in Parts I, II, III, and IVA of Judge Beezer’s opinion, and agree that the writ of mandamus should be granted. Also, like Judge Sneed, I find much to agree with in the remainder of the opinion. I cannot fully concur, however, because I do not believe that the record reflects an adequate showing of a “clear and present danger or a serious and imminent threat” to the empaneling of an impartial jury in this case. See United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir.1978). Thus, the district court’s order does not meet the first prong of the test articulated in Nebraska Press Ass’n v. Stuart, 427 U.S. 539 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976), which is set forth in Judge Beezer’s opinion. See CBS, Inc. v. United States District Court, 729 F.2d 1174 , 1178-82 (9th Cir.1984). For this reason I cannot on this record subscribe to Judge Beezer’s apparent approval of a revised form of prior restraint order.

As we all recognize, this case involves striking a delicate balance between rights guaranteed by the First and Sixth Amendments. Prior precedents tell us, however, that these rights are not to be weighed equally when a prior…