Seattle Times Co. v. United States District Court for the Western District of Washington

The Seattle Times Company (“Times”) and the Hearst Corporation (“Hearst”) petition for a writ of mandamus to obtain access to four documents filed under seal in pretrial criminal proceedings. Stella Nickell and the United States are real parties in interest in opposition to the writ. We have expedited the disposition of this case. We issued an order February 29, 1988 granting the requested relief to be followed by this statement of our reasons.

I.

FACTS AND PROCEEDINGS BELOW

Stella Nickell was indicted on December 9,1987 on five counts of violating 18 U.S.C. § 1365 , a product tampering statute. The grand jury charged that she implanted potassium cyanide in Excedrin capsules, resulting in the death of her husband and of a woman unknown to her.

In May, 1987, while the case was under investigation, Nickell applied for court-appointed counsel. In support of her application, she filed a financial affidavit describing her income, property, and other financial details. United States Magistrate John L. Weinberg appointed the Federal Public Defender to represent Nickell and ordered the affidavit sealed. A second financial affidavit, dated December 9,1987, was also sealed.

On December…

concurring:

I concur in Judge Wiggins’ excellent opinion for the court. I join without reservation in the discussion regarding the first amendment. However, I believe the discussion of the fifth amendment issue, in particular the second paragraph of that discussion, at 1519, requires further comment.

The Supreme Court has held that, for purposes of the fifth amendment, when an accused is required to provide testimony in order to exercise a constitutional right the testimony has been “compelled”. See Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968); see also United States v. Kahan, 415 U.S. 239 , 94 S.Ct. 1179 , 39 L.Ed.2d 297 (1974) (per curiam). In Simmons , the Court held that when a defendant testifies in support of a motion to suppress evidence on fourth amendment grounds, his testimony is covered by a form of “use immunity”, and may not be used against him at trial on the issue of guilt. Simmons, 390 U.S. at 394 , 88 S.Ct. at 976 ; see United States v. Salvucci, 448 U.S. 83, 93-94 , 100 S.Ct. 2547, 2553-54 , 65 L.Ed.2d 619 (1980). In Kahan , the Court considered, but did not decide, the issue of whether similar “use immunity” extends to…

concurring and dissenting:

There can be little doubt of the validity of the proposition, declared in the opinion, that the First Amendment is not confined to the traditional right of the public and press to attend criminal trials but also extends to permit access to “pretrial release proceedings and documents filed therein.” 1

My brothers, of course, are careful to point out that this extension, too must be tempered in the light of the Sixth Amendment's guaranty of fairness to a person accused of crime.

However, citing numerous cases, they conclude that, in this instance, the district judge unduly emphasized or failed to give sufficient weight to factors material to his conclusion that the records, if published, would probably unfairly prejudice the accused on trial. They are firmly convinced that his ruling constituted “error as a matter of law.”

I am not. In matters of this kind, any determination, involving as it does forecasts of probabilities is largely subjective and should not be disturbed (particularly by those not in a favorable position to know) absent the presence of error clearly apparent. Here there is none. The appraisal now under attack was made by a local and…