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 experienced district judge; his memorandum decision is concise and cogent; it shows that he accurately and fairly considered all relevant factors before entering his order. 2 On this record, I submit, it is mere speculation to conclude “as a matter of law” that he gave undue weight —or no weight — to any of them. In sum, I am firmly convinced no egregious error is apparent. The writ should not issue.

APPENDIX

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

United States of America, Plaintiff,

v.

Stella Nickell, Defendant.

No. CR87-276WD

MEMORANDUM DECISION AND ORDER ON MOTION TO UNSEAL JUDICIAL RECORDS

The Seattle Times has moved for an order unsealing certain parts of the file that were previously ordered sealed in this criminal case. The Hearst Corporation, publisher of the Seattle Post-Intelligencer, and Tacoma News, Inc., publisher of the News Tribune, have joined in the motion.

Both parties in the case, the government and the defendant Stella Nickell, oppose the motion to unseal.

The movants rely on the first amendment guaranty of freedom of speech and of the *1521 press. The plaintiff and defendant rely on the sixth amendment guaranty of trial by an impartial jury. The motion exemplifies what the Ninth Circuit, in a similar context, has called the “clash” between these constitutional rights. Levine v. District Court, 764 F.2d 590, 591 (9th Cir.1985), reH. denied, 775 F.2d 1054 (1985).

The defendant was indicted on December 9, 1987, on five counts under 18 U.S.C. § 1365 , an anti-product-tampering statute. The grand jury has charged that she implanted potassium cyanide, a lethal poison, in Excedrin capsules. In two of the counts it is alleged that death resulted. One of the alleged victims was the defendant’s husband; the other was a young woman unknown to her. Two of the other counts allege that Excedrin capsules poisoned by the defendant were found on store shelves open to the public. Each of the two counts in which death is alleged carries a maximum penalty, upon conviction, of a fine of not more than $100,000, or imprisonment for any term of years or for life, or both. 18 U.S.C. § 1365 (a)(2). Each of the other three counts carries, upon conviction, a maximum penalty of a fine of not more than $50,000, or imprisonment for not more than ten years, or both. 18 U.S.C. § 1365 (a)(4).

In May, 1987, while the case was under investigation, the defendant applied for court-appointed counsel. In support of her application she signed and filed a financial affidavit describing her income, property, and other financial details. United States Magistrate John L. Weinberg granted the application and entered an order on May 15, 1987, appointing the Federal Public Defender to represent defendant. Magistrate Weinberg determined that the financial affidavit included information potentially prejudicial to defendant and ordered it sealed. A second financial affidavit, dated December 9, 1987, was also sealed.

On December 9,1987, following return of the indictment, United States Magistrate Philip K. Sweigert ordered that a bench warrant be issued and gave notice in his order that the United States Attorney’s office had indicated that it would request a detention hearing. The government and the defendant submitted briefs on the pretrial detention issue. Both parties moved for leave to file their briefs under seal to avoid pretrial publicity damaging to the defendant’s right to trial by an impartial jury. Each party concurred in the other’s motion. In response to these motions, Magistrate Sweigert entered orders on December 9 and December 11, 1987, allowing the two briefs to be filed under seal.

On December 11, 1987, at the time of defendant’s first appearance before the court, a hearing was held before Magistrate Sweigert on plaintiff’s application for a detention order. The hearing was public. Both parties were represented by counsel, who presented oral argument to supplement their briefs.

On December 11, 1987, the magistrate entered a pretrial detention order.

On December 14, 1987, plaintiff and defendant presented a joint motion to the magistrate to withdraw from the file the briefs filed by them under seal in connection with the detention hearing. An agreed order, directing the clerk to withdraw the sealed briefs and return them to the respective parties, was entered by the magistrate on that date.

On December 14, 1987, defendant moved for revocation of the detention order. On December 15, her counsel filed a supplemental memorandum, with attachments, in support of her motion. These materials were placed in the open file.

The court reviewed the record de novo and on December 17, 1987, entered a memorandum decision denying the motion to vacate and ordering that the defendant remain in pretrial detention. The same order directed the clerk of the court to refile, under seal, the briefs that had been withdrawn pursuant to the stipulated order entered by the magistrate on December 14.

The defendant appealed the detention order to the Ninth Circuit. On January 8, 1988, the court of appeals affirmed the order.

The case was initially set for trial commencing February 16,1988. On January 7, *1522 1988, the defendant moved for a continuance to April 18. The government agreed that a continuance was necessary and had no objection to the proposed date. On January 14, an order was entered continuing the trial to April 18, 1988.

The Seattle Times’s motion to unseal was filed on December 18, 1988. The Hearst Corporation joined in the motion on December 24, 1987, and Tacoma News, Inc. did so on January 6,1988. A hearing was held on January 11, 1988, at which counsel for all three newspapers, and counsel for the parties, gave oral argument for and against unsealing. The three movants and both parties have also submitted briefs.

All of the court proceedings in this case have been open to the public. The indictment and all motions, briefs, orders, and other parts of the file are unsealed and open to the public with four exceptions: the two financial affidavits filed by the defendant Stella Nickell in support of her application for court-appointed counsel, and the two briefs initially filed by the parties for and against pretrial detention. The question is whether these four documents, or any of them, should be unsealed in whole or in part.

For the reasons given below, the court has determined that the motion to unseal must be denied at the present stage. It is expected that the documents will be ordered unsealed, without a further motion or other proceedings, when the jury returns its verdict. Until then, they should remain under seal to protect the defendant’s constitutional right to trial by a fair and impartial jury.

The movants publish the three largest daily newspapers in the Western District of Washington. There is no doubt as to their diligence in seeking to protect first amendment rights or as to their standing to bring the present motion.

The first amendment right of the public and the press to have access to criminal trials is well established. Press Enterprise Co. v. Superior Court, [ 478 U.S. 1 ] 106 S.Ct. 2735 , [ 92 L.Ed.2d 1 ] (1986), (Press-Enterprise II); Richmond Newspapers, Inc. v. Commonwealth of Virginia, 448 U.S. 555 [ 100 S.Ct. 2814 , 65 L.Ed.2d 978 ] (1980). Openness is essential because it “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system” Press Enterprise II, 106 S.Ct. at 2741 (quoting Press Enterprise Co. v. Superior Court, 464 U.S. 501, 504 [ 104 S.Ct. 819, 821 , 78 L.Ed.2d 629 ] (1984) (Press Enterprise I)). The right of access extends, with certain qualifications, to pretrial proceedings and court documents in criminal cases. Press-Enterprise II, 106 S.Ct. at 2741 ; CBS, Inc. v. District Court, 765 F.2d 823 , 825 (9th Cir.1985); Application of the Herald Co., 734 F.2d 93, 98 (2d Cir.1984); Associated Press v. District Court, 705 F.2d 1143 , 1145 (9th Cir.1983); United States v. Chagra, 701 F.2d 354, 364 (5th Cir.1983); United States v. Brooklier, 685 F.2d 1162, 1167 (9th Cir.1982).

The right of access is not absolute. For example, the reports of probation officers considered by the courts in setting bail and determining sentences are not made public, although of course the proceedings themselves are open. 18 U.S.C. § 3153 (c)(1); Fed.R.Cr.P. 32(c)(3). Moreover, the sixth amendment guarantees every defendant the right to a fair trial by an impartial jury. The Supreme Court has long recognized that prejudicial pretrial publicity can have the effect of defeating that right. E.g., Irwin v. Dowd, 366 U.S. 717 [ 81 S.Ct. 1639 , 6 L.Ed.2d 751 ] (1961); see also Erickson, “Fair Trial and Free Press: The Practical Dilemma,” 29 Stan.L.Rev. 485, 487-88 (1977). It follows that the “public’s right of access to criminal proceedings is not absolute, and ... must in some circumstances give way to the paramount rights of the accused.” In re Globe Newspaper Co., 729 F.2d 47, 52 (1st Cir.1984). The Supreme Court has placed an affirmative duty on trial courts in this respect:

Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 378 [ 99 S.Ct. 2898, 2904 , 61 L.Ed.2d 608 ] (1979).

In Gannett, the Court upheld the exclusion of the public from a pretrial hearing on a motion to suppress evidence, and temporary denial of access to the hearing transcript, to ensure the defendant’s right to a fair trial. Id. at 394 [ 99 S.Ct. at 2912 ].

Consistent with the Supreme Court’s mandate, the local rules of this district provide (with exceptions not relevant here) that counsel for the prosecution and defense in a criminal case shall not release any pretrial statement concerning the defendant’s past criminal record, the existence or content of any confession or admission, the performance of any tests, any opinion as to the accused’s guilt or innocence, and other matters which if disseminated would be likely to interfere with a fair trial. Local Rule W.D.Wash. CrR 53.

The Ninth Circuit, seeking to protect both first amendment and sixth amendment rights as fully as possible, has adopted a three-part test applicable to requests for the sealing of pretrial documents in a criminal case. In order for public access to be denied, the trial court must make specific findings that there is a substantial probability that:

(1) Irreparable damage to the defendant’s right to a fair trial will result if the documents are not sealed;

(2) alternatives to closure will not adequately protect the defendant’s right to a fair trial; and

(3) closure will effectively protect against the perceived harm.

Associated Press, 705 F.2d at 1146; see also, Brooklier, 685 F.2d at 1167 .

The government argues here that the Associated Press test should not be applied because the briefs submitted on the pretrial detention issue were analogous to other submittals that are traditionally and lawfully confidential, such as the reports of the probation office in regard to fixing bail and sentencing. It points out that the briefs sealed by Magistrate Sweigert at the parties’ request dealt only with the preliminary question of pretrial detention under the Bail Reform Act, that the hearing was open, that the court orders on the subject are open, and that all other proceedings and documents in the case are open and accessible. It argues:

Government’s Response to Motion to Unseal Documents, pp. 3, 8.

In questioning whether the movants have a qualified right of access to the documents in question — i.e., whether the Associated Press test should apply in the first place — the government has raised a constitutional issue which need not be decided in ruling on the present motion. For purposes of the present ruling the court will assume, without deciding, that the sealed documents are within the realm of those to which the media ordinarily have a qualified right of access, and will apply the Associated Press test.

1. Irreparable damage to the defendant’s right to a fair trial. This is the first part of the Associated Press standard. The sealed briefs contain damaging statements describing evidence which will presumably be admissible at trial; alleged facts relating to the crimes charged which will not be admissible at trial; and alleged facts of the defendant’s record and background, some of which will probably not be admissible.

*1524 If the briefs were unsealed, there is no doubt that the more dramatic parts of their contents would be publicized heavily throughout the district. The indictment and arrest, following a long and complex investigation by federal law enforcement officials, have already brought intensive publicity. As the Times correctly states in its brief, “Local newspaper and broadcast media have already given this case widespread coverage_” (Memorandum of Seattle Times, p. 8.) The media have reported that this case is the first prosecution of its kind in the country, and the dramatic nature of the charges is obvious.

Under these circumstances, it is clear that unsealing the briefs in question before trial would create a substantial probability of damage to the defendant’s constitutional right to a fair trial by an impartial jury. The effect would be especially profound among those potential jurors who read newspapers or watch or listen to broadcast news. The damage would be irreparable for the reasons given below.

While nearly all the arguments have addressed the detention briefs, the motion extends as well to the defendant’s two financial affidavits. These would be of far less interest to the public and the press, but they do contain material potentially damaging to the defendant. Moreover, they were signed and filed by her in order to secure her Sixth Amendment right to counsel. Under the circumstances, they too should remain sealed at this stage.

2. Alternatives to closure will not adequately protect the defendant’s right to a fair trial. It should be noted first that the sealing of two briefs and two financial affidavits, while all court proceedings and all other documents are open, is a far more limited measure than those involved in the leading cases where closure was disapproved. Compare, for example, Press Enterprise II, supra, (the trial court excluded the public from a 41-day preliminary hearing conducted to determine whether there was sufficient evidence to charge the accused, sealed the transcript, and persisted in the sealing even after the defendant waived his right to a jury trial); Press Enterprise I, supra, (the trial court closed all but three days of a six-week voir dire proceeding, later refused to release the transcript, and failed to make specific findings justifying closure); and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 [ 102 S.Ct. 2613 , 73 L.Ed.2d 248 ] (1982) (a state statute excluded the public from all trials during the testimony of a sex offense victim under the age of 18). Here, the sealing is limited to four documents in the pretrial file, and is also limited in time. Once the verdict has been returned, it is expected that there will be no further need for sealing and the documents will be placed in the open file.

The potential alternatives to sealing are as follows:

(a) Voir dire. While a searching voir dire examination can be helpful, it cannot guarantee an impartial jury under all circumstances. For example, a juror may in good faith disclaim any knowledge of the case, only to recall later, after the evidence starts to come in, a damaging fact (perhaps inadmissible) that he or she learned through the media. As stated in a recent text: “Even the most careful voir dire cannot assure that the jury finally selected is not in some undiscovered way ‘tainted’ by the publicity which has occurred.” 2 La-Fave and Israel, Criminal Procedure § 22.1 at 751 (1984).

It has been argued that a jury might be empaneled limited to veniremen who have not read or heard the news. Whatever the feasibility of doing that might be, it would not be a satisfactory solution. As stated by the Ninth Circuit in Levine, 764 F.2d at 600 , quoting the district court opinion in the same case:

Similar is the holding in United States v. Simon, 664 F.Supp. 780, 793 (S.D.N.Y.1987):

(b) Peremptory challenges and admonitions to the jury. These measures would not adequately protect the defendant’s right to a fair trial for the reasons set forth in regard to voir dire, above.

(c) Continuance or change of venue. These measures may be appropriate when the harm has already been done. The goal here is to avoid the harm in the first place. A continuance unwanted by the defendant, or a change of venue, would undercut her right to an early trial in this district.

(d) Redaction. This alternative has been discussed by counsel and carefully considered. Releasing edited versions of the documents might be a reasonable solution in some cases, but would serve no purpose here. The sealed briefs are relatively short (the government’s is twelve pages in length and the defendant’s is eleven pages), and the financial affidavits are one page each. To excise the potentially damaging material would leave very little except legal arguments, citations, and background facts which are already public. There would be no substantial benefit to the movants, the parties, or the public in attempting redaction.

(e) Restraint by the media. It has been suggested in oral argument that if the briefs are unsealed the media will act responsibly in trying to avoid the publication of facts or allegations that would be especially damaging to the defendant’s right to an impartial jury. While the three movants would undoubtedly act responsibly, there are difficulties with the argument. First, it would have the press replace the court as the entity responsible for carrying out the Supreme Court’s directive in Gannett, supra. Second, there are numerous other newspapers, and many broadcasting stations, in the district, and no way to assure that the most damaging contents of the briefs would escape the full glare of publicity.

3. Closure will effectively protect against the perceived harm. This element is fully satisfied. Retaining the briefs and affidavits temporarily under seal should prevent the spread of publicity unduly damaging to the defendant’s right to a fair trial.

It does not follow from the foregoing that sealing would be appropriate whenever adverse pretrial publicity is likely. On the facts of this case, however, given the high level of publicity already demonstrated, the unusually serious nature of the charges, and the contents of the sealed documents, the Associated Press test is met.

For the reasons stated, the motion to unseal is denied at the present stage of the case. The motion need not be renewed later and will be treated as continuing. During or before the jury deliberations the court will make a further ruling on the motion. Absent some compelling reason that is not now apparent, the two briefs and the financial affidavits will be unsealed when the verdict is returned.

DATED: January 19, 1988.

SUPPLEMENTAL ORDER RE MOTION TO UNSEAL JUDICIAL RECORDS

The order entered herein on January 19, 1988, provided that the motion of three newspaper publishers to unseal certain pretrial documents would be treated as continuing, and that a subsequent ruling would be made. (Order, p. 1525 supra.) Upon a further review of the authorities the court has determined that redacted copies of the sealed detention briefs should be placed in the open file. That alternative was rejected in the January 19 order on the basis that it would serve no purpose since “[t]o excise the potentially damaging material would leave very little except legal arguments, citations, and background facts which are already public.” (Order, p. 1525 supra.) However, even if the parts that can be unsealed would add little or nothing to what has been said by counsel in open court or in other briefs on file, they should still be disclosed. The first amendment right of *1526 access extends to cumulative materials as well as to others. A temporary denial of access should be no greater than necessary to protect the defendant’s sixth amendment rights. See United States v. Brooklier, 685 F.2d 1162, 1172 (9th Cir.1982).

Accordingly, the court has redacted a set of the sealed briefs to the extent found to be essential to protect the defendant’s right to a fair trial by an impartial jury. Counsel for the government and for the defendant have examined these today and have confirmed that they have no objection to the editing. The clerk is directed to place copies of the redacted briefs in the open file.

The two financial affidavits placed under seal by the magistrate are in a different category. These were provided and signed by the defendant herself in order to obtain free appointed counsel. They have not been disclosed to the prosecution. Especially in view of the government’s allegations as to motive, the contents of these affidavits are such that unsealing of any part of them at this stage would be inconsistent with the protection of defendant’s rights under the fifth amendment.

The order of January 19,1988 remains in full force and effect except insofar as modified above. Today the defendant has filed a motion for a change of venue. A hearing on that motion will be held at 1:30 p.m. on February 22, 1988, unless an earlier hearing date is ordered by agreement before that time. Counsel for the movant publishers are requested to attend the hearing so that consideration can be given at that time to unsealing the remaining parts of the detention briefs if a change of venue is ordered.

Dated: February 8, 1988.

. The support for this modern day development however, should be regarded as weaker than that given for public access to trials. Note the perceptive comment of Brennan, J., concurring, in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 , 598 n. 25, 100 S.Ct. 2814 , 2839 n. 25, 65 L.Ed.2d 973 (1980). "Significantly, closing a trial lacks even the justification for barring the door to pretrial hearings: the necessity of preventing dissemination of suppressible prejudicial evidence to the public before the jury pool has become, in a practical sense, finite and subject to sequestration.”

. Attached hereto is a copy of Judge Dwyer’s memorandum decision.