61 L. Ed. 2d 608 (1979) (Powell, J., concurring).
But, the right of access to the proceedings in court is not absolute. Richmond Newspapers, 448 U.S. at 581 n. 18, 100 S. Ct. at 2830 n.18; Gannett Co., 443 U.S. at 398, 99 S. Ct. at 2915 (Powell, J., concurring). The trial judge may employ his/her discretion to impose reasonable restrictions to preserve the fair administration of justice, including the exclusion of the public and press from conferences at the bench and in chambers. Globe Newspaper Co., 102 S. Ct. at 2622 n. 25; Richmond Newspapers, 448 U.S. at 598 n. 23, 100 S. Ct. at 2839 n. 23 (Brennan, J., concurring).
Most importantly, access to the proceedings is limited by defendant's constitutional right to a fair trial and the government's need to obtain just convictions. Gannett Co., 443 U.S. at 398, 99 S. Ct. at 2915 (Powell, J., concurring).
The Court finds as follows:
1. At the time the transcript was sealed on motion, the Court very briefly set forth the reasons why it concluded that it was necessary to seal the transcript.
2. The portions sealed have been ordered sealed only until after the jury reaches its verdict in the case, and at that time the sealed portions of the transcript shall be automatically unsealed without the necessity for a further order by the court. See Gannett Co., 443 U.S. at 393, 99 S. Ct. at 2912 ("Any denial of access in this case was not absolute but only temporary. Once the danger of prejudice had dissipated, a transcript of the . . . hearing was made available.")
3. The sealed portions of the transcript are not evidence in the case and would not be admissible as evidence in the case since they are not related to any issue presently before the Court. See application of the National Broadcasting Co., 209 U.S.App. D.C. 354, 653 F.2d 609 (1981).
4. The nature of the bench conferences in question were such that they would usually be conducted out of the hearing of the public and press. Conferences of this sort "are distinct from trial proceedings", Richmond Newspapers, 448 U.S. at 598 n. 23, 100 S. Ct. at 2839 n. 23, and, therefore, the public's right to participate in the administration of justice was not infringed to the extent it would be if they are excluded from the trial.
5. Disclosure of the sealed conferences would in all probability have a prejudicial effect on the jurors and witnesses in this case.
6. Although sequestration of the jury is often mentioned as a remedy in such cases, and while as noted above, all jurors have been alerted to that possibility, sequestration would be extremely expensive and time consuming and, at this point in the trial, may well result in prejudice to a party or parties. Moreover, sequestration may result in a delay of the trial while sequestration is being arranged. Sequestration would be expensive, requiring the renting of a portion of a hotel or motel, the transportation of jurors to and from the courthouse, the feeding of jurors, and transporting jurors for necessary errands including such matters as medical appointments, banking, and so forth. Furthermore, sequestration is very disruptive of the juror's life and would impose an unnecessary hardship on the jurors, resulting in possible prejudice to the parties. It would also be difficult to sequester jurors because the area is now in the height of the tourist season and hotel or motel accommodations are at a premium. Finally, while accommodations can be ultimately obtained, there is, as noted above, the effect sequestration of the jury would have at this time.
It is the judgment of the court and of counsel representing both the Government and the defendant, that the limited sealing of the five bench conferences, consisting of less than 20 pages of transcript, out of the over 4,000 pages of transcript that have already been taken, is the least restrictive alternative in this case. The transcript has not been sealed for any longer than is necessary to achieve the purpose for the sealing, that is, to assure the parties of a fair and impartial trial. The transcript will be automatically unsealed when the verdict has been returned by the jury. The limited sealing order by the court has the effect only of delaying the release of the transcript to the public for a period of not more than two or three weeks, keeping in mind that the Goverment rested its case on June 24, 1983, and the defense is to begin its case on June 27, 1983. Weighing the public's right to know the contents of the sealed portion of the proceedings against the possible prejudice to the defendant, or the government, and the administration of justice, the scale overwhelmingly tips towards the Court's decision to seal the transcript of the bench conferences indicated.
In view of the above, it is hereby
ORDERED that the Application of the Washington Post Company to unseal the transcript of the five described bench conferences is denied, and it is further
ORDERED that those five portions of the transcript shall remain sealed until the jury in this case is discharged, and in that event, the transcript shall be unsealed without further order of the Court.