MADELINE HUGHES HAIKALA, District Judge.
Having resolved the renewed motion for judgment of acquittal, the Court turns to the unpublished proceedings in this case.
It is well-settled that the activities of the courts, particularly trials, "are matters of utmost public concern." Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978). Both the First and the Sixth Amendments protect the right to a public trial. Presley v. Georgia, 558 U.S. 209, 211-12 (2010) (discussing the Sixth Amendment right of a criminal defendant to an open trial and the First Amendment right of the general public to attend trials). In addition, the "common-law right of access to judicial proceedings, an essential component of our system of justice, is instrumental in securing the integrity of the process." Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001).
"Beyond establishing a general presumption that criminal and civil actions should be conducted publicly, the common-law right of access includes the right to inspect and copy public records and documents." Chi. Tribune Co., 263 F.3d at 1311. But that common-law right "`to inspect and copy judicial records is not absolute.'" Perez-Guerrero v. U.S. Atty. Gen., 717 F.3d 1224, 1235 (11th Cir. 2013) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)).
Similarly, "[t]he press and public enjoy a qualified First Amendment right of access to criminal trial proceedings." United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028 (11th Cir. 2005). A court has "discretion to determine which portions of the record should be placed under seal." Perez-Guerrero, 717 F.3d at 1235. A court's discretion "is guided by the presumption of public access to judicial documents," and that discretion must "be exercised in light of the relevant facts and circumstances of the particular case." Id. (internal quotation marks omitted) (quoting Nixon, 435 U.S. at 599).
"When sealing proceedings or documents, a court must articulate the overriding interest `along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.'" Ochoa-Vasquez, 428 F.3d at 1030 (quoting Press-Enterprise Co. v. Superior Court of Ca., Riverside Cnty., 464 U.S. 501, 510 (1984)). "[T]hese findings `should include the reason for the closure, the evidence that supports the need for the closure, the number of persons excluded and the number allowed to remain, and the presence or absence of the press.'" Id. at 1030 n.16 (quoting Douglas v. Wainwright, 714 F.2d 1532, 1546 n.16 (11th Cir. 1983)).
One week into the first trial in this case, the Court received a report that two senior officers in the MPD who were subpoenaed for trial, Chief Larry Muncey and Captain Terrell Cook, may have violated the Court's witness sequestration order. In addition, Chief Muncey, Captain Cook, and Sergeant Lamar Anderson were alleged to have engaged in conduct designed to intimidate subordinate officers who testified during the first week of trial. The first episode in the series of events that culminated in these allegations occurred on the first day of trial.
The trial began on September 1, 2015. Before the Government called its first witness, the parties invoked "the rule." (Doc. 117, pp. 3-4). "The rule" is a sequestration order that parties in civil and criminal trials routinely invoke. The sequestration rule prohibits one witness from hearing the testimony of other witnesses during trial. Rule 615 of the Federal Rules of Evidence provides the legal framework for "the rule." Under Rule 615, "[a]t a party's request, the court must order witnesses excluded [from the courtroom] so that they cannot hear other witnesses' testimony. Or the court may do so on its own." Fed. R. Evid. 615.
Rule 615 describes certain types of witnesses who the Court must except from the sequestration rule. The rule states that it "does not authorize excluding ... a person whose presence a party shows to be essential to presenting the party's claim or defense." Fed. R. Evid. 615. An expert witness generally falls within the category of witnesses whose presence is essential to presenting a party's claim. Fed. R. Evid. 615 advisory committee's notes to 1972 amendment ("The category contemplates such persons as . . . an expert needed to advise counsel in the management of the litigation.").
The Government designated Chief Muncey and Captain John Stringer as expert witnesses for the first trial. (Docs. 35, 41).
On September 3, 2015, toward the end of the Government's presentation of evidence, counsel for Mr. Parker asked the Court to exclude Chief Muncey from the courtroom. Mr. Parker's attorney stated that counsel for the Government had indicated that the Government would not call Chief Muncey as a witness. Mr. Parker's attorney argued that Chief Muncey was "under defense subpoena and the rule has been invoked. We would ask that he be sequestered." (Doc. 66, p. 34). Counsel for the Government replied that while the Government did not plan to call Chief Muncey during its case-in-chief, the Government "anticipated possibly" calling Chief Muncey as a rebuttal expert later in the trial. The Court advised counsel for the Government that if the Government decided not to call Chief Muncey in the Government's case-in-chief, then Chief Muncey would have to comply with the sequestration order and leave the courtroom. (Doc. 66, pp. 34-35). Counsel for the Government chose not to call Chief Muncey, so they instructed him to leave the courtroom.
Later that morning, the Government rested its case, and Officer Parker began presenting evidence. Between September 3 and September 4, 2015, Officer Parker called ten MPD officers to testify. (Doc. 66, p. 3; Doc. 67, p. 3).
On the morning of Saturday, September 5, 2015, counsel for Officer Parker contacted the courtroom deputy to report that he had received information that he believed indicated that senior officers in the MPD may have engaged in conduct that intimidated trial witnesses for the defense. The Court scheduled a telephone conference with all trial counsel to discuss the reported conduct. During the telephone conference, Mr. Tuten, Mr. Parker's lawyer, explained that one of the MPD officers who testified at trial on September 3, 2015, Sergeant Wesley Grigsby, called him to report that when he returned to the MPD after testifying, Chief Muncey confronted him about his testimony. (Doc. 72-2, pp. 4-5). Mr. Tuten stated:
(Doc. 72-2, p. 5). After summarizing Chief Muncey's alleged conversation with Sergeant Grigsby, Mr. Tuten asserted that Sergeant Grigsby described the conversation as "harsh and intimidating," and Sergeant Grigsby purportedly told Mr. Tuten that "he felt that he was being chastised, that he was fearful that he would lose his job and his position as a sergeant." (Doc. 72-2, p. 5).
In addition, Mr. Tuten read what he described as an email that Chief Muncey sent that purportedly stated:
(Doc. 72-2, p. 7). Mr. Tuten alleged that the officers who he called to testify received this email message from Chief Muncey. (Doc. 72-2, pp. 6-7).
Based on these allegations, Mr. Tuten argued that Chief Muncey's purported conduct violated the Court's sequestration order and that Chief Muncey's purported conduct was impacting Mr. Parker's ability to obtain testimony from MPD officers. Mr. Tuten stated:
(Doc. 72-2, pp. 7-8).
After hearing more about the allegations concerning Chief Muncey and related allegations pertaining to Captain Cook and Sergeant Anderson and consulting with counsel, the Court decided that before the trial could proceed, the Court and the parties would have to investigate the allegations to determine whether there was evidence to support them and, if so, whether the alleged retaliatory conduct had affected any witness's trial testimony. If it had, the Court would have to consider the possibility of declaring a mistrial. (Doc. 72-2, pp. 10-11, 13-14, 37).
The Court and counsel for the parties spent the rest of the weekend conferring and making arrangements for a hearing on September 8, 2015.
(Doc. 72-2, p. 32).
On September 8, 2015, the Court opened the hearing by gathering input from counsel for the parties about whether the hearing should be closed. Counsel for the Government stated that the Government would not take a position regarding closure of the September 8, 2015 proceeding (Doc. 77-2, p. 20); however, analogizing the investigatory hearing to a grand jury proceeding, the Government asked that the Court exclude from the courtroom anyone other than a testifying witness and his or her counsel. Government counsel argued:
(Doc. 77-2, p. 23). Counsel for Mr. Parker did not object.
Accordingly, the Court decided to close the investigative hearing. A number of factors influenced the Court's decision. First, the Court closed the proceeding to protect the parties' interests in, and Mr. Parker's constitutional right to, a fair trial. To determine whether evidence indicated that Chief Muncey, Captain Cook, or Sergeant Anderson pressured any witness to change his testimony, the Court had to examine the very witnesses who allegedly were targets of the senior officers' purported pressure tactics. In addition, Chief Muncey and Captain Cook allegedly were keeping track of officers' testimony by reading media blogs of the testimony. To provide an environment in which subordinate officers could speak freely about the conduct of senior officers, the Court had to ensure that those senior officers had no access to the information collected during the hearing. The Court explained its effort to balance the interests of the press (and, by extension, the public) with the necessity for ensuring a fair trial as follows:
(Doc. 77-2, pp. 19-20).
Beyond having to provide a safe arena for officers to discuss events that allegedly took place at the police department, the Court recognized that the evidence in the evidentiary proceeding potentially could create confusion about or distraction from the trial evidence relating to the charge against Officer Parker. The Court also recognized that if the evidence substantiated the allegations against Chief Muncey, concern about Mr. Patel's civil lawsuit for damages against Officer Parker and the City of Madison may have motivated Chief Muncey's conduct. The Court sought to avoid confusion between the issues in the civil suit and the criminal prosecution. The Court explained:
The Court continued:
(Doc. 77-2, pp. 13-14).
Finally, the Court recognized that if the evidence concerning Chief Muncey's conduct or the conduct of any other officer required further investigation because the conduct might give rise to criminal charges, any officer who might face criminal charges would be presumed innocent and would have the right to due process of law. Those constitutional rights might be compromised by premature publication of information relating to potential charges. (Doc. 77-2, pp. 29-32, 35, 36-37).
Therefore, the Court closed the hearing and adopted the hearing procedure that the Government proposed. For each witness who testified, the Court excluded from the courtroom everyone other than the attorneys for the Government, Officer Parker and his attorney, and the testifying witness and his attorney, if he had one. (Doc. 77-2, p. 24).
The evidence in the sealed record pertains to three topics: Chief Muncey and Captain Cook's alleged violation of the Court's Rule 615 sequestration order, Chief Muncey's alleged efforts to intimidate trial witnesses and to retaliate against those witnesses, and possible efforts by Chief Muncey and other senior personnel in the MPD to influence the testimony of officers who might be called to testify during any of the legal proceedings—civil or criminal—relating to the February 6, 2015 encounter between Mr. Patel and Officers Parker and Slaughter. The Court addresses those topics in turn.
As discussed above, a Rule 615 sequestration order prohibits a witness from hearing the testimony of other witnesses during trial. Captain Cook was subpoenaed as a trial witness, so he was subject to the sequestration order throughout trial. Chief Muncey also was subpoenaed as a trial witness, so he was subject to the sequestration order after the Court excused him from the courtroom on September 3, 2015, based on the Government's decision not to call Chief Muncey as an expert witness in the Government's case-in-chief.
The evidence discloses that after the Court ordered Chief Muncey to leave the courtroom, he returned to the police department and began reading media blogs that contained nearly verbatim accounts of the testimony of subordinate officers. (Doc. 77-2, pp. 51, 53-54, 83, 105, 156, 165-66, 171, 173-74). Captain Cook read the blogs, as well. (Doc. 77-2, pp. 104-05, 156, 166, 171, 173-74).
In addition, after the Court excluded Chief Muncey from the courtroom, Chief Muncey sent another senior officer to the courtroom to monitor the MPD officers who were testifying during trial. (Doc. 77-2, pp. 152-53, 157). Initially, Chief Muncey directed Captain Cook to attend the trial. The evidence indicates that Captain Cook told Chief Muncey that he could not attend because he was under subpoena, and he would violate the Court's sequestration order if he attended the trial. Consequently, Chief Muncey sent Sergeant Anderson to the courthouse because Sergeant Anderson was not under subpoena. (Doc. 77-2, pp. 115, 117, 151-53).
Sergeant Anderson testified about his communication with Chief Muncey and Captain Cook from the courthouse. He explained that during trial, he received an email from Chief Muncey in which Chief Muncey asked, "[H]ow is it going?" (Doc. 77-2, p. 155). Sergeant Anderson also received a text message from Captain Cook in which Captain Cook asked, "[A]re you keeping the chief updated on everything?" (Doc. 77-2, p. 155). When Sergeant Anderson asked Captain Cook what he meant by keeping the chief updated, Captain Cook said, "just kind of keep him apprised of the case." (Doc. 77-2, p. 156). When Sergeant Anderson sent a long text describing the events at trial, Chief Muncey sent a response and told Sergeant Anderson that his emails did not have to be as precise. (Doc. 77-2, p. 156). According to Sergeant Anderson, Chief Muncey's text also stated:
(Doc. 77-2, p. 156).
The record demonstrates that neither the Court nor counsel for the Government explained Rule 615 to Chief Muncey before the Court excused him from the courtroom pursuant to the rule, and counsel for the Government did not explain the rule to Captain Cook.
As to the allegations of witness intimidation and retaliation, through his attorney, Chief Muncey has acknowledged that he sent two emails to trial witnesses during the first Parker trial. He sent the first email to six officers who testified at trial. The email states:
(Doc. 77-2, pp. 60-61, 68, 73, 78, 83).
Chief Muncey sent the second email to law enforcement officials in police departments located outside of the City of Madison. The email concerns Mr. Smith, the defendant's expert in SSGT training and defensive tactics. Mr. Smith provides training throughout the southeast and in other parts of the country. That email states:
(Doc. 89, pp. 4-5).
The evidence also indicates that when Corporal Wesley Grigsby returned to the police department the day after he testified at trial, Chief Muncey confronted him about his testimony. Corporal Grigsby testified that Captain Cook called him into Chief Muncey's office. (Doc. 77-2, p. 51). Chief Muncey told Corporal Grigsby that he had reviewed portions of Corporal Grigsby's trial testimony on an online blog. (Doc. 77-2, p. 51). According to Corporal Grigsby, Chief Muncey expressed disappointment because Corporal Grigsby's testimony made the department look bad. (Doc. 77-2, p. 51). Corporal Grigsby testified that Chief Muncey handed him a folder that contained records of Corporal Grigsby's training along with the department's expenses associated with that training. (Doc. 77-2, p. 52). Corporal Grigsby testified that his encounter with Chief Muncey made him feel "[n]ervous. Very, very nervous. ..." (Doc. 77-2, p. 52). Corporal Grigsby stated that he left work early that afternoon because he knew that he would not be productive. (Doc. 77-2, pp. 52-53).
Corporal Grigsby was one of several officers who testified that Chief Muncey's conduct made them nervous and caused them to fear reprisal for their testimony during the first trial. (Doc. 77-2, pp. 52, 56, 62-63, 69-70, 74, 79-80, 84-86, 90). One officer, Officer Campbell, stated that he feared retaliation or repercussions before he testified at Officer Parker's trial, and this was a fairly prevalent feeling in the Madison Police Department. (Doc. 77-2, pp. 79-80). Various officers testified that Chief Muncey and Sergeant Anderson's presence in the courtroom during their trial testimony made them feel uneasy. (Doc. 77-2, pp. 74, 80). Sergeant Marc Bray stated that there was a sense in the Madison Police Department that Chief Muncey may have been trying to intimidate officers who testified at Officer Parker's trial and that the climate of the Madison Police Department had been "really tense" since the beginning of the trial. (Doc. 77-2, pp. 119-20). He added, "I know the first few days when [Chief Muncey] was here, I was afraid I was going to be called to testify and I would not want to give testimony with him sitting here." (Doc. 77-2, pp. 120-21).
During his testimony in the sealed hearing, Sergeant Anderson described meetings at the Madison Police Department during which officers studied the video footage of Officer Parker's takedown of Mr. Patel. The first was a meeting of MPD supervisors. Sergeant Anderson described the meeting this way:
(Doc. 77-2, pp. 172-73). MPD supervisors then conducted a meeting or meetings with subordinate MPD officers. When asked whether the meetings with officers were "an attempt to change officers' minds about what had happened," Sergeant Anderson replied:
(Doc. 77-2, pp. 174-75). Sergeant Anderson stated that after these meetings, "everyone seemed to be in agreement" that "the force was not reasonable." (Doc. 77-2, p. 173).
Sergeant Anderson testified that he felt that a number of officers who were "in an agreement in the supervisory's [sic] meeting" changed positions when they testified at trial. (Doc. 77-2, p. 170). During the first Parker trial, Sergeant Anderson met several times with Chief Muncey and other high-ranking officials at the Madison Police Department to discuss whether officers' actual trial testimony comported with the recitation of the testimony that appeared in an online blog. (Doc. 77-2, pp. 162-66). Sergeant Anderson stated that he was not aware of Mr. Patel's civil lawsuit, but he felt that a number of the officers who testified embarrassed the department. (Doc. 77-2, pp. 172-73).
During the first trial, counsel for the Government argued that the Court should refrain from commenting upon or allowing the introduction of evidence regarding the closed proceedings because that evidence might prejudice Chief Muncey in potential future criminal proceedings. (Doc. 77-2, p. 203). The Government moved to exclude the sealed evidence from the second trial pursuant to Rule 403 of the Federal Rules of Evidence, arguing that the evidence would distract jurors from their consideration of matters pertaining to Officer Parker's culpability. (Doc. 81; Doc. 90-2, pp. 4-5). Counsel for Mr. Parker argued that the Court should allow the parties to introduce the evidence at trial. (Doc. 77-2, pp. 198-99; Doc. 90-2, pp. 5-6).
There is no doubt that the evidence from the closed hearings was relevant to the Government's charge against Officer Parker. On the one hand, jurors could infer from the sealed evidence that Officer Parker's conduct, assuming he used a leg sweep and did not simply fall to the ground, violated MPD policy, and the department acted quickly to correct the violation and to prevent future violations by other officers. Jurors also could infer that many officers were disgruntled about the way in which the MPD handled its investigation of Officer Parker. On the other hand, jurors could infer from this evidence that Officer Parker's conduct was consistent with MPD policy, and senior MPD officers tried to ensure that no officer would give testimony to that effect because such testimony might expose the City of Madison to a civil damages award.
At the very least, evidence that MPD supervisors had to discuss the dashcam video of the takedown for "hours" amongst themselves and then have lengthy reviews of the video with subordinate officers is relevant because it suggests that the MPD's response to resistance policy was anything but clear. Jurors could reasonably infer from this evidence that even if Officer Parker did use a leg sweep to take Mr. Patel to the ground, Officer Parker's conduct was not willful because the MPD failed to train Parker and other officers in the constitutional boundaries for use of force. This evidence is consistent with trial evidence that demonstrated that in the two years after he graduated from the police academy, Officer Parker received only one use-of-force training opportunity. A few months before his encounter with Mr. Patel, Officer Parker attended a seminar called "Safe Neighborhoods." During the seminar, officers viewed video clips of police officers being hurt or killed and discussed steps that officers should take for their safety. (Doc. 106, pp. 39-40; Doc. 107, pp. 6, 9-11, 14-16, 30).
In addition, the sealed evidence is relevant to jurors' assessment of the credibility of a number of trial witnesses. From evidence of efforts of senior officers within the MPD to make sure that all officers were "on the same wavelength" and "on one sheet of music" and "in agreement" that the force that Officer Parker used was unreasonable, jurors reasonably could question the credibility of the more senior officers who testified. Conversely, the evidence that subordinate officers who Mr. Parker called at trial received emails from Chief Muncey requesting an explanation of their testimony and faced possible "future correction" might bolster the credibility of those witnesses in the eyes of jurors. That potential credibility evidence coupled with the evidence from the sealed proceedings would have allowed counsel for Officer Parker to argue that the MPD tried to portray Officer Parker as a rogue officer to protect the department's reputation and insulate the City of Madison from a civil damages award. In this regard, the record also indicates that Mr. Patel did not initiate the state misdemeanor assault charge against Officer Parker; Captain Cook completed the paperwork to initiate the state misdemeanor charge. (Doc. 77-2, pp. 74-75, 158-59). Had all of this evidence been before them, jurors reasonably could have concluded that Officer Parker was not a rogue officer but instead was a second year police officer with virtually no post-academy training who reasonably believed that he was complying with the MPD's response to resistance policy, and jurors, in turn, reasonably could have concluded that Officer Parker did not willfully deprive Mr. Patel of his constitutional right to be free from excessive force. (See Doc. 113, pp. 53-91).
Although the sealed evidence is relevant, the Court ultimately ruled in favor of the Government and excluded all of the sealed evidence from both trials pursuant to Rule 403 because the Court believed that the evidence might shift the focus of the trials from Officer Parker to Chief Muncey and other senior officers.
There are several reasons why it is appropriate for the Court to publish the sealed investigative proceedings now. First, because the Court granted Officer Parker's renewed motion for judgment of acquittal, potential confusion of the issues in this case and in Mr. Patel's civil action for damages no longer is a concern. (Doc. 113).
Second, the resolution of the federal criminal charge against Mr. Parker clears the way for Mr. Patel's civil suit for damages to proceed. The civil action has been stayed (i.e. placed on hold) pending resolution of the federal criminal prosecution. Mr. Patel's suit for damages is different from this criminal matter. The parties are different, the legal theories are different, some of the evidence is different, and Mr. Patel's burden of proof in a civil action is different from the Government's burden of proof in the federal criminal prosecution.
Finally, the Court has kept counsel for Chief Muncey and Captain Cook informed of the process that the Court has undertaken to determine the proper time to publish the sealed evidence. The Court has given counsel for Chief Muncey and Captain Cook an opportunity to review the sealed evidence, and counsel for Chief Muncey and Captain Cook have consented to the publication of that evidence. (See, e.g., Docs. 82, 124). Therefore, Chief Muncey and Captain Cook have waived any due process concerns that they may have concerning the publication of the evidence.
Now that the barriers to publication of the sealed transcripts concerning the evidentiary proceedings have been eliminated, the Court will provide public access to the transcripts in the Court's electronic record. The Court will initiate proceedings pursuant to Rule 42 to examine whether conduct by Chief Muncey and Captain Cook violated the Court's Rule 615 sequestration order during the first Parker trial. Fed. R. Crim. P. 42. To enable Mr. Patel's civil action to proceed without the complications that a broader criminal investigation might create, the Court will delay a decision about a request for a criminal investigation of alleged witness tampering.
By separate order, the Court will provide to Chief Muncey, Captain Cook, and the witnesses in the sealed hearings instructions about their ability to discuss their testimony in those hearings. By separate order, the Court will provide instructions to the Clerk of Court relating to the publication of the sealed transcripts.
Although the Court is not in a position to make findings about the legal significance of the conduct discussed in the sealed proceeding, the Court does make findings about the extent to which that conduct impacted the two criminal trials in this case. During the first Parker trial, the Court found that no witness in that trial changed his testimony because of possible repercussions from senior officers in the MPD. (Doc. 77-2, p. 183). The Court accepts the witnesses' representations that the pressure they felt within the police department did not change their trial testimony. (Doc. 77-2, pp. 54-55, 62, 69-70, 74, 82, 84, 88-89, 96, 100, 106, 111).
Before the second Parker trial began, the Court met with all of the witnesses from the sealed proceedings. The Court assured those witnesses that neither Chief Muncey nor any other officer would retaliate against them for their testimony during the trial. The Court met separately with Chief Muncey and Captain Cook and obtained their assurances that they would not contact, and they would not direct anyone else to contact, subordinate officers about those officers' trial testimony. The Court advised Chief Muncey and Captain Cook that they should refrain from reviewing press coverage of the second trial to avoid even the appearance of impropriety. (Doc. 122-2, p. 16). The Court has received no evidence that indicates that anyone attempted to influence the testimony of any witness in the second Parker trial.
The sealed proceedings greatly disrupted the first trial, and the evidence from the sealed proceedings created issues for both trials. Nevertheless, the Court finds that both trials were fair to the Government and to Mr. Parker. Although admission of relevant evidence concerning post-February 6, 2015 meetings at the MPD may have helped the Government carry its burden of proof, the evidence also may have made it more difficult for the Government to persuade jurors beyond a reasonable doubt that Officer Parker willfully violated Mr. Patel's rights under the Fourth Amendment. The Government asked the Court to exclude the evidence, and the Court does not believe that it abused its discretion by doing so. (Doc. 77-2, pp. 190-208; Doc. 81, p. 4; Doc. 90-2, pp. 4-6). In any event, the point is now moot.
Because media blogs were the vehicle through which Chief Muncey and Captain Cook learned about officers' trial testimony, the Court prohibited the use of electronic devices during the second Parker trial. (Doc. 93). The Court first raised the issue of excluding electronic devices with the parties during a September 21, 2015 telephone conference. In that discussion, the Court noted that it was "trying to strike the balance between the press' [sic] interest in and general right to report on [the trial] and the concerns that the blogging creates." (Doc. 84, p. 25). The Court discussed the topic with counsel again during an October 6, 2015 pretrial conference:
(Doc. 90-2, p. 16).
The Court issued a written order on October 26, 2015 that prohibited the use of electronic devices during trial. In the order, the Court explained that live blogs during the first trial provided sequestered witnesses with what amounted to a daily trial transcript. Relying in part on a Fifth Circuit Court of Appeals holding that is binding on this Court, the Court stated:
(Doc. 93, p. 3) (quoting Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1373 (5th Cir. 1981)). The Court also found that the live blogs violated the principle of the Court's Local Rule 83.2, which prohibits recording of trial proceedings. (Doc. 93, p. 3). The Court finds that the restriction on electronic devices struck a fair and appropriate balance between the right of access of the press to the criminal proceedings and the Court's obligation to enforce its sequestration order.
To account for the significant pretrial publicity relating to this case, the process of identifying and selecting impartial jurors for both trials was painstaking and exhaustive. "[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors," and an impartial jury's verdict "must be based upon the evidence developed at the trial." Irvin v. Dowd, 366 U.S. 717, 722 (1961) (citations omitted).
The law does not require that jurors have no pre-trial exposure to media coverage of a high profile case. Instead, the law requires jurors to set aside any prejudgments that they may have made about innocence or guilt and base their verdict solely on the evidence presented during trial. As the Supreme Court stated in Irvin:
Irvin, 366 U.S. at 722-23.
Before the first trial in this case, counsel for both parties acknowledged that the significant media coverage might affect the ability of potential jurors to be objective. (Doc. 114, pp. 6-9).
On the first day of the first trial, Judge Davis administered the written questionnaire to the members of the venire. (9/1/15 Minute Entry). The Court gave the parties hours to study the responses to the written questionnaires before conducting voir dire in open court.
At the close of the evidence, the Court instructed the jurors on the law and released the alternate jurors. During two days of deliberations, the jurors asked questions and sent notes to report that they were deadlocked. (Docs. 52-56). The Court declared a mistrial after the jury foreperson reported for the fourth time that the jurors were deadlocked. (Doc. 71, p. 62).
On September 17, 2015, less than a week after the first jury could not reach a verdict, the Court learned that a local columnist published an article entitled "Why I Grieve Over the Racially Split Hung Jury in Madison Cop Trial." The editorial appeared on AL.com, a media outlet for Northern Alabama. (http://impact.al.com/opinion/print.html?entry=/2015/09/why_i_mourn_the_raciall y_divid.html, last visited January 24, 2016). The column states:
(http://impact.al.com/opinion/print.html?entry=/2015/09/why_i_mourn_the_raciall r_divid.html, last visited January 24, 2016).
The Court fully acknowledges the right of the columnist to write this article, just as the Court recognizes the right of every individual to share the columnist's views or to hold and express any other opinion about the jurors' deliberations and every other aspect of this case. The First Amendment guarantees those rights, and federal courts preserve those rights when those rights are challenged in court. The columnist was doing his job. Nevertheless, the Court had practical concerns about the impact that the article might have on the second trial that the Court was preparing to schedule. At a minimum, the commentary expresses a view that the jurors' deliberations in the first trial were racially tinged; at worst, the commentary expresses a view of outright racial bias. Such public accusations of racial bias had the power to influence jury selection and jury deliberations in the second trial.
The Court advised counsel of its concern about jury selection during a September 21, 2015 hearing. When the Court raised the editorial article, counsel brought to the Court's attention an article by another reporter that discussed the racial breakdown of the deadlocked jury in the first Parker trial. (Doc. 84, p. 21).
(Doc. 84, pp. 20-21).
Of course, jury service is not voluntary in this country. When summoned, absent extenuating circumstances, citizens are obliged to appear for and participate in the jury selection process, and if chosen, a citizen must serve. 28 U.S.C. § 1861 ("It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose."); see also 28 U.S.C. § 1866. Jury service is one of the highest civic obligations of a citizen in this country, and next to military service, it can be one of the most challenging. Powers v. Ohio, 499 U.S. 400, 407 (1991) ("Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process."). Because it can be so challenging, individuals sometimes are reluctant to serve on a jury. That reluctance may intensify in a high profile case because jurors in a high profile case recognize that their decision will receive substantial public scrutiny. Such reservations are routine, and judges and lawyers are equipped to address them.
The September 17, 2015 editorial is more than what most jurors bargain for in terms of scrutiny. The editorial does not merely criticize the decision; it criticizes and labels the jurors who found that the Government had not carried its burden of proof. An article such as this has a tendency to make individuals think twice about serving on a jury in a high profile case like this one. To avoid service, individuals may state their unwillingness explicitly—as more than a dozen members of the venire in the second trial did—or they may demonstrate their reluctance to serve in other ways during the jury selection process. (Doc. 123-2, p. 27). Individuals' reservations about serving as jurors add challenges to an already complex and arduous jury selection process.
More troubling is the possibility that fear of labeling might cause a juror to cast a vote during deliberations to avoid accusations of racial bias or to address other concerns about public scrutiny of jury deliberations. As the Court instructed the juries in both trials, a verdict in this case had to be based on the evidence; the verdict could not "be influenced in any way by either sympathy for or prejudice against the defendant Mr. Parker or the government." (Doc. 69, pp. 146-47; Doc. 107, p. 138-39).
To try to minimize the chilling effect that the articles about the first verdict might have, the Court took a number of steps. First, the Court advised counsel that they would have to use numbers rather than names during voir dire in the second trial. (Doc. 84, p. 22). Second, Judge Davis added a question to the written juror questionnaire designed to assess the extent to which media coverage during and after the first trial may have impacted potential jurors' abilities to consider the evidence in the second trial objectively. (Doc. 84, p. 22-23).
U.S. v. Gainey, 111 F.3d 834, 836 (11th Cir. 1997), cert. denied, 522 U.S. 962 (1997) (emphasis in Gainey).
The Court notes that the record from the first trial indicates the members of the jury made a good-faith effort to discharge their duty. The record discloses specific issues that the jurors wrestled to resolve. During their deliberations, the jurors asked: "What legal justification does a police officer need to physically prevent a person from walking away and patting him down?" and "Is it against the law for Mr. Patel to leave the house without identification and/or a green card?" (Doc. 53). The jurors asked additional questions after the Court declared a mistrial. With the consent of counsel for the Government and for Mr. Parker, the undersigned visited with the jurors briefly in the jury room before the Court released the jurors. After thanking the jurors for their service, the Court asked if any of the jurors had questions about trial procedures that the Court might be able to answer. A juror asked where Officer Slaughter was. Officer Slaughter is the MPD officer who participated with Officer Parker in the investigatory stop of Mr. Patel. A juror explained that Mr. Patel's hands were not visible in the dashcam video, and Officer Slaughter would be able provide testimony about the position of Mr. Patel's hands before the frisk and takedown.
All of these questions indicate that the jurors were trying to sort through the evidence pertaining to the severity of the crime that Officer Parker and Officer Slaughter were investigating and Mr. Patel's possible resistance to the officers' investigatory stop and pat down, considerations that correspond directly to the "totality of the circumstances" jury charge. Before the jury retired to deliberate, the Court instructed the jurors: "Whether a specific use of force is reasonable or unreasonable depends on the totality of the facts and circumstances of each case." (Doc. 69, p. 152). The Court continued: "Those facts include the severity of the crime the person is being arrested for; whether a suspect [poses] an immediate violent threat to others; and whether the suspect resists or flees." (Docs. 69, 152). When the jurors asked about the pat down and the green card, at the Government's urging, the Court responded by repeating the totality of the circumstances instruction; the Court did not answer the green card question. (Doc. 71, pp. 4-24). The Court refused defense counsel's request for additional instructions concerning reasonable suspicion, but the Court cautioned counsel for the Government that the Court was concerned that a simple restatement of the totality of the circumstances instruction would not answer the jurors' question.
It would not be surprising—in fact, it would be logical—if the jurors who posed these questions to the Court remained uncertain about the significance of the evidence concerning reasonable suspicion. The jury instructions dictate that such uncertainty would have consequences. The instructions state: "The government must prove guilt beyond a reasonable doubt. If the government fails to do so, you must find Mr. Parker not guilty." (Doc. 69, p. 149). "Proof beyond a reasonable doubt is proof so convincing that you would be willing to rely and act on it without hesitation in the most importan[t] of your own affairs." (Doc. 69, p. 149).
The Court finds that it is appropriate to continue to withhold from publication information concerning jurors and their deliberations. The Court is redacting that information from the transcripts that will be published. Doing so protects the jurors from possible public ridicule. Maintaining the confidentiality of this information also minimizes the impact that media coverage of jurors may have on jury selection for a potential trial in Mr. Patel's civil case or in the state criminal prosecution.
As a general matter, the Court does not ordinarily publish a transcript of the jury selection process unless a party requests a transcript for purposes of challenging some aspect of jury selection on appeal. For reasons unique to this case, the Court has decided to publish the transcript of jury selection from the second trial.
The Court is redacting from the transcript of the jury selection process all personal identifying information pertaining to members of the venire and all portions of jury selection that were conducted outside of the hearing of the full courtroom. Potential jurors provide sensitive information to the Court to fulfill their obligation, by oath, to provide complete, truthful answers to the questions posed during voir dire, but potential jurors do so outside of the hearing of the others in the courtroom with the understanding that their confidences will be maintained. The Court will not violate that confidence. The publication of such information in any case can diminish or destroy citizens' willingness to participate in the jury selection process, and the potential harm is more pronounced in a highly publicized case such as this one. See In re Greensboro News Co., 727 F.2d 1320, 1326 (4th Cir. 1984) ("[P]otential jurors will be more candid in their responses if they do not have to worry about what the public's opinion of those responses might be."); United States v. King, 140 F.3d 76, 80 (2d Cir. 1998) ("[T]he usual instruction to members of the venire not to read press reports of the trial, including jury selection, cannot be relied on to avoid inhibiting candor because the jurors might be told of press accounts of their responses by others, before they could prevent such communication, and because the jurors would fear the adverse reaction of friends, employers, or others who might disapprove of the jurors' candid views."). Accordingly, the Court will publish a redacted transcript of jury selection in the second Parker trial.
That, as they say, is the rest of the story—at least as much of the story as the Court knows based on the evidence in the record of this federal criminal case. As noted, neither Chief Muncey nor Captain Cook testified at trial or in the evidentiary hearings, and there is other evidence that counsel for the parties opted not to offer at trial. By publishing not only the transcripts of the sealed evidentiary hearings but also the transcripts of chambers conferences that occurred during both trials—conferences that rarely are made public—the Court has attempted to share virtually everything that is in the record and provide as much transparency as possible while protecting the interests of jurors who did not volunteer for their roles in these trials and who discharged their duties in good faith.
In the big picture, this is only the end of a chapter. It is not the end of the entire story. The transcripts of the closed evidentiary hearings suggest that the story is more complicated than it appears at first blush. Having watched this chapter unfold, the Court can say that the attorneys, the jurors, and the reporters worked hard to tell this part of the story. That work will continue as other judges and lawyers press forward to bring the complete story of this tragic series of events to a conclusion.
One witness provided testimony during a telephone conference a few days after the September 8, 2015 hearing. That witness was not available on September 8, 2015 for personal reasons. (Doc. 75-2, pp. 18-23).
A few days after the jury in the first trial deadlocked, the Court held another telephone conference to examine Mr. Smith about the email that Chief Muncey sent to various police departments pertaining to Mr. Smith's trial testimony. (Doc. 89, pp. 3-8).
The jury that the Court seated for the second Parker trial reflected the pool from which the jury was selected. After the Court excused a number of potential jurors on the basis of hardship for health and family reasons and the Court granted motions to strike three potential jurors for cause, the jury pool consisted of 52 individuals, 11 of whom were African-American. The final jury was composed of eight Caucasians, two men and six women, and four African-Americans, one man and three women. There were two alternate jurors; one was African-American, and the other was Caucasian. Neither alternate juror participated in jury deliberations. (Doc. 107, p. 173).
Any attempt by any party in any case to produce a particular verdict by manipulating the racial composition of a jury runs afoul not only of the Equal Protection Clause but also of the fundamental respect that the rule of law provides to individuals. Such a strategy is based on the flawed notion that the diverse perspectives that jurors bring to the evidence in a case can be collapsed into the single dimension of race. The law abides no such assumptions. Moreover, practice defies such projection as racially diverse juries return verdicts every day in all manner of cases, including cases in which race is an element of a criminal charge or civil claim. There simply is no place for racial bias in jury selection or in any other part of a trial.
This evidentiary void affected not only the Government's ability to sustain its burden of proof but also Mr. Parker's right to a fair trial. When all was said and done, three of the witnesses who Mr. Parker had subpoenaed for trial—Chief Muncey, Captain Cook, and Officer Slaughter—had been implicated in potential misconduct that affected their ability to testify at trial. (Doc. 77-2, pp. 9-10, 13, 22, 36, 38). This was no small matter.
