1.Public-Trial Status and Transmission Safeguards
24 linesP R O C E E D I N G S
(Attorney Fick not present.)
THE COURT: Good morning. Phil, this is sidebar.
(SIDEBAR CONFERENCE AS FOLLOWS:
THE COURT: We have a new filing by the defense. The prosecution has seen it?
MR. BRUCK: Yes, your Honor. Before we do anything today -- and this probably shouldn't be sidebar -- we have a matter having to do with the public trial issue that we just -- really housekeeping, but we'd -- we're concerned about the -- if this could be not --
THE COURT: I don't know what it is yet.
MR. BRUCK: It's simply to express our concern about the technical problems that have been occurring and to have some system in place to ensure that if the -- if there's a breakdown --
THE COURT: We were just talking about that before we came in. And what we're going to ask is, if the -- there is a problem with the transmission, either audio or video, you signal us immediately, and we will recess to fix it. We won't continue in light of it.
MR. BRUCK: Great. Okay. We'd like the press to be informed that that system is in place.
THE COURT: We can do that.
MR. BRUCK: And that there was a focus on it.
THE COURT: We'll do that.
MR. BRUCK: Thank you.
MR. WEINREB: Your Honor, the government also had something on the public trial question, which is simply that the defense, as the Court knows, waived its right to -- under the Sixth Amendment to a public trial with respect to the voir dire proceedings. And we would just ask that that waiver be renewed each morning so that we don't have any unclarity in the record about whether the arrangements that are being made are being made solely for First Amendment purposes rather than Sixth Amendment purposes.
THE COURT: Well, I'm aware -- I think I'm aware of what you're talking about. I didn't regard it as a formal waiver, plus it isn't nonpublic because the defense is permitted to have people here, as we talked last week. So I regard it, as to the defense and as to the prosecution as well, that the permission to have certain limited number of people to be in the courtroom who are members of the public, that's there. It's available. And I understand the defendant has -- yesterday had nobody here. The invitation still remains, and it's open in that sense. So I don't regard that a waiver is necessary.
MR. WEINREB: Well, we don't regard that a waiver is necessary either, but it's our understanding the defendant, in fact, did waive his right yesterday; and if he is prepared to waive it, if that's his -- if that's his desire, his intent, then we just ask that that be placed on the record each morning. We agree that the Court has taken sufficient precautions to maintain this as a public proceeding, and this is more in the -- more in the way of an excess of caution than anything else, making the record so clear that it precludes any need for any future litigation about it if the situation arises.
THE COURT: Does the defense want to respond to that in any way?
MS. CLARKE: Your Honor, our position is and has been that this is a better arrangement for voir dire, and it promotes the kind of voir dire that was going to be and continues to be necessary in this venue. And the defense is satisfied that there should not be a courtroom filled with people.
We are, however, concerned -- as I went into the room to see what it's like over there, we are very concerned that the technology is not permitting the press the appropriate access. And if that can be fixed, we're fine with it.
But as the Court knows, we like the arrangement of the voir dire in this sort of more informal setting for the jurors to promote truthful answers. It may be that the Court should let the press into the courtroom when the panel comes in to be instructed and have the press leave when the panel leaves so that there is some sense that this isn't, you know, a secret proceeding. They shouldn't be feeling that way already because there are TVs and audio and video in that room. But there's been large numbers of complaints from them. I'm sure that the Court has heard about their ability -- they missed an entire juror yesterday apparently because --
THE COURT: Well, to the extent of technology failures, we'll be sensitive to that and recess to get them fixed. To the extent you're addressing technology design, that is, how we've set it up, what the camera can show, et cetera, that's, I don't think, problematic. And, you know, I have to say informally, having read a couple of stories in the press this morning, it seems that the press was rather well-informed about what had happened yesterday and doesn't seem as serious impairment of their ability to provide the public with information about what's going on actively in the trial. But if they're interfered with because the technology fails, that's a different matter, and we'll respond better than we responded yesterday.
MS. CLARKE: I think that was our point.
MR. WEINREB: All I would ask in that is, your Honor, that barring glitches in technology that the defense regards this as a public proceeding under the Sixth Amendment as does the Court and government so that there's no issue down the road that there was any misunderstanding about it.
THE COURT: Okay. I think that's fair. Do you have any quarrel with that statement?
MR. BRUCK: No, sir.