10-2359 U.S. v. Blagojevich

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Criminal Procedure
Right to public trial

It was error to refuse to disclose jurors' names until after trial without an evidentiary hearing.
"[B]ecause the judge acted without evidence, and the arguments at the brief hearing on the motion to intervene postdated the judge's decision (which had been conveyed to jurors the previous day), we do not know the answers to some vital questions. Have jurors in other publicized cases been pestered electronically (email, instant messaging, or phone calls), or by reporters camped out on their doorsteps? If judges in other high-visibility cases have told the jurors to ignore any unsolicited email or text messages, have those instructions been obeyed? If not, do any practical alternatives to sequestration remain? The Department of Justice, and the lawyers who represent the press, may be able to present evidence and arguments that would be helpful in addressing those issues. Findings of fact made after an appropriate hearing must be respected on appeal unless clearly erroneous. But no evidence was taken, no argument entertained, no alternatives considered, and no findings made before this decision was announced to the jurors."

"Instead of pressing on to construct a framework for hearings, findings, and rules for decision, we think it best to ensure that a hearing is held so that the justification for and alternatives to the delayed release can be addressed. Once we have a better basis for understanding not only the risks of releasing the names before the trial's end, but also other options (and the risk that alternatives such as cautionary instructions will fail), we then can ask whether the district judge abused his discretion in thinking that the presumption in favor of releasing jurors' names as soon as they are seated has been overcome."

Vacated and Remanded.

10-2359 U.S. v. Blagojevich

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Easterbrook, J.

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