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Judge Grants Partial Access to Jury Selection in El Chapo Trial

By Al-Amyn Sumar

In a decision rendered in late October, the district judge presiding over the trial of Joaquin "El Chapo" Guzman in the Eastern District of New York granted the press partial access to voir dire proceedings. U.S. v. Joaquin Archivaldo Guzman Loera (E.D.N.Y. Oct. 30, 2019).

The judge had previously indicated he would conduct jury selection in chambers outside the view of the public and any press. In light of the press's objections, however, he reconsidered and opted to hold the proceedings in the courtroom, with five pool reporters present.

Background

Guzman, who gained worldwide notoriety for repeatedly – and in dramatic fashion – eluding law enforcement and escaping custody, was formerly at the helm of Mexico's Sinaloa cartel. Prosecutors allege that as head of the cartel, Guzman oversaw drug trafficking in massive quantities and conspired in the murder of cartel enemies. Because of the nature of these charges, the district judge had earlier directed that the jury be anonymous and partially sequestered. He also indicated that he would hold jury selection proceedings in his chambers without any public or press present.

The New York Times Company ("The Times") and other news organizations requested access to the voir dire. Citing the Second Circuit's decision in ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004), The Times argued that the public's First Amendment right of access could not be abridged merely because of intense media coverage of the trial. The Times proposed that a group of reporters be permitted to observe the proceedings from the jury box, with a single pool reporter present for sidebar conversations. The parties objected. Stressing the need for juror candor, they asked the judge to limit access to the proceedings to a video feed, observable either by a single pool reporter (as the Government proposed) or a wider group of journalists (as Guzman's counsel requested).

District Court Ruling

Judge Brian Cogan granted partial access to the proceedings. He found that full access was not warranted: the "highly-publicized nature" of the trial, though not a sufficient basis to close proceedings, risked inhibiting the candor of jurors. So did "queries on potentially charged topics, such as federal narcotics policy and law-enforcement relations between the United States and Mexico" (discussing United States v. King, 140 F.3d 76 (2d Cir. 1998)). And because of the nature of the charges against Guzman, potential jurors might be loath to voice an unpopular view out of fear that onlookers would "connect that response to their appearance in a way that could put their safety at risk."

Judge Cogan also considered reasonable alternatives to closure. Though a gallery or jury box filled with reporters might be intimidating to prospective jurors, a small number of press would not. Judge Cogan was not persuaded that a video feed would lessen the risk of intimidation, and – given Guzman's concern about the need for multiple viewpoints among the press covering the case – rejected the Government's suggestion to have a single pool reporter attending the proceedings.

Though the procedure that Judge Cogan ultimately fashioned did not grant the full public access that The Times and others sought, it nonetheless assured partial live access. Judge Cogan opted to hold jury selection in the courtroom, with five pool reporters observing from the jury box. However, sidebar conversations with prospective jurors would be held in camera, and the transcript of the proceedings, including sidebar conversations, would be released at the end of the proceedings.

David McCraw, Vice President & Deputy General Counsel The New York Times Company, and Al-Amyn Sumar, New York Times First Amendment Fellow, acted on behalf of The New York Times Company in this matter.

 
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