United States District Court, D. Massachusetts
ORDER ON THE BOSTON GLOBE’S MOTION REGARDING
Sorokin United States District Judge.
week, the Court held a sealed hearing concerning the
admissibility of certain evidence in the upcoming penalty
phase trial of Gary Lee Sampson. The Boston Globe (Globe), by
oral motion raised in court on August 15, 2016, asserted a
First Amendment right of access to this hearing, and
requested that the Court open the hearing to the public or,
alternatively, that the Court seal only those portions of the
hearing necessary to safeguard a compelling
interest. The Court heard argument from the Globe
and the parties on this motion; the government supported it,
and Sampson opposed. From the bench, the Court denied the
Globe’s motion without prejudice. This Order
memorializes the Court’s reasoning.
Court assumes that the Globe has a First Amendment right of
access to the hearing in question. See Press-Enter. Co.
v. Super. Ct. of Cal., 478 U.S. 1, 10 (1986)
(Press-Enterprise II); In re Providence Journal
Co., Inc., 293 F.3d 1, 10 (1st Cir. 2002). “But
even when a right of access attaches, it is not
absolute.” Press-Enterprise II, 478 U.S. at 9.
“[T]here are some limited circumstances in which the
right of the accused to a fair trial might be undermined by
publicity.” Id. “In such cases, the
trial court must determine whether the situation is such that
the rights of the accused override the qualified First
Amendment right of access.” Id. More
particularly, “[i]f the interest asserted is the right
of the accused to a fair trial, the [hearing] shall be closed
only if specific findings are made demonstrating that, first,
there is a substantial probability that the defendant’s
right to a fair trial will be prejudiced by publicity that
closure would prevent and, second, reasonable alternatives to
closure cannot adequately protect the defendant’s fair
trial rights.” Id. at 14.
response to the Globe’s oral motion, the Court ruled
from the bench that it sealed this hearing so as to preserve
Sampson’s Sixth Amendment fair trial right by
preventing public exposure to possibly inadmissible evidence.
“No right ranks higher than the right of the accused to
a fair trial.” Press-Enter. Co. v. Super. Ct. of
Cal., 464 U.S. 501, 508 (1984). Accordingly, the First
Circuit has held that, “[w]hen the rights of the
accused and those of the public come irreconcilably into
conflict, the accused’s Sixth Amendment right to a fair
trial must, as a matter of logic, take precedence over the
public’s First Amendment right of access to pretrial
proceedings.” In re Globe Newspaper Co., 729
F.2d 47, 53 (1st Cir. 1984); accord In re Providence
Journal, 293 F.3d at 13.
logic applies here. The Court will begin to empanel a jury
for Sampson’s new penalty phase trial in a matter of
weeks, starting on September 14, 2016. As this is a death
penalty proceeding in a place where the death penalty is
unavailable at state law, it has garnered significant media
attention over the years. At this week’s proceeding,
the Court heard evidence, some of which was inflammatory, and
none of which has yet been ruled admissible at trial.
Exposing the public to prejudicial evidence that may be
inadmissible is likely to prejudice Sampson’s right to
a fair trial, especially given that the exposure would occur
in such close proximity to jury empanelment. See In re
Globe Newspaper, 729 F.2d at 55 (noting that in “a
highly publicized case, ” the “premature
publication of damaging” evidence that is inadmissible
“might make a fair trial impossible, at least in the
venue [the] defendant would ordinarily prefer”);
United States v. McVeigh, 119 F.3d 806, 813 (10th
Cir. 1997) (same).
the fact that Sampson’s first death sentence was
vacated because a juror lied during voir dire, Sampson v.
United States, 724 F.3d 150, 156 (1st Cir. 2013),
creates a heightened need to protect the integrity of the
jury selection process this time around. As the First Circuit
said recently in a decision on an interlocutory appeal in
this case, “[i]ncurring the pain inflicted by a third
trial is to be avoided, if not needed.” Sampson v.
United States, No. 16-1727, 2016 WL 4137631, at *4 (1st
Cir. Aug. 4, 2016). The Court, therefore, is taking all
precautions necessary to ensure that it empanels an impartial
jury for the new penalty phase hearing.
“there is a substantial probability that the
defendant’s right to a fair trial [would] be
prejudiced” by opening this week’s hearing to the
public. See Press-Enterprise II, 478 U.S. at 14.
Sealing the courtroom ameliorates this concern, and it would
have been impractical to conduct this evidentiary hearing,
which includes witness testimony, as a public proceeding
without exposing the public to potentially inadmissible,
inflammatory evidence. Therefore, the Globe’s motion is
DENIED. In the interest of narrowly tailoring the
Court’s closure order, however, this Order is temporary
and only in effect until the Court renders its decision on
the admissibility of the evidence at issue in this
week’s hearing. At that point, the Court will revisit
the issue of sealing the transcript of the hearing and
related papers. Accordingly, the denial is WITHOUT PREJUDICE
to the Globe renewing its request upon the Court’s
ruling and related further decision regarding whether to
maintain the seal.
 The Court construes the Globe’s
motion as one to intervene for the purpose of seeking the
modification or termination of the Court’s closure
order, and the Court allows the Globe’s limited