GORSUCH, Circuit Judge.
This case began when a grand jury indicted Mark Pope for violating 18 U.S.C. § 922(g)(9). That statute makes it a federal felony for a person previously convicted of a misdemeanor crime of domestic violence to possess a gun. In response to the indictment, Mr. Pope filed a motion to dismiss. While he admitted to being previously convicted of a domestic violence crime, and to possessing a gun, Mr. Pope pressed an affirmative defense that, he said, precluded his conviction. Because he possessed the gun in question only on the property where he was living and only to protect himself, others, or his property, he argued that the application of § 922(g)(9) to him would violate the Second Amendment. While the statute may be constitutional as applied to other situations, it is, he submitted, unconstitutional as applied to the facts of his case.
The district court denied Mr. Pope's motion to dismiss and today we affirm that decision. We do so without passing, one way or the other, on Mr. Pope's Second Amendment defense because an antecedent procedural problem lurks here. All the material facts on which Mr. Pope's motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope's guilt or innocence. Under these circumstances, Fed.R.Crim.P. 12(b)(2) and our precedent preclude the resolution of Mr. Pope's as-applied constitutional challenge before trial.
I
The indictment in this case is a model of Spartan prose. Count I, the only portion of the indictment still at issue, alleges simply that "[o]n or about August 14, 2007, in the Central Division of the District of Utah, Mark R. Pope, the defendant herein, having been convicted in any court of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(33), did knowingly possess in and affecting interstate commerce a firearm, that is, a .22 caliber High Standard revolver; all in violation of 18 U.S.C. § 922(g)(9)." R. Vol. I at 8-9.
In response to this charge, Mr. Pope filed a motion to dismiss arguing that § 922(g)(9) is unconstitutional as applied to him. Mr. Pope's motion sought to rely on the Supreme Court's decision in District of Columbia v. Heller, ____ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and its recognition of the Second Amendment's individual right to bear arms. See also McDonald v. City of Chicago, Illinois, ___ U.S. ___, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Mr. Pope readily acknowledged Heller's dictum that its recognition of an individual right was not meant to upset "longstanding prohibitions on the possession of firearms by felons." Id. at 2816-17; see also McDonald, 130 S.Ct. at 3047; United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009). But, while felons may be barred from possessing firearms, Mr. Pope argued, the Second Amendment is violated when misdemeanants are prevented from possessing firearms purely for the "protection of self, property and home." R. Vol. I at 23. See generally In re United States, 578 F.3d 1195 (10th Cir. 2009) (Murphy, J., dissenting); McCane, 573 F.3d at 1047-50 (Tymkovich, J., concurring); United States v. Skoien, ___ F.3d ___, 2010 WL 2735747 (7th Cir. 2010) (en banc).
And this, he submitted, describes his situation exactly. While the indictment was silent about the reason for his possession, Mr. Pope provided an evidentiary proffer in an effort to fill the void. In his proffer, Mr. Pope claimed that, while he was living with friends, he and one of his dogs were attacked by a neighbor's dogs. In response, he walked to the neighbor's house carrying the handle of an ax (though, he stressed, without the blade) and confronted her. After the confrontation, the neighbor called the police to report the incident. When officers arrived at the home where Mr. Pope was living, they found him in the front yard with a pistol in his front pocket. Mr. Pope claimed the gun belonged to his wife and, consistent with Heller's recognition that "the need for defense of self, family, and property is most acute" in "the home," 128 S.Ct. at 2817, he claimed that he had taken possession of his wife's gun for exactly these reasons. In these circumstances, he contended, any conviction under § 922(g)(9) would be unconstitutional and so the indictment against him had to be dismissed.
Opposing Mr. Pope's motion, the government argued that, as a general rule, motions to dismiss seeking to test the legal adequacy of an indictment must be analyzed solely on the basis of the factual allegations contained in the indictment. And, the government emphasized, none of the facts essential to Mr. Pope's as-applied constitutional challenge could be found in the indictment. The government acknowledged that an exception to the general rule against resort to facts outside the indictment exists when the motion is based on agreed facts, the government offers no objection to the consideration of those facts, and the motion is capable of resolution as a matter of law. But, the government argued, this particular exception "is inapplicable here." R. Vol. I at 29. Indeed, the government proceeded to argue that the facts surrounding Mr. Pope's offense were very different from those he described. At trial, the government said it would show that (1) Mr. Pope was never attacked by the neighbor's dogs, and (2) Mr. Pope threatened the neighbor that, if he ever saw her dogs outside her yard, he would kill both them and her. And, the government seemed to suggest, if the district court did venture outside the indictment to consider the facts likely to be adduced at trial, these same facts would preclude the conclusion that § 922(g)(9) is unconstitutional as applied to this case because they show Mr. Pope wasn't seeking simply to protect "self, property, and home." R. Vol. I at 23.
The district court took the parties' dispute under advisement and soon issued a succinct order stating that "the Court hereby adopts the position of the United States and denies the Defendant's Motion to Dismiss." R. Vol. I at 49. From this, we understand the district court to have adopted both (1) the government's position that the motion wasn't ripe for resolution before trial, because deciding it would require resort to disputed facts outside the indictment; and (2) the government's apparent additional view that, even if the motion could be resolved before trial, it would have to be decided against Mr. Pope on the merits.
After the district court's ruling, Mr. Pope opted to plead guilty and was sentenced. In agreeing to plead guilty, however, he reserved his right to appeal the district court's denial of his pre-plea motion to dismiss. Mr. Pope now exercises that reserved right before us.
II
We affirm. We do so not on the merits of the constitutional question but because we agree that Mr. Pope's motion to dismiss could not be appropriately resolved before trial. In reaching this holding, we first outline the legal principles that govern our analysis before turning to their application in this case.
A
The Federal Rules of Criminal Procedure encourage the pretrial resolution of a number of important, and even some potentially dispositive, matters. So, for example, parties must raise certain arguments before trial — such as those seeking the suppression of the evidence on which the prosecution relies — or risk waiving them. See Fed.R.Crim.P. 12(b)(3), (e). Other issues may be addressed by pretrial motion at a party's election. See Fed.R.Crim.P. 12(b)(2). But still other matters may not be raised by pretrial motion at all. Id.
With respect to this final category, Rule 12 authorizes the district court to resolve before trial only those motions "that the court can determine without a trial of the general issue." Fed.R.Crim.P. 12(b)(2) (emphasis added). In a criminal case, the "general issue" is "defined as evidence relevant to the question of guilt or innocence." United States v. Yakou, 428 F.3d 241, 246 (D.C. Cir. 2005) (quotation marks omitted). Thus, the Supreme Court has instructed, Rule 12 permits pretrial resolution of a motion to dismiss the indictment only when "trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense." United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); see also United States v. Knox, 396 U.S. 77, 83, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); United States v. Mandujano, 425 U.S. 564, 585 n. 1, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (Brennan, J., concurring). If contested facts surrounding the commission of the offense would be of any assistance in determining the validity of the motion, Rule 12 doesn't authorize its disposition before trial.
The reasons that have been offered for this longstanding rule are many and various. See 1A Charles A. Wright Andrew D. Leipold, Federal Practice and Procedure § 190, at 385 (4th ed. 2008) ("With slight alteration [Rule 12(b)(2)] has remained unchanged since the Rules were first adopted"); id. at 442 n. 7 (discussing alteration of language in 1975). Perhaps most prominent among them is respect for the role of the jury. The jury is, of course, charged with determining the general issue of a defendant's guilt or innocence. Fact-finding by the district court based on evidence that goes to this question can risk trespassing on territory reserved to the jury as the ultimate finder of fact in our criminal justice system. See United States v. Fadel, 844 F.2d 1425, 1430 (10th Cir. 1988); United States v. King, 581 F.2d 800, 801-02 (10th Cir. 1978); United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452-53 (9th Cir. 1986); see also Wright Leipold, supra, § 194, at 442 n. 7 (noting that genesis of the rule was to prevent resolution of issues that belonged to the jury). But this is not the only rationale cited for the rule. Even when the court is ultimately responsible for deciding the merits of a legal defense, it is sometimes said evidence adduced at trial can provide a "more certain framework" for its analysis — particularly when it isn't clear before trial precisely what evidence will and won't be admissible. United States v. Reed, 114 F.3d 1067, 1070 (10th Cir. 1997) (holding that district court's voidfor-vagueness determination "should be based only on the facts as they emerge at trial"). And, of course, it also disserves judicial economy to hold a separate "mini-trial" on a defense only to repeat the exercise with largely the same evidence a short time later at the trial itself. A pretrial hearing in these circumstances may wind up being little more than a "dress rehearsal[]" that is not only needlessly repetitive but that might also facilitate an end-run around the limited discovery rules governing criminal prosecutions. Fadel, 844 F.2d at 1430; see Fed.R.Crim.P. 16(a), 26.2; 18 U.S.C. § 3500. After all, unlike their civil counterparts, criminal proceedings have no extensive discovery and summary judgment procedures requiring both sides to lay their evidentiary cards on the table before trial. See, e.g., United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000). Rule 12(b)(2), it is said, helps draw and police this distinction between civil and criminal procedure.
Accepting that Rule 12(b)(2) has long governed, and continues to govern, federal criminal proceedings, what motions might be said to be susceptible to pretrial determination without implicating what the Rule calls "trial of the general issue"? They fall into two general categories. First, some pretrial motions simply do not implicate the general issue at all. These include motions related to what evidence might be admitted at trial ( e.g., suppression motions), or the conduct of and preparation for trial ( e.g., joinder of offenses and codefendants, venue, bills of particulars, and discovery), for example. See Wright Leipold, supra, § 191, at 390-92. They also include other motions that seek and result in dismissal of the case altogether but that can be decided, at least in the circumstances of the case at hand, without deciding any disputed questions of fact about the circumstances of the alleged crime ( e.g., some speedy trial violations). See id. So long as a motion implicates "fact[s] peculiar to the motion," and not facts surrounding the question of guilt or innocence, it can't be said to implicate the general issue. Covington, 395 U.S. at 60, 89 S.Ct. 1559. See also Rule 12(d) (requiring district court to state its "essential findings on the record"). Motions of this kind, however, may involve only the taking of evidence that is "entirely segregable from the evidence to be presented at trial." United States v. Barletta, 644 F.2d 50, 58 (1st Cir. 1981).
Second, other motions may implicate the general issue, but they present themselves for resolution before trial because they don't require a trial of the general issue. So, for example, a court may always ask "whether the allegations in the indictment, if true, are sufficient to establish a violation of the charged offence" and dismiss the indictment if its allegations fail that standard. United States v. Todd, 446 F.3d 1062, 1068 (10th Cir. 2006). Even if this question can be fairly said to implicate the general issue, it doesn't require a trial because it focuses solely on the facts alleged in the indictment and their legal adequacy. See United States v. Sampson, 371 U.S. 75, 78-80, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). Of course and likewise, courts may entertain motions that require it to answer only pure questions of law. See, e.g., Covington, 395 U.S. at 60, 89 S.Ct. 1559; Serfass v. United States, 420 U.S. 377, 382, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); see also Wright Leipold, supra, § 191, at 392-93. And, we have held, courts may entertain even motions to dismiss that require resort to facts outside the indictment and bearing on the general issue in the "limited circumstances" where "[1] the operative facts are undisputed and [2] the government fails to object to the district court's consideration of those undisputed facts," and [3] the district court can determine from them that, " as a matter of law, the government is incapable of proving its case beyond a reasonable doubt." United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994).
We have explained that dismissals under this latter rubric are the "rare exception." Id.; see also Todd, 446 F.3d at 1068. This is because they are "not made on account of a lack of evidence to support the government's case" or, put differently, the government's refusal to come forward with evidence to support its case in the face of a defendant who has presented his own proof. Todd, 446 F.3d at 1068. And this is because, again, the parties to a criminal proceeding have comparatively few obligations to present their evidence to their adversaries prior to trial; Rule 12 is not a parallel to civil summary judgment procedures. Instead, dismissals under the rubric we set forth in Hall can be had only when and "because undisputed evidence shows that, as a matter of law, the Defendant could not have committed the offense for which he was indicted." Todd 446 F.3d at 1068. The extra-indictment evidence thus must be undisputed in the sense that it is agreed to by the parties — neither side having expressed any objection to its consideration or any objection to its completeness and accuracy. Indeed, we have held even latent factual disputes over circumstances surrounding the commission of the alleged offense can sometimes prevent pretrial determination of a defense. See Reed, 114 F.3d at 1070 (rejecting the district court's pretrial determination of an as-applied challenge based upon a mere proffer of facts, even when the opposing party didn't object to that proffer). To warrant dismissal, it must be clear from the parties' agreed representations about the facts surrounding the commission of the alleged offense that a trial of the general issue would serve no purpose.
B
Applying these principles to the case before us confirms that Mr. Pope's motion to dismiss isn't one eligible for resolution before trial because it implicates the general issue and requires trial.
The parties have not identified any precedent in this court concerning the appropriate standard of appellate review for assessing a district court's Rule 12(b)(2) decision denying a pretrial motion to dismiss. Because it doesn't matter to the outcome of this case, we review this appeal de novo, the most favorable standard potentially available to Mr. Pope, and do so without holding that standard necessarily applicable to future disputes. As a matter of judicial restraint, we generally leave the resolution of questions of law to cases where they make a difference. See, e.g., Hydro Res., Inc. v. Envtl. Prot. Agency, 608 F.3d 1131, 1146 n. 10 (10th Cir. 2010) (en banc).
To begin, the general issue. Mr. Pope's motion doesn't seek dismissal on the basis of issues collateral to the question of his guilt or innocence. His is no motion based on a Speedy Trial Act violation or seeking the suppression of evidence, for example. Instead, Mr. Pope seeks to vindicate an affirmative defense bearing directly on his guilt or innocence, arguing that he cannot be guilty of the charged offense by dint of the Constitution's guarantees. Proving as much is the whole point of Mr. Pope's motion to dismiss. Furthermore, the "facts surrounding the commission of [Mr. Pope's] alleged offense," Covington, 395 U.S. at 60, 89 S.Ct. 1559, are hardly irrelevant to deciding his defense: the who, what, where, when, why, and how of his firearm possession will determine the validity of his as-applied challenge. He does not claim, after all, that § 922(g)(9) is facially unconstitutional on any set of facts, but instead claims only that it's unconstitutional as applied to his particular circumstances. In other words, he contends the statute is unconstitutional only in light of the "facts surrounding the commission of the alleged offense," Covington, 395 U.S. at 60, 89 S.Ct. 1559 — the very facts a court may not consider before trial.
Mr. Pope's motion likewise requires a trial of the general issue. This is because it does not rest on a pure question of law, the facts charged in the indictment itself, or agreed extra-indictment facts. Instead, Mr. Pope concedes that, to prevail on his motion, certain disputed facts outside the indictment must be found in his favor, facts that allegedly show he retained a gun only on his property and only to protect himself, others, or his home. We must ask whether he was threatened by the neighbor's dogs (as he alleges) or not (as the government contends). And we must ask whether he was seeking simply to protect himself, others, and his place of residence from dangerous dogs (as he suggests) or whether he also threatened to injure the dogs' owner and did so without provocation (as the government suggests). The resolution of these contested facts is essential to the resolution of his affirmative defense. In all these ways, Mr. Pope's affirmative defense implicates trial of the general issue. See United States v. La Cock, 366 F.3d 883, 889 (10th Cir. 2004) (holding that "a contested affirmative defense" generally "should be resolved at trial, not during a motion to dismiss the indictment").
This is not to say that affirmative defenses are categorically ineligible for pretrial resolution. Even among affirmative defenses that implicate the general issue of the defendant's guilt or innocence, not all require a trial of the general issue: some involve only a pure question of law and others implicate only facts found in the indictment or facts agreed to by the parties. See, e.g., United States v. Poulin, 588 F.Supp.2d 58, 61 (D.Me. 2008). At the same time, though, we must acknowledge, as many have before us, that many affirmative defenses do depend on the resolution of disputed facts bearing on the question of guilt or innocence. This is just another in a long line of cases recognizing as much. See, e.g., Knox, 396 U.S. at 83-84, 90 S.Ct. 363 (affirmative defense of duress must be determined at trial because it implicates trial of the general issue); Reed, 114 F.3d at 1070-71 (vagueness); United States v. Tafoya, 376 F.Supp.2d 1257, 1260 (D.N.M. 2005) (sufficiency of the evidence); La Cock, 366 F.3d at 889 (affirmative defense that device was not designed as a weapon within the meaning of the statute); Fadel, 844 F.2d at 1430-31 (entrapment); United States v. Doe, 63 F.3d 121, 125 (2d Cir. 1995) (affirmative defense that crime was committed as a public authority); Poulin, 588 F.Supp.2d at 60-62 (as-applied constitutional challenge).
To all this, Mr. Pope offers two replies meriting mention. First, he says, the government never objected to the district court's consideration of facts outside the indictment. Mr. Pope stresses that the government offered its own competing facts and, he suggests, this amounted to a "tacit[]" acquiescence to Mr. Pope's wish to look to facts outside the indictment. Reply Br. at 1. In fact, however, the government expressly noted that a motion challenging the indictment's ability to state a criminal violation should normally be decided "solely on the basis of the allegations made on [the indictment's] face, and such allegations are to be taken as true." R. Vol. I at 29 (quoting Hall, 20 F.3d at 1087); see also Gov't App. Br. at 27-28; supra Section I. The government then argued that it is a "rare exception" when facts outside the indictment may be considered; that this exception exists only when the motion is based on "undisputed facts" agreed to by the parties; and that this "exception is inapplicable here." R. Vol. I at 29 (quoting Hall, 20 F.3d at 1088); see also supra Section I. Plainly, the government did contest the district court's ability to resolve Mr. Pope's motion on the basis of facts outside his indictment. While the government proceeded to offer its own (disputed) extra-indictment facts and suggest that Mr. Pope's motion would also fail in light of them (something it again does on appeal), this only serves to highlight that Mr. Pope's motion lacks the sort of genuinely undisputed factual record that might render it amenable to pretrial resolution under Rule 12(b)(2).
Second, Mr. Pope submits that at least some of the extra-indictment facts he presented in connection with his motion to dismiss in the district court were agreed to by the parties, and he invites us to decide his case based on them. He says, for example, that it's agreed (1) he wasn't carrying the gun (only an ax handle) when he spoke to the owner of the dogs; (2) he possessed the gun only on the property where he was then living; and (3) his reason for carrying the gun was for the protection of himself and his property. But, as it happens, the government has actively disputed (3), never agreed to (2), and contested the significance of (1) and (2). The hard reality of the case for Mr. Pope is that the material facts that might shed light on whether his gun possession was really and only for the defense of self, others, or property are outside the indictment and fiercely disputed. In these circumstances, we can hardly say it was error for the district court to deny his pre-trial motion to dismiss.
On appeal, the government argues that the agreed extra-indictment facts actually undercut Mr. Pope's Second Amendment argument, pointing to certain (unhelpful to his cause) factual admissions Mr. Pope made in his plea agreement. Mr. Pope replies that the plea agreement came after the denial of his motion to dismiss, so the agreement's factual recitations were not "before the district court when it issued the order denying Mr. Pope's motion to dismiss the indictment," Reply Br. at 3; and, he argues, this court generally (if not always) confines its review of a district court's ruling to the materials that were before that court at the time of its decision. This dispute, however, makes no difference to our outcome: we need not and do not rest anything on the plea agreement or its recitation of facts in reaching our decision today.
Separately, Mr. Pope's motion for leave to withdraw his earlier motion to strike portions of the government's brief is granted. While Mr. Pope's motions were pending, the clerk's office permitted the government's brief to remain filed under seal. We now direct the clerk's office to lift the seal and make the government's brief part of the public record.
* * *
The district court's denial of Mr. Pope's motion to dismiss his indictment is
Affirmed.
d to this case seeking to insert themselves into the proceedings, in one instance by filing an uninvited amicus brief asserting a mass government conspiracy (docket entry 441), and in another by filing a "counterclaim" seeking $10 billion as well as certain records pertaining to the theft and sale of her grandchildren — records she claimed were taken from Defendant Rod Blagojevich's office in the course of the government's investigation (docket entry 376). Subsequently, this individual attempted to enter the courtroom against the Marshals' orders, became disruptive, and was eventually charged and convicted of contempt of court. As I iterated in my initial denial of the Press Intervenors' motion, the extraordinary attention being paid to this case leads not only to the expression of opinions, but also to the view that the trial is an opportunity to be noticed.
Also presented by the government is a sampling of cases in which jurors were exposed to unsolicited outside influence. These cases involved jurors receiving letters and threatening phone calls, and being followed and confronted by strangers (both out in public and, in one case, outside a juror's home).
Attached to Press Intervenors' initial motion to intervene is the affidavit of Matt O'Connor, an editor for the Courts/Metro section of the Chicago Tribune, in which he declares that in his more than 35 years of reporting, including 15 years of covering court proceedings in this courthouse, there has been a long history of "an open, public jury selection process, which includes public access to juror names in both routine and high profile cases." He further avers that he has personally routinely observed the names and hometowns of jurors stated in open court during voir dire, with rare exceptions usually in cases where the safety of the jurors was a concern. Press Intervenors also include copies of model jury instructions regarding various forms of electronic communication.
III. DISCUSSION
In moving to intervene, Press Intervenors argue that there exists at least a qualified right of access to the identities of impaneled jurors in a criminal case while the trial is pending. According to Press Intervenors, both the First Amendment and the common law mandate a presumption of public access to the jurors' names, and this presumptive right attaches no later then the swearing and impaneling of the jury. This presumption of openness may be overcome only by a showing that closure is necessary to "preserve higher values and is narrowly tailored to serve that interest." Only threats to jurors' safety or jury tampering may justify the withholding of the jurors' names, and Press Intervenors maintain that in this case no such evidence has been presented. The potential for unsolicited juror contact or the publishing of background stories about the jurors exists in every high-profile case, movants argue, but such hypothetical and generalized concerns are not enough to overcome the presumption that they assert exists. At the June 22nd hearing, Press Intervenors explained that obtaining the names once the jury is impaneled enables them not only to do human interest reporting on individual members, but also to protect the public and the judicial process by fulfilling a "watch-dog" role and exposing any problems with juror conduct. Also, Press Intervenors note that transparency is an interest in and of itself that is served by immediate disclosure.
In support of their argument, Press Intervenors rely primarily on Press-Enterprise Company v. Superior Court of California, 464 U.S. 501, 510 (1984), in which the Court recognized a rebuttable presumption, rooted in the First Amendment, that jury selection is a public process, and United States v. Wecht, 537 F.3d 222 (3d Cir. 2008), which extended this presumption to encompass the jurors' names. In Wecht, the Court vacated the district court's order restricting access to the jurors' names, finding that there is a presumptive First Amendment right of access to the names of both prospective and impaneled jurors and that there was insufficient evidence of threats or harassment to jurors to overcome the presumption.
In its opinion on appeal in this case, the Seventh Circuit rejected an absolute right of access to jurors' names. In finding a presumption in favor of disclosure, the Seventh Circuit declined to rely on the First Amendment, an approach embraced by Wecht Court. The Court noted that in this case, "[t]he right question is not whether names may be kept secret, or disclosure deferred, but what justifies such a decision." Blagojevich, 2010 WL 2778838, at *3 (7th Cir. 2010) (emphasis in original). The presumption in favor of disclosure, rooted in both the common law and the Jury Selection and Service Act, 28 U.S.C. §§ 1861-78, cannot be overcome without affording the parties an opportunity to present evidence. Id. at *5. Only then, held the Court, can the trial judge make findings of fact, address the interests at stake, and discuss alternatives to closure. Id. Barring some "unusual risk," jurors' names must be disclosed. Id.
I note that I am not persuaded by the majority's opinion in Wecht, and I agree with the Seventh Circuit that Wecht is not dispositive in this case. However, even if the Wecht analysis is correct, and there is a First Amendment right of access to juror names, this case can be distinguished from Wecht in two important ways. First, the names of the jurors in this case will be made public once the verdict is entered, whereas in Wecht, the district court gave no indication that the names would be made available at any time after the trial. 537 F.3d at 230. Second, in this case, there is evidence that outside forces may attempt to influence jurors or at the very least that unsolicited contact is a real possibility. I relied on this evidence in making my initial ruling and continue to rely on it here. Although in Wecht the district court referred to certain threats made by the defendant to non-jurors, it included no finding of fact about them in the record and declined to rely on them in deciding to impanel an anonymous jury. Id. at 241, n. 35. Therefore, even if the Wecht approach is correct, the facts and evidence in this case elevate concerns of improper jury contact beyond hypothetical and generic, and are sufficient to overcome any First Amendment presumption of openness that might exist.
The Seventh Circuit's holding has not been heretofore delineated, and establishes requirements that had not been clearly enunciated in this circuit.
I am bound by the Seventh Circuit's holding on appeal, and therefore begin my analysis with a presumption that the names of the jurors in this case should be disclosed. Improper contact with a juror during the course of a trial is governed by a presumption as well; such contact is presumptively prejudicial to the defendant. United States v. Harbin, 250 F.3d 532, 544 (7th Cir. 2001) (citing Remmer v. United States, 347 U.S. 227, 229 (1954)). Attempts to communicate with a juror, even if heartfelt and impartial, pose a danger to the rights of the person on trial and his opponent are discouraged. Actions which have a significant potential of intimidating jurors or disturbing their tranquility to the point that they lose the ability to rationally consider the evidence or follow instructions are also to be discouraged.
That such actions can and do occur is undisputed. But the simple fact that this conduct might occur does not justify any level of juror anonymity. There must be a significant risk that the conduct will occur in order to overcome the presumption. In this case, such a risk exists, and the presumption of openness is overcome.
I note here that I am not dealing with considerations that justify a fully anonymous jury.
There is precedent in this district for deferred disclosure of juror names. In United States v. Black, 483 F. Supp. 2d 618 (N.D. Ill. 2007), another high-profile criminal prosecution in this district, Judge St. Eve deferred release of the jurors' names. She found no right of access under the First Amendment, but noted that even if such a right exists, releasing juror names during the pendency of the trial posed an unnecessary threat to the defendant's Sixth Amendment rights. In considering the effects of disclosure, Judge St. Eve rightly found a "risk that, during the course of the trial, jurors will be subjected to improper and presumptively prejudicial contact." Id. at 630-31 (citing Sheppard v. Maxwell, 384 U.S. 333, 362 (1966); United States v. Koubriti, 252 F. Supp. 2d 418, 422 (E.D. Mich. 2003); United States v. Warner, Nos. 02 CR 506-1, 02 CR 506-4, 2006 WL 2583722, **49-51 (N.D. Ill. Sept. 7, 2006)). Also present was the potential transformation of "jurors' personal lives into public news" which, may "unnecessarily interfere with the jurors' ability or willingness to perform their sworn duties." Id. (citing In re Globe Newspaper Co., 920 F.2d 88, 95 (1st Cir. 1990); United States v. Brown, 250 F.3d 907, 918 (5th Cir. 2001)). Although she discussed no evidence of either risk, Judge St. Eve found that these concerns "counsel in favor of prohibiting access to juror names during the pendency of trial," notwithstanding any First Amendment right of access that might exist.
In Black, as here, the parties knew the identities of the twelve jurors and six alternates, and voir dire proceedings were open to the media and members of the public. 483 F. Supp. 2d at 624. While the Seventh Circuit seems to overrule, at least partly, Judge St. Eve's ruling rejecting a presumption in favor of disclosing the jurors' names, it does appear to endorse Judge St. Eve's approach to deferred disclosure.
Here, not only do the same risks exist, but there is evidence that if jurors' names are made public, they will be subjected to improper outside contact. It is true that the possibility of jurors being inappropriately contacted by phone is not a new one, but the possibility of contact by e-mail or through social networking sites is relatively recent, and the ubiquity of these media is astounding. I have already received several communications by e-mail, telephone and in writing. All of these communications are clearly an attempt to somehow influence the decision maker in this case. Although the voice mails and forged letter are clearly the work of "cranks and gadflies," (as they are referred to by Press Intervenors), they would most likely be distressing to a juror who receives them. A parade of insults from a stranger, while perhaps less startling to a judge, is no doubt alarming to most people. Another caller insisted that he be allowed to express his view of the trial thus far to me in the courtroom at the end of the day's proceedings, and yet another e-mail received only days ago, explains that its author, the King of Japan, was told by Defendant Rod Blagojevich that the defendant would pay him $200,000. While some may be quick to discount a conspiracy theorist and forger, it is highly likely that a juror would be disturbed that such people have been able to obtain their personal contact information. It is easy to see how contact like this could interfere with a jurors' ability to perform his sworn duties. Furthermore, one must bear in mind that when such communication is made, and it is clear that third parties have access to a juror's contact information, that juror's concern may extend unitl well after the trial is over, when he is no longer under the watchful eye of the court.
In addition to the receipt of unsolicited communications, I have been approached in person by a member of the public expressing an opinion on this case, and there have been two unauthorized filings by unrelated parties, one of whom had to be removed by the U.S. Marshals and was later charged for her conduct. While such conduct may certainly occur in any high-profile case, the fact that it has already occurred in this case raises more than the spectre that prejudicial contact with jurors might well occur.
Perhaps more problematic than the contacts from "cranks and gadflies" are the well-reasoned and articulate e-mails I have received which are clearly attempts to persuade me and influence my decision-making. Such communications seem to be an example of the prevailing public view that individuals should express their views regardless of their knowledge or skill. There is little emphasis today in media or entertainment on the notion of withholding judgment until all the facts are in. "I think, therefore I am," a precept of Western philosophy, seems to have been supplanted by "I feel, therefore I opine."
See, e.g., "What Are Your Ideas for How to Stop the Spill?" a CNN.com online survey inviting readers' ideas on how to stop the massive BP oil spill that occurred in April 2010, located at http://ac360.blogs.cnn.com/2010/06/09/what-are-your-ideas-for-how-to-stop-the-spill/ (visited July 23, 2010).
See, e.g., "Poll — van der Sloot, Guilty or Innocent?" NEWSVINE.COM, http://myview-222.newsvine.com/_news/2010/06/03/4459727-poll-van-der-sloot-guilty-or-innocent (visited June 23, 2010); "CNN Viewers: Williams `Guilty' In Atlanta Child Murders," CNN.COM, http://www.cnn.com/2010/CRIME/06/11/atlanta.murders.poll.ireport/index.html?iref=allsearch (visited July 23, 2010); and "FOX News Poll: Majority Says O.J. Simpson Guilty of Robbery," FOXNEWS.COM, http://www.foxnews.com/story/0,2933,298304,00.html (visited June 23, 2010), and most pointedly, "Poll: Blagojevich Winning (Sort of) with Dems," CHICAGO NEWS COOPERATIVE, http://www.chicagonewscoop.org/poll-blagojevich-winning-sort-of-with-dems/ (visited June 23, 2010), in which it is reported that an Illinois poll conducted one week into the trial revealed that "68 percent of Republicans saying Blagojevich should be convicted and sent off to prison, compared to only 44 percent of Democrats."
Also apparent in contemporary media is that the request for individual expression seems to revolve entirely on highly publicized events. There seem to be few requests for public input on more obscure issues such as arms treaties and city parks, as well as other topics that have transited quickly across the public horizon. The events on which members of the public are invited and encouraged to opine are those currently in the news. It is undisputed that this case has received intense media coverage, and it is reasonable to infer that this coverage is one underlying cause for the many communications I have thus far received. Another factor unique to this case is the personal interest of the voters in the outcome of the proceedings. Nearly 3.5 million citizens of this state voted in the 2006 gubernatorial election in which Defendant Rod Blagojevich won his second term in office. A reading of public comments on news stories about the trial demonstrates, at least anecdotally, that many voters have a personal opinion that either Defendant Rod Blagojevich had betrayed their trust, or that the government has unfairly deprived them of their governor.
See supra, n. 14.
The only case in my personal experience that could be comparable was People v. Richard Speck, and that case was in the news for months not years, and generated far less information than this case, demonstrating that the term "high-profile" can be used to describe varying degrees of publicity. Furthermore, Speck, just as in many high profile cases, involved a defendant accused of doing bad things to a certain few people. This case, in contrast, presents allegations that implicate the personal interests of all the residents (and especially voters) of this state.
See, e.g., http://discussions.chicagotribune.com/20/chinews/ct-met-blagojevich-trial-0709-20100708/10 (visited July 23, 2010); http://discussions.chicagotribune.com/20/chinews/ct-met-blagojevich-0707-20100706/10 (visited July 23, 2010); http://discussions.chicagotribune.com/20/chinews/ct-met-blagojevich-trial-0722-20100721/10 (visited July 23, 2010).
Press Intervenors argue that there is no "unusual risk" in this case that would justify the deferred disclosure of juror names. They cite to several comments I have made including comments that indicate that certain forms of outside influence "are all problems we've dealt with before," and that the receipt of certain communications by judges is not uncommon. According to the Press Intervenors, these comments reveal that the situation currently before me is in no way exceptional. They argue: "There have always been cranks and gadflies that will send letters or stand up in the courtroom and tell the jury what to do." However, just because such issues have arisen in the past does not mean that they cannot justify deferred disclosure, that they are not "unusual" in the context of the dozens of trials held in this courthouse each year. Courts everywhere have dealt with the threat of prejudicial contact in high profile cases — sometimes by deferred disclosure, see, e.g., In re Globe Newspaper Co., 920 F.2d 88, 91 (1st Cir. 1990), by anonymity, see, e.g., United States v. Calabrese, 515 F. Supp. 2d 880 (N.D. Ill. 2007); by sequestration, or by special instruction.
Press Intervenors maintain that the fact that "cranks and gadflies" may now reach jurors by e-mail and phone "is a difference of degree, not of kind" and should not overcome the presumption of openness. But it is a difference in kind. A person standing up in court attempting to make his voice heard is not the same as a "gadfly" appearing at a juror's home, calling him on the phone, or bombarding him with e-mails. Such invasions of privacy by strangers — whether a harmless "gadfly" or "crank," a person who is out of touch with reality, or a well-informed opinionated citizen who might typically write a letter to the editor — can lead to, at worst, fear and intimidation on the part of the juror, or, at least, a preoccupation by what is being said about them in the media (assuming their names have been made public).
Press Intervenors cite United States v. Antar, 38 F.3d 1348, 1363 (3d Cir. 1994) for the proposition that threats to the deliberative process must be "actual and specific, not conclusory and generic[,]" and the court "must articulate findings of the actual expectation of an unwarranted intrusion upon deliberations or of a probability of harassment of jurors." Such threats are real in this case, and not generic or ordinary. In the months leading up to trial, through to July 20, 2010 (two days before this hearing), I have received numerous communications by e-mail, phone, letter, and in person. At least one communication has bordered on threatening (and is certainly harassing), others have expressed a wide variety of opinions on both the Defendants' guilt or innocence as well as evidence presented, and still others have alleged certain unverified (and often incredible) facts in connection with this case. Furthermore, the government has presented instances in which jurors in other publicized cases have been pestered by letter, phone, package delivery, and in person. Press Intervenors discount these accounts because none of these incidents has resulted in a mistrial based solely on the outside communications. Essentially, Press Intervenors argue that any threat of prejudicial contact is "speculative" until a juror on this case actually receives a harassing phone call, letter, electronic post or visit from a third party which would result in a mistrial. This basically requires me to wait for the prejudicial contact to occur before I can evaluate the threat that it might occur. I do not believe that this is what the Court of Appeals had in mind. Moreover, in order to "test" the likely possibility that harassment would occur in the way that Press Intervenors suggest, I would have to release the names, thereby precluding any possibility of protecting the jurors identities down the road. Again, I do not think this is what was contemplated by the Seventh Circuit or the common law tradition on which its opinion is founded. The common-law tradition and applicable statute make it clear that judges may take preventative measures where justice requires. Blagojevich, 2010 WL 2778838, at *5.
Press Intervenors' evidence in this matter is telling in that it helps to demonstrate the unique nature of this case. As reflected by the declaration of Matt O'Connor, I and other judges have released the names of jurors in most cases, even in many high-profile cases. Deferred disclosure is not justified in every criminal case, nor even in every high-profile criminal case. Id. at *7. However, the case before me is not a typical example of even the relatively small number of high-profile cases. It is a case of intense media scrutiny and involves a colorful Defendant who has, since the day of his arrest, thrust himself and the question of his guilt in the spotlight. He has consistently, publicly commented on potential evidence in this case and what it would show, inviting the views of the court of public opinion. He maintains a Twitter account urging members of the public to follow along for updates and asserts "I am innocent and look forward to clearing my name." See http://twitter.com/governorrod (visited July 23, 2010). For a person of his public stature this is exceptional conduct. Persons well known for their activities in business, politics, sports and entertainment overwhelmingly either avoid the public or let attorneys or publicists issue generic statements on their behalf.
Included in O'Connor's list is the corruption trial of former Chicago Heights mayor Charles Panici, No. 92 CR 213, a case over which I presided and in which the juror names were publicly disclosed. The amount of publicity received in these two cases is incomparable.
See, e.g., "Blagojevich Wants Tapes Played In Court," NEW YORK TIMES (Feb. 10, 2010), at http://www.nytimes.com/2010/02/11/us/11blago.html (visited July 23, 2010); and On the Record with Greta "Blago: `President Obama Could Help Prove My Innocence,'" FOXNEWS.COM (April 27, 2010) at http://www.foxnews.com/story/0,2933,591562,00.html (visited July 23, 2010).
While, unlike Kevin Trudeau, Defendant Rod Blagojevich has not instructed his devoted supporters to bombard the court with e-mails proclaiming his innocence, the substance of his media appearances does enhance the risk of improper contact with jurors in this case. See F.T.C. v. Trudeau, 606 F.3d 382, 384 (7th Cir. 2010).
In addition to the risks of disclosure to the public, the press' investigation itself also presents significant risks that the jurors will be distracted and unable to fulfill their sworn duties, and that such investigation would "undermine the jurors' ability to adhere to the Court's repeated instructions not to read, watch, or listen to any media coverage regarding this case." Black, 483 F. Supp. 2d at 631. Although the law recognizes only limited circumstances in which an individual right of privacy is actionable against the media, jurors may well feel a sense of invasion that accompanies a personal investigation, and knowledge that the media is conducting such an investigation carries a significant risk that jurors will not be able to function effectively. At the very least, jurors whose lives are thrust into the media spotlight will be curious and tempted to seek out media coverage of them personally.
Also, potentially disturbing to jurors is an investigation which involves interviews of friends, family, neighbors and co-workers; however, I doubt this is a major concern in this case because the media has not, to my knowledge, sent cameras to jurors' homes or investigators to interview friends and neighbors, nor does it appear that such tactics were employed in the jury investigation connected with the trial of former Governor George Ryan. United States v. Warner, No. 02 CR 506, 2006 WL 2931903 (N.D. Ill. Oct. 13, 2006); United States v. Warner, 498 F.3d 666 (7th Cir. 2007). However, a consistent pattern of such conduct by the press might justify preventive actions by the trial judge. I do note, however, that Press Intervenors in this case have not committed to conducting a non-intrusive investigation, and, were I in their shoes, I would likely refrain from doing so as well even if the intervenors were able to state (I think, truthfully here) that they have not engaged in such practices. The Press Intervenors do not speak for or represent all media.
In addition to the general risks of disclosure, disclosure at this point in the trial poses additional hazards. In this case, all of the potential jurors were informed on the afternoon of June 2, 2010 that their names would be disclosed only at the end of the trial. As Judge Posner points out in his dissent from the denial of a rehearing en banc, were I to renege on this promise now "the jurors may well be upset, concerned for their privacy, fearful of the prospect of harassment . . . and angry at having been induced by false pretenses to agree to take months out of their life to perform jury service." United States v. Blagojevich, ___ F.3d ___, 2010 WL 2767760, at *2 (July 14, 2010). Such reactions are likely to interfere with the jurors' ability to perform their duties.
Of further concern in releasing the names at this point is the possible impairment of judicial authority. As I explained in my July 13, 2010 order in this matter, the judge is the neutral in an adversary system. Jurors see the judge as a protector and arbiter of fairness and civility. For the judge to revoke his or her assurance that the jurors' privacy would be protected could result in a sense of distrust and lend a sense of illegitimacy to the process and the judge's role. In a case with divergent views about which arguments are legitimate, some of which have already played out in the presence of the jury, there is an unacceptable risk that one or more jurors might doubt the reliability of the instructions I give them.
A final issue is the question of which twelve names should be released. This jury panel consists of twelve members who will deliberate and reach a verdict, and six (now five) alternates who will not participate in the deliberations. In a case such as this, where disclosing the jurors' names poses substantial risks of improper contact, a purely theoretical option would be to release only the names of twelve of the jurors, thereby preserving the temporary anonymity of and reducing the risk of contact to the alternates. We do not know and cannot know exactly which twelve jurors will decide the Defendants' fate, and there have certainly been instances where jurors have been excused from service and replaced by an alternate even during deliberations. Furthermore, the jurors themselves do not know at this point who has been designated as an alternate (a common practice) and this enables them each to remain engaged throughout the trial. To speculate publicly as to which twelve jurors will deliberate may not only turn out to be inaccurate, but may also affect the focus and engagement of those who think they will not be participating in the deliberations.
I note that I have already excused one juror due to illness in the family. At this time, the jury panel consists of seventeen members, the jury consists of twelve members.
The amount of media attention in this case, the personal connection of the voters to one of the defendants, the public statements and appearances of Defendant Rod Blagojevich, and the number and quality of communications I have received lead to my judgment that the unusual risks associated with releasing the jurors' names during trial overcome the presumption of disclosure. Compounding these general risks of disclosure are the risks specific to this case, which stem from the fact that jurors were told at the start of selection that their names would be withheld until after a verdict is entered.
The fact that the presumption has been overcome does not necessarily justify withholding the jurors' names if there is some lesser way to prevent the harm I have discussed.
While there exist in theory some alternatives to deferred disclosure, many of these alternatives would no doubt impose significant hardship on members of the jury. One alternative would be to instruct jurors not to answer calls, listen to voice mails, or open e-mails and letters from numbers and addresses they do not recognize and to change their privacy settings on all social networking sites. Or, similarly, jurors could be required to surrender their cell phones and computers. While this may reduce the potential for receiving unsolicited contact, it would certainly make life unnecessarily difficult, especially for those jurors who are employed and must conduct their work by phone and e-mail during their lunch breaks, evenings and days off from jury service. Moreover, as Judge St. Eve pointed out in Black, "public reports discussing the jurors' specific identities (or other personal information about the jurors) also would undermine the jurors' ability to adhere to the Court's repeated instructions not to read, watch, or listen to any media coverage regarding this case." 483 F. Supp. 2d at 631. An instruction not to answer calls or correspondences from those who appear to be strangers does nothing to address this problem.
Another related option would be for court-appointed staff to set up a system whereby all jurors' e-mails and electronic communications would be screened prior to opening; however, this is not only burdensome to both the jurors and the court, but it is also intrusive and difficult to execute in terms of determining who approved contacts are and how they might change over the course of the trial.
Press Intervenors note the presumption that juries will obey the Court's instructions in support of their argument that instructions prohibiting the use of certain electronic communication will suffice to minimize the risk of prejudicial contact. See, e.g., Jonasson v. Lutheran Child Family Servs., 115 F.3d 436, 439 (7th Cir. 1997); Jones v. Lincoln Elec. Co., 188 F.3d 709, 732 (7th Cir. 1999). But, in this case, I cannot rely solely on instructions. First, much of my concern lies not with the conduct of the jurors, but with that of outsiders. I have little doubt that the jurors in this case would do their best to follow the instruction to alert the court or its staff to any contact from outsiders, but it is that contact itself that concerns me. Instructions will not curtail such contact. Furthermore, Press Intervenors seem to brush aside concerns that my judicial authority would be undermined and my ability to bind jurors to instructions impaired were I to renege on my promise to the jurors of deferred disclosure. However, these issues must be addressed.
First, the presumption that jurors will follow instructions is certainly rebuttable, and reneging on a promise involving the revelation of jurors' identities during the trial may certainly be enough to overcome that presumption. See Bruton v. United States, 391 U.S. 123, 135 (1968) (noting that "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.").
Second, Press Intervenors seem to give great weight to the presumption that jurors will follow instructions, but little weight to the presumption that a juror will be truthful (even if mistaken or inaccurate) during voir dire and in the questionnaires. See United States v. Huguenin, 950 F.2d 23, 30 (1st Cir. 1991) (agreeing with the Fifth and Sixth Circuits that there is a presumption that veniremen tell the truth on voir dire, even in response to "sensitive and potentially embarrassing questions.") (citations omitted). This makes little sense, and Press Intervenors fail to make clear why one presumption should be given more weight than another, especially in light of the fact that release of the jurors' names at this time might well distract or disturb jurors to a point where they may be unable or unwilling to follow instructions.
Sequestration at this point during the trial would also result in significant hardship on the jurors. As the Seventh Circuit seemed to acknowledge in its opinion, sequestration generally is an extreme alternative. Blagojevich, 2010 WL 2778838, at *5-6. At the time I expressed my views about deferred disclosure (on June 1, 2009 and May 17, 2010), the trial was expected to last anywhere from twelve to sixteen weeks. A three-to-four-month period of sequestration might be unduly burdensome on individual jurors, and the possibility of sequestration would have created a serious risk that the jury pool would have been significantly depleted. In addition, the recent long-term sequestration in People v. Simpson, demonstrates its undesirability for such a length of time as well as the profound disservice to those involved. Furthermore, ordering sequestration midway through a trial would be even more burdensome and inappropriate where the jury was never advised of the possibility to begin with. Jurors would need to find child and elder care solutions (five jurors have school-age children and two of those jurors have children under the age of 5), make arrangements with spouses and family, and address work issues all within a matter of days. They would be plucked from their lives for a substantial period of time,
The issue of sequestration is discussed in Mary Strauss's article Sequestration, 24 Am. J. Crim. L. 63 (1996). There, Strauss examines the costs and benefits of sequestration generally and also in the context of the nine-month O.J. Simpson trial. Aside from the great financial costs of sequestration, Strauss discusses the significant psychological effects of long-term sequestration, as well as the threat it poses to the judicial process. Among those dangers are: (1) the possibility of impaneling a non-representative jury; (2) a jury's "rush to judgment" during deliberations; and (3) unfair alignment with one side. Id. at 106-16. To their credit, Press Intervenors do not appear to urge sequestration here.
the duration of which no one can be sure. The jurors in this case were never warned that sequestration was an option, and had they known, at least some of them might have sought to be excused on the basis that such an arrangement would result in undue hardship. To impose this alternative on them now would be unthinkable.
Compounding the hardship would be the change in schedule that would most likely accompany a decision to sequester. Customarily, trials in which the jury is sequestered are held five or five and a half days a week.
Another alternative addressed at trial was the possibility of releasing the jurors' names to the movants on the condition that they refrain from contacting the jurors and from publishing their names prior to verdict. The Chicago Tribune has declined to pursue this option. Notwithstanding its usual practice not to publish juror names prior to verdict, the Tribune is "reluctant to enter into such an agreement that would restrict [its] freedom to publish potentially newsworthy material." I understand this view, find it to be a reasonable one, and would most likely hold the same view were I the movant in this case.
Because alternative methods of protecting the jurors from improper contact are not satisfactory, I find that the jurors' names should not be made public prior to the entry of a verdict. There is little precedent involving the unique circumstances surrounding this case, and it is set against a relatively new backdrop of public openness via blogs, electronic communication, and social networking sites. As a result, there is, I think, some degree of judgment necessary to determine the best way to protect the legitimate interests put forth by both sides. Of the interests cited by Press Intervenors, both human interest reporting and juror investigations can be conducted once the names are released at the end of the trial. Any issues raised by juror investigations can be addressed and remedied even after the trial is over. However, the risks that jurors will be improperly contacted, or may be unable to perform their sworn duties either due to stress, distraction, or a lack of trust in my instruction implicate far weightier public interests in this case than the interest of the Intervenors in pre-verdict rather than post-verdict revelation of jurors' names. Under these circumstances, the danger of a mistrial resulting from juror misconduct is less likely than the possibility of prejudice to Defendants or the United States resulting from outside contact or other risks I have discussed. With all this in mind, I find that deferred disclosure would be the most effective and least-burdensome way to protect Defendants' interests in a jury free from improper influence and confident in the given instructions and stature of the judge, as well as the public's interest in a fair judicial process.
IV. CONCLUSION
For the foregoing reasons, Press Intervenors' motion for immediate public access to jurors' names during this criminal trial is denied, and the government's motion to limit public release of juror names is granted. Jurors' names will be made public after a verdict is returned.
Exhibit 1
Voicemail received 4/21/2010 9:37 PM
From 773 727 4829
Fuck you, Judge Zagel. You fucking arrogant bitch ass mother fucker. Fuck you, fuck you, James B. Zagel. Fuck you.
Exhibit 2
THE WHITE HOUSE WASHINGTON MAY 27, 2010
Dear friend Judge Zagel:
This is a notice of my president executive powers. I'm giving notice that the Rod Blagojevich trial will be dismissed without further proceedings. Case is Permanently closed. That is my executive order, and a non-changeable order at that.
Sincerely, _______________________ Signature of Barack Obama
Graph
Exhibit 3
Received 6/23/2010 8:52 AM
From 863 701 5126
Hello, Judge Zagel?
This is a woman named Jeanette Blar(sp?), and I just wanted to let you know that the federal government has developed a new kind of electronic where they can copy exactly the voice of someone and then pretend that they are that person. And they developed it, I don't know if they used it on Ron Bagelvich, but I'll always wonder if he's guilty or not. So, if you want to, give me a call at area code 863 701 5126.
Exhibit 4
TELEPHONE CALL DETAILS
Monday, July 19
Call to 312 435 5713
Between 2:00 — 4:00 p.m.
Caller number (trunk) 1325-xx
The male caller began asking general questions about how he could observe the trial. He asked questions about getting in and if the public is allowed entry to the courtroom. He also asked if he could speak up at the end of the trial day. I explained that only the Judge, lawyers and defendants are allowed to speak in the courtroom. He asked his question about speaking up in a few different ways. He was surprised at my answer, even asked me if I was sure about it. He assumed he could have a chance to comment in court. He said that he thought the Judge was unfair with Blagojevich, and he should be allowed to play all or more of the tapes in court.
The caller had an Eastern European accent, and his demeanor was excited and slightly agitated. I suspected that he might have been in the courthouse when he called, but I have no evidence of that.
I believe that the same caller had called previously (on another day). It was a brief call, and the caller ranted about the unfairness of the tapes, but was not specific or clear about his reason for calling.
Exhibit 5
July 20, 2010
To: ALL THE JUDGES
FROM: IAM (SELENA ERIKA NICHOLE WILSON) Chief Judge James F. Holderman Judge Wayne R. Andersen Judge Virginia M. Kendall Magistrate Judge Martin C, Ashman Judge Matthew F. Kennelly Judge Marvin E. Aspen Magistrate Judge Arlander Keys Magistrate Judge Geraldine Soat Brown Magistrate Judge Young B. Kim Judge Elaine E. Bucklo Judge Charles P. Kocoras Judge Ruben Castillo Judge Joan Humphrey Lefkow Judge David H. Coar Judge Harry D. Leinenweber Magistrate Judge Jeffrey Cole Judge George W. Lindberg Judge Suzanne B. Conlon Magistrate Judge P. Michael Mahoney Magistrate Judge Susan E. Cox Judge Blanche M. Manning Judge John W. Darrah Judge George M. Marovich Magistrate Judge Morton Denlow Magistrate Judge Michael T. Mason Judge Samuel Der-Yeghiayan Magistrate Judge Nan R. Nolan Judge Robert M. Dow Jr. Judge John A. Nordberg Magistrate Judge Sheila Finnegan Judge Charles R. Norgle, Sr. Judge Robert W. Gettleman Judge Rebecca R. Pallmeyer Magistrate Judge Jeffrey T. Gilbert Judge Philip G. Reinhard Judge Joan B. Gottschall Presiding Magistrate Judge Sidney I. Schenkier Judge John F. Grady Judge Milton I. Shadur Judge Ronald A. Guzman Judge Amy J. St. Eve Judge William T. Hart Magistrate Judge Maria Valdez Judge William J. Hibbler Judge James B. Zagel Judge Frederick J. Kapala Judge Wayne R. Andersen Judge Virginia M. Kendall Judge Marvin E. Aspen Judge Matthew F. Kennelly Judge Elaine E. Bucklo Judge Charles P. Kocoras Judge Ruben Castillo Judge Joan Humphrey Lefkow Judge David H. Coar Judge Harry D. Lelnenweber Judge Suzanne B. Conlon Judge George W. Lindberg Judge John W. Darrah Judge Blanche M. Manning Judge Samuel Der-Yeghlayan Judge George M. Marovich Judge Robert M. Dow Jr. Judge John A. Nordberg Judge Robert W. Gettleman Judge Charles R. Norgle, Sr. Judge Joan B. Gottschall Judge Rebecca R. Pallmeyer Judge John F. Grady Judge Philip G. Reinhard Judge Ronald A. Guzman Judge Milton I. Shadur Judge William T. Hart Judge Amy J. St. Eve Judge William J. Hibbler Judge James B. Zagel Judge Frederick J. Kapala Judge Martin C. Ashman Judge Arlander Keys Judge Geraldine Soat Brown Judge Young B. Kim Judge Jeffrey Cole Judge P. Michael Mahoney Judge Susan E. Cox Judge Michael T. Mason Judge Morton Denlow Judge Nan R. Nolan Judge Sheila Finnegan Judge Maria Valdez Judge Jeffrey T. Gilbert Dear Judges,
I want to apologize to you for having to write to you all. I have a judge I think by Blagojevich however I don't have your name. I am IAM, I am King of Japan and are eager to get to my home and places. I use (Selena Erika Nichole Wilson) for law. I am in Municipal, Civil, and State law in which is ward I think.
I am told by Gov. Rod Blagojevich to go to the office on Randolph at the Thomson building and get my envelope, he told me what's inside it's my check for the amount 200,000 dollars. I went there and have asked, and even recently last week I went there and I called, but I was only told no there wasn't any thing for me and also to call back.
Blagojcvich told me to leave as soon as the incident happened. An incident that has high security going on with it. I tried to get my envelope, however it wasn't there when I went to pick it up. Another thing judge I am a King as 1 mentioned above and are ignored by the people that I have to rent from I let them know I am a king and they ignored me and my writing. I learned in school they are not suppose to. I am a paralegal student at Robert Morris. I learned King and Heir and civil in King Law. I learned who and how to write also, I learned other things and am trying to practice, however I am blocked from normal living.
I have to go walk around and travel in other ways with a lot of people connected to my head and vision, although I am ok, I want it to stop. They talk to each other while using me and they interrupt my company, I have someone to be with and it isn't right that he has to be with me under these conditions. Now judge, I have learned that I will bave an operation that can get rid of the whole thing but as for now I am bothered with individuals commenting on who I am with, what I vision at times, routs I should take, are interrupted so that these people can have me there way and other things.
I don't know all the individuals and have reported, the numbers are HR494594 to CPD officer Moser.
I haven't heard any thing from him but this is right and I understand. Back to Blagojevich, I want my money (the envelope he told me about) to leave please, so may I have court to pick it up please.
Sincerely
________________________________ Signature of Selena Erika Nochole Wilson
IAM (Selena Erika Nichole Wilson)
PO BOX 12714 Seattle Washington 98111
PO BOX 53470 Chicago Illinois 60653
Number 206-255-0619