Judge's Statement

Order Form (01/2005)

Judge Zagel Sitting Judge if Other08 CR 888 DATE April 14, 2010


United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

than Assigned Judge






Motion by Sun Times Media LLC, Associated Press, and Chicago Tribune Company to intervene and for

immediate access to the Santiago proffer filed under seal (295) is granted.


I have examined written submissions respecting the pretrial proffer of evidence in support of the

prosecution's representation that there is enough evidence of the existence of a conspiracy that admission of

alleged co-conspirators' statements is warranted under a well-known exception to the rule against hearsay

evidence. See Fed. R. Civ. P. 801(d)(2)(E), and United States v. Santiago, 582 F.2d 1128 (7th Cir. 1987).

The proffer was filed under seal so that objections to its public disclosure could be made. The two defendants

have filed papers urging redactions. The redactions sought would cover those portions of the proffer that, it is

represented by the prosecution, contain transcriptions of excerpts of certain recorded conversations. The

rationale for the redactions are two. The first is that the inclusion of a part of the recording (rather than all the

recording) could give the public an incorrect impression of the evidence. The second is that release of a

printed excerpt within forty-eight days of the start of trial proceedings could contaminate the jury pool. There

is no challenge to the accuracy of the written transcription of the recordings.

In order to determine whether the preconditions for admission of the alleged co-conspirators'

statements are met, it is necessary for me to consider the transcriptions, so the substance of the statements

will be considered by me in ruling whether the preliminary showing of admissibility has been made.

Redaction of material which is not considered in reaching a decision is generally permissible on a variety of

grounds. Indeed the rules provide for striking certain kinds of material.

Redaction, in cases where the redacted words are relevant to the case and considered in reaching a

decision, is still permitted but discouraged. See In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992) ("Information

that is used at trial or otherwise become the basis of decision enters the public record.") (citation omitted).

The case for redaction has to be proven not presumed. It is not proven here. If the excerpt of a conversation

would have a different meaning if more of the conversation were to be reproduced, the defendants here can

reproduce it if either believes that the additional language would help defeat the claim of admissibility made

by the prosecution. They too may make preliminary filings under seal and suggest redactions if either

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believes such redactions are justified under law. But it is clear that the remedy to the objection that a portion

of a statement may be misleading to the public (and the jury pool) is not redaction but disclosure of the

omitted portion. This is true as well when the objection is not that some words had been edited out but rather

that another conversation diminishes or destroys the prosecutorial value of the words cited by the


Disclosure of written material a month and a half before the beginning of trial does not come close to

presenting a significant threat that a fair jury cannot be found. The experience of the courts in cases which

attract significant news coverage has shown that pretrial news reporting is an overstated menace to fair jury


The kind of person who would qualify as a juror even includes, as the Supreme Court has said, a

person who has an opinion of the guilt or innocence of the accused so long as that person can put aside that

opinion and decide the case on the evidence presented in the courtroom. See Irvin v. Dowd, 366 U.S. 717,

722-23 (1961). This rule should come as no surprise. Few of us have gone through life without often

discovering that which we firmly believed to be true was in fact false. Those who do have firm opinions that

cannot be set aside are usually honest enough to say so. The convinced partisan who denies bias in order to

serve on a jury is, ordinarily, seen by court and counsel for what he or she is. More importantly, most people

do not retain detailed knowledge of what they read in newspapers or what they hear and see in electronic

media. Part of this stems from the sheer volume of media today. Part of it stems from the fact that what is

reported seldom has a direct bearing on the lives of those who hear it. It may be interesting to find out that

large non-native snakes have been found in the Everglades, but it is not important to the vast majority of

Americans, and this is why such stories are not endlessly repeated. There is no urgent need to retain much of

what the media reports.

The events which are the subject of this case are not those which make a lasting impression on the

mind of readers. The words in papers and magazines and the words read by an anchor on radio or television

will not be retained in significant detail by members of the public.1 I expect that many members of the jury

pool will have an impression about the case to be tried. Many have such impressions even now. I do not

expect that the printed words in the proffer reprinted or read aloud by news readers will affect the ability of a

significant number of potential jurors to comply fully with the rule that they must decide the case on the basis

of the evidence heard in court without any reliance on whatever they remember that they read in or saw on the


For the foregoing reasons, the motion by Sun Times Media LLC, Associated Press, and Chicago

Tribune Company to intervene and for immediate access to the Santiago proffer filed under seal is granted.

1 I do not consider here whether a different standard should apply to release of actual recordings

containing the voices of parties to a litigation. It is possible that the impact of such recordings might be far greater

than standard news reporting. In any event, no actual recordings have been offered in support of a request for

ruling. Such recordings have thus far played no role in any judicial decisions in this case.

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