                     United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604
                                        July 14, 2010


By the Court:

No. 10-2359

UNITED STATES OF AMERICA,
      Plaintiff-Appellee,                                Appeal from the United
                                                         States District Court for the
                v.                                       Northern District of Illinois,
                                                         Eastern Division.
ROD BLAGOJEVICH and ROBERT BLAGOJEVICH,
      Defendants.                                        No. 08 CR 888
                                                         James B. Zagel, Judge.
APPEAL OF:

        C HICAGO TRIBUNE C OMPANY, THE NEW YORK
        TIMES C OMPANY, ILLINOIS PRESS ASSOCIATION,
        and ILLINOIS BROADCASTERS ASSOCIATION


                                           Order

       After the court issued its opinion on July 2, 2010, a judge called for a vote on the
judge’s suggestion of rehearing en banc. This procedure is appropriate under Fed. R.
App. 35(a), because, although Rule 35 authorizes litigants to file petitions for rehearing
en banc, it does not condition en banc consideration on the filing of a petition. This court
regularly hears cases en banc, without a litigant’s petition, under the procedure
established by Circuit Rule 40(e). A grant of rehearing en banc on the court’s own
motion is equally permissible when the panel issues its opinion without a Rule 40(e)
circulation.

      A majority of the judges in active service have voted not to hear this appeal
en banc. Judges Posner, Kanne, Williams, and Sykes voted to hear the appeal en banc.

        Circuit Judge Flaum did not participate in the consideration or decision of this
case.
     POSNER, Circuit Judge, with whom KANNE , WILLIAMS, and
SYKES, Circuit Judges, join, dissenting from denial of rehearing en
banc.
     An experienced trial judge made a reasonable determination
that the release of jurors’ names before the end of the trial would
expose the jurors to the widespread mischief that is a daily if not
hourly occurrence on the Internet. The jury is not “anonymous.”
The jurors’ names are known to the parties and will be available
to the public at the end of the trial. Given the extremely high pro-
file of this case nationwide as well as in Illinois, and the unusual
attention-getting conduct of the principal defendant and his wife,
there is no good argument for releasing the jurors’ names before
the trial ends.
     I’d like to be able to end this opinion right here. But the proce-
dural complexities of the case and the unsound and confusing
analysis in the panel’s opinions require that I soldier on.
     The original panel opinion was issued on July 2 (the amended
opinion was issued on July 12). Later that day a member of the
court asked for a vote on whether to rehear the case en banc. That
is a sufficiently rare procedure to merit a brief comment.
     A court is authorized to rehear a case without a request by a
party. Western Pacific R.R. Corp. v. Western Pacific R.R. Co., 345 U.S.
247, 262–63 (1953); see also 28 U.S.C. § 46(c); Fed. R. App. P. 35(a)
and Committee Notes; United States v. Shapiro, 383 F.2d 680, 681 n.
1 (7th Cir. 1967) (en banc); Radiant Burners, Inc. v. American Gas
Ass’n, 320 F.2d 314, 317 (7th Cir. 1963) (en banc); United States v.
Padilla, 403 F.3d 780 (1st Cir. 2005) (en banc); Cooper v. Woodford,
357 F.3d 1054 (9th Cir. 2004); Mahony v. CSX Transportation, Inc.,
980 F.2d 1379 (11th Cir. 1993) (en banc). Although such requests
have been rare in this court, several years ago another member of
the court did make one, United States v. Gipson, 431 F.3d 993 (7th
Cir. 2005), and the propriety of doing so cannot be questioned.
     After the judges exchanged comments, but before the voting
on whether to grant rehearing en banc was complete, the panel
decided to alter its opinion to meet some of the concerns
expressed in the exchange of comments. This is not an unusual
No. 10–2359                                                            2


response when rehearing en banc is sought; it is entirely proper.
But what is irregular is that the panel issued its amended opinion
at the same time that it circulated it, even though several judges
eligible to vote on whether to rehear the case en banc had not yet
done so—they were awaiting the circulation of the amended opin-
ion. In any event the amendments to the original opinion are per-
functory, confusing, and internally inconsistent.
     The case is exceptional and the issue presented by the appeal
merits the attention of the full court. The trial of ex-governor Rod
Blagojevich and his brother is the most closely followed criminal
proceeding in this circuit since the trial of Rod Blagojevich’s pre-
decessor as governor, George Ryan, and the reversal of Judge
Zagel’s denial of the media’s request for access to the names of the
jurors while the trial is still going on has cast a cloud over the trial.
     Before jury selection, the district judge promised the pool of
prospective jurors that he would not make public the names of the
jurors selected for the trial until the trial ended. If as a result of the
panel’s decision and the hearing that it has ordered, or of a
subsequent appeal should the judge reaffirm his ruling after the
hearing, he is forced to renege on his promise, the jurors may well
be upset, concerned for their privacy, fearful of the prospect of
harassment (the prosecutors have already sought a gag order
against Rod Blagojevich because of his out-of-court statements
about the case), and angry at having been induced by false
pretenses to agree to take months out of their life to perform jury
service. (Although jurors are conscripts rather than volunteers, as
a practical matter jurors unwilling to sit in cases expected to last
months are excused.)
     The jurors know by now that a hearing has been ordered to
explore whether to continue to maintain the confidentiality of
their identities. One of the successful media appellants lost little
time in spreading the word. See John Chase, “Identities of
Blagojevich Jurors Could Be Made Public,” Chicago Tribune, July 7,
2010, http://articles.chicagotribune.com/2010-07-02/news/ct-met-
No. 10–2359                                                                                3


blagojevich-jurors-20100702_1_juror-names-jurors-names-
corruption-trial (visited July 7, 2010). Other media have chimed
in. See “Blagojevich Jurors,” Google, www.google.com #hl=en&
&sa=X&ei=j-c3TKf4M8WBlAepq5nTBw&ved
=0CBsQvwUoAQ&q=blagojevich+jurors&spell=1&fp=45f7bf772e3
27ef3 (visited July 9, 2010); see also “Blagojevich Jurors Identities,”
Google, www.google.com/#hl=en&source=hp&q=blagojevich
+ j u r o r s + i d e n t i t i e s& a q = f & a q i= g - p 1 & a q l = & o q = & g s _ r f a i
=CL9ZBbXg8TNfgFJX6gAS684TmBwAAAKoEBU_Q9NOn&fp=45
f7bf772e327ef3 (visited July 13, 2010). The panel opinions ignore
the jurors’ likely reactions to the news that the judge must
conduct a hearing to determine whether to reveal their names.
Conceivably he may decide to declare a mistrial. Should that
happen, and the case be retried, what will the new pool of
prospective jurors think?
      The elaborate preparations that the government would have
had to make for presenting the extensive evidence called for by
the original panel opinion would have delayed the end of a trial
that even without such an interruption was expected to last
between 15 and 17 weeks. (The trial began on June 3, and so may
last another 10 to 12 weeks, although there is speculation in the
media that it will be over sooner.) Jurors wouldn’t like to be told
that it would take even longer for them to regain their freedom
because of the judge’s having to conduct a hearing of uncertain
length to determine whether they shall retain their privacy—a
matter of great interest to them, though the panel opinions do not
suggest that they be consulted about it.
      The original panel opinion told the district judge to conduct a
hearing that would produce answers to the following “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
No. 10–2359                                                        4


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.” (Emphasis in original.) As a
detail, the word “sequestration” is used in error; it means isolating
the jurors from contact with the outside world during the trial.)
Evidence about jury experiences or behavior in similar trials
would be difficult to obtain, especially since electronic harassment
is a relatively new phenomenon of which little empirical evidence
may yet exist. A hearing to address these issues in the depth
required by the original opinion could not have been completed
quickly.
     The amended opinion substitutes for “vital” the words
“potentially important,” while leaving the list of evidentiary
inquiries unchanged. The opinion then inserts a new paragraph,
which I must quote in full:

    What evidence the judge must consider depends on what
    the parties submit. We do not imply that any of the
    subjects mentioned above is indispensable to a decision.
    In Black the parties chose not to present any evidence,
    and the court then decided in light of the parties’
    arguments and the judge’s experience with jurors’
    concerns and behavior. The district judge in this case has
    referred elliptically to efforts to contact him by email and
    in other ways; perhaps putting details on the record
    would help to make concrete some potential effects of
    disclosing jurors’ names while the trial is under way.
    What is essential—what occurred in Black but not so far
    in this case—is an opportunity for the parties (including
    the intervenors) to make their views known in detail,
    followed by a considered decision that includes an
    explanation why alternatives to delayed release of the
    jurors’ names would be unsatisfactory.

   In fact the parties in this case had exactly the same
opportunity “to make their views known in detail” and if they
wanted present evidence as the parties in the Black case; in neither
No. 10–2359                                                        5


case did the parties present any evidence of consequence.
(Paradoxically, some evidence was presented in this case—none
in Black.) The handling of the issue by the two district judges was
materially identical, and the amended opinion as a result
incoherent. That is the central issue, to which I return later in this
opinion. For now the point to note is that the new paragraph of
the amended opinion contradicts an unaltered portion of the
original opinion in which the panel indicated that an evidentiary
hearing is required whenever media seek the names of jurors
before the end of a trial because otherwise the district judge
would be “act[ing] without evidence,” contrary, the panel said, to
Presley v. Georgia, 130 S. Ct. 721 (2010) (per curiam), and Waller v.
Georgia, 467 U.S. 39 (1984). That is wrong. Presley just requires
appropriate findings, and Waller protects the defendant’s Sixth
Amendment right to a public trial, which is not infringed when
the media rather than the defendant object to a closed proceeding.
Extending the defendant’s entitlement to the media, whose right
under the First Amendment to information is no greater than the
ordinary citizen’s, Pell v. Procunier, 417 U.S. 817, 833–35 (1974);
Branzburg v. Hayes, 408 U.S. 665, 684–85 (1972); Hammer v. Ashcroft,
570 F.3d 798, 799 (7th Cir. 2009) (en banc), would mean that
anytime someone objected to the temporary concealment of the
jurors’ identities, the judge would have to interrupt the trial to
hold a hearing.
    One way to read the new paragraph of the amended opinion
is that there must be an evidentiary hearing, covering the
“important” issues flagged in the opinion’s preceding paragraph
(no other issues relating to the issue of releasing the jurors’ names
before verdict are mentioned), unless it is waived. It was waived,
as we’ll see, but in any event trial-type evidence is neither
required for, nor likely to be helpful in, the judge’s exercise of
discretion to withhold jurors’ names from the public until the trial
ends. Most trial rulings that a judge makes are based on
experience and common sense rather than on evidence. Think of
No. 10–2359                                                       6


the jury voir dire, the phrasing of instructions, the allotment of
trial time to the parties, rulings under open-ended standards such
as Fed. R. Evid. 403 on objections to the admission of evidence, the
trial schedule, and when to direct a mistrial if the jury seems
hung. Whether to protect the jurors’ identities until the end of the
trial is a similar question, calling for an exercise of judgment
rather than a taking of evidence.
     The panel’s initial decision to require a hearing was based on
a misreading of Presley, a case in which the trial judge had closed
the entire jury voir dire to the public on no coherent ground. At
one point he suggested that there was no space in the courtroom
for the defendant’s uncle, at another that he didn’t want family
members “interming[ling] with members of the jury panel.” The
Supreme Court reversed but expressly declined to consider what
procedures a court must use to determine whether to exclude
members of the public. 130 S. Ct. at 725. The misreading of Presley
remains unchanged in the amended opinion, while the insistence
on a hearing, which the panel had inferred from that misreading,
has been either eliminated or diluted—I wish I knew which.
     Judge Zagel, the district judge in the present case, ruled that
the appellants’ complaint was untimely. The appellants’ opening
brief in this court did not challenge that ruling. The judge had told
the media on May 17 of his decision to protect the confidentiality
of the jurors’ identities. Although trial had already been
scheduled to begin on June 3, the media did not move to intervene
to challenge the judge’s decision until June 1. Whether that was
too late is arguable; what is unarguable is that the appellants,
having failed to challenge the judge’s ruling on timeliness,
forfeited the challenge. J.S. Sweet Co. v. Sika Chemical Corp., 400
F.3d 1028, 1035 n. 2 (7th Cir. 2005).
     The panel opinion (in this as in most respects unamended)
says the government waived the appellants’ forfeiture at the oral
argument. But a waiver is a voluntary relinquishment of a known
right, United States v. Olano, 507 U.S. 725, 733 (1993); Estate of
No. 10–2359                                                         7


Luster v. Allstate Ins. Co., 598 F.3d 903, 912 (7th Cir. 2010), and by
not complaining about the appellants’ failure to challenge the
judge’s ruling on timeliness the government forfeited rather than
waived its complaint. At argument the government’s lawyer said
“it would appear that the government, by not raising the potential
waiver of the timeliness issue by our opponent, could be seen by the
court as having waived the waiver, so we acknowledge that fact.
However, the court does not need to accept our waiver, and we don’t
express an opinion regarding the briefs.” It is apparent from the
passages that I’ve italicized that the lawyer was acknowledging
forfeiture, not waiver, and, as lawyers (and for that matter judges)
often do, was using “waiver” as a synonym for “forfeiture.”
     Anyway a court is not bound by a waiver or forfeiture, and
not only when the waived or forfeited argument is jurisdictional.
United States v. Schmidt, 47 F.3d 188 (7th Cir. 1995); United States v.
Contreras-Ramos, 457 F.3d 1144, 1145 (10th Cir. 2006); see also
United States National Bank v. Independent Ins. Agents of America,
Inc., 508 U.S. 439, 447 (1993); City of Oklahoma City v. Tuttle, 471
U.S. 808, 815–16 (1985); Humphries v. CBOCS West, Inc., 474 F.3d
387, 391–92 (7th Cir. 2007); Massachusetts Bay Ins. Co. v. Vic Koenig
Leasing, Inc., 136 F.3d 1116, 1122 (7th Cir. 1998); Amcast Industrial
Corp. v. Detrex Corp., 2 F.3d 746, 749–50 (7th Cir. 1993); Aetna
Casualty Surety Co. v. P & B Autobody, 43 F.3d 1546, 1571 (1st Cir.
1994). I don’t know why the government forfeited the timeliness
objection to the appeal. It may have sought a broader victory. A
litigant’s tactical decision to go for broke should not tie our hands.
This is a case of successive forfeitures, by the appellants and by
the appellee. As in Schmidt and Contreras-Ramos, we should excuse
the second forfeiture rather than the first.
     Ordinarily the question whether to accept or reject a forfeiture
would not warrant consideration by the entire court. But a
decision that threatens to derail a very important case, and on
unsound grounds, does warrant such consideration. A narrow
ruling, enforcing the appellants’ forfeiture, would prudently defer
No. 10–2359                                                      8


resolution of the larger issues to a case in which they were
inescapable and in which the court would not be rushed in
considering them because a trial clock was ticking.
     I have thus far treated the substantive question—whether the
district court should be affirmed or reversed—as one of trial
management. But the appellants’ entire argument is that they
have a constitutional right to the jurors’ names before verdict, and
they have support for that view in the majority opinion in United
States v. Wecht, 537 F.3d 222 (3d Cir. 2008). But there was a
powerful dissent in Wecht which points out (id. at 254–55) that
other circuits have suggested that limiting the public disclosure of
jurors’ identities during trial is an acceptable alternative to
conducting the voir dire—to which the media has a presumptive
right of access under Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501 (1984)—in secret. See, e.g., ABC, Inc. v.
Stewart, 360 F.3d 90, 104–05 (2d Cir. 2004); United States v. Brown,
250 F.3d 907, 917 (5th Cir. 2001); United States v. Wong, 40 F.3d
1347, 1376–77 (2d Cir. 1994). These cases seem right. (The panel
has declined to address the constitutional issue.) Judge Zagel did
not conduct the voir dire in secret, as did the trial judge in the
Presley case, or conceal the jurors’ names from the parties and
their lawyers.
     The majority opinion in Wecht oddly emphasizes the role of
public disclosure of jurors’ identities in preventing “corruption
and bias” in a trial, and states that “corruption and bias in a jury
should be rooted out before a defendant has to run the gauntlet of
trial.” 537 F.3d at 239. The emphasis is odd because it falls on a
Sixth Amendment argument, grounded in the defendant’s
interests, and the Sixth Amendment was invoked neither in Wecht
nor in the present case. And although some psychologists have
speculated that jury anonymity increases the probability of
conviction, see, e.g., D. Lynn Hazelwood & John C. Brigham, “The
Effects of Juror Anonymity on Jury Verdicts,” 22 Law & Human
Behavior 695, 695–700 (1998), they are talking about cases in which
No. 10–2359                                                        9


the names of the jurors are never publicly revealed, which is not
our case. Hazelwood and Brigham’s study finds a higher rate of
conviction only when evidence against the defendant is strong,
which suggests that anonymity may actually improve jury
decisionmaking by removing impediments to rendering a correct
guilty verdict. They find no evidence that anonymous jurors feel
less accountable than ones whose names are publicly disclosed.
And while some critics of anonymity worry that it impairs jurors’
sense of personal responsibility for the outcome and causes jurors
to infer that the defendant is guilty, see, e.g., Ephraim Margolin &
Gerald F. Uelman, “The Anonymous Jury,” Criminal Justice, Fall
1994, pp. 14, 16, again these critics are referring to jurors whose
names are never revealed. More to the point, the defendants in
this case have not objected to Judge Zagel’s order; and in the case
against Conrad Black, discussed later in this opinion, the
defendant wanted the jurors’ identities concealed during the trial.
     The interest of the public, as distinct from the interest of the
litigants, in learning jurors’ identities before the end of a trial is
slight in comparison to the jurors’ interest in their privacy during
a protracted high-profile trial. Jurors are entitled to be treated
with respectful regard for their privacy and dignity, rather than as
media prey. Anderson v. Griffin, 397 F.3d 515, 519 (7th Cir. 2005);
Tyus v. Urban Search Management, 102 F.3d 256, 262 (7th Cir. 1996);
In re Globe Newspaper Co., 920 F.2d 88, 95 (1st Cir. 1990); cf. Press-
Enterprise Co. v. Superior Court of California, supra, 464 U.S. at
511–12. Most people dread jury duty—partly because of privacy
concerns. See Kenneth J. Melilli, “Disclosure of Juror Identities to
the Press: Who Will Speak for the Jurors?,” 8 Cardozo Pub. L.,
Policy & Ethics J. 1 (2009); David Weinstein, “Protecting a Juror’s
Right to Privacy: Constitutional Constraints and Policy Options,”
70 Temple L. Rev. 1, 2–3 (1997); Nancy J. King, “Nameless Justice:
The Case for the Routine Use of Anonymous Juries in Criminal
Trials,” 49 Vand. L. Rev. 123, 129 (1996). A degree of anonymity
safeguards jurors from intimidation during trial, promotes
No. 10–2359                                                          10


vigorous debate in the jury room, allows jurors to focus on the
facts rather than on how the public might receive their verdict,
reduces jurors’ anxiety (which may improve jury deliberations),
and makes people less reluctant to serve on juries. See, e.g., id. at
129; Kenneth B. Nunn, “When Juries Meet the Press: Rethinking
the Jury’s Representative Function in Highly Publicized Cases,”
22 Hastings Const’l L.Q. 405, 429–34 (1995); Abraham S. Goldstein,
“Jury Secrecy and the Media: The Problem of Postverdict
Interviews,” 1993 U. Ill. L. Rev. 295. These studies focus on full
juror anonymity, but their arguments apply, albeit with lesser
force, to the issue of partial anonymity involved in this case.
     “In a case like this that has garnered intense national and
international media attention, releasing juror names during the
pendency of trial threatens the integrity of the jurors’ ability to
absorb the evidence and later to render a verdict based only on
that evidence. This is the case because disclosure increases the risk
of third-party contact by the press or by non-parties who are
monitoring these proceedings through the vast media attention
this case has gathered.” United States v. Black, 483 F. Supp. 2d 618,
628 (N.D. Ill. 2007); see also United States v. Vario, 943 F.2d 236, 240
(2d Cir. 1991); United States v. Doherty, 675 F. Supp. 719, 725 n. 7
(D. Mass. 1987); cf. Sheppard v. Maxwell, 384 U.S. 333, 342, 353
(1966). “Not all celebrated trials merit an anonymous jury, but
‘[t]he prospect of publicity militates in favor of jury anonymity to
prevent exposure of the jurors to intimidation or harassment.’”
United States v. Branch, 91 F.3d 699, 724 (5th Cir. 1996), quoting
United States v. Wong, supra, 40 F.3d at 1377.
     The approach that Judge Zagel’s colleague Judge St. Eve took
in the Black opinion from which I have just quoted was sensible,
and the panel’s amended opinion endorses it—or at least purports
to. (The Black opinion had been cited in the panel’s original
opinion, but noncommittally.) Her ruling, protecting the jurors’
identities until verdict, was made without an evidentiary hearing.
It was based on the high-profile nature, of which she could take
No. 10–2359                                                        11


judicial notice, of the prosecution of Conrad Black. The
prosecution of Rod Blagojevich is higher profile—anyone who
doubts that has only to do a Google search under “Blagojevich.”
     Judge St. Eve’s approach is a model of how to deal with the
publicity sought by the media in a high-profile case, though she
based her ruling not on the kind of evidence that the original
panel opinion would have required Judge Zagel to obtain but on
her gut sense of what was likely to happen if the jurors’ names
were released during the trial. She said that “to disclose the jurors’
names in a high-profile trial such as this would create the
unnecessary risk that, during the course of the trial, jurors will be
subjected to improper and presumptively prejudicial contact.” 483
F. Supp. 2d at 630. She noted the “intense” media interest in the
case, as well as in the blogosphere. Id. at 621. The media and blog
interest in the Blagojevich trial is greater than it was in the Black
trial. Rod Blagojevich is a better known and more colorful figure
than Conrad Black, and online reporting has expanded rapidly in
the last three years. “The Official Guide to Blagojevich Blogs,”
http://legalinsurrection.blogspot.com/2008/12/official-guide-to-
blagojevich-blogs.html (visited July 13, 2010), lists six “Pure Blago
Blogs,” two “Blago Blog Aggregators,” twelve “Illinois Blogs” that
have extensive coverage of Blagojevich’s travails, and twenty-
three other blogs that provide occasional coverage of Blagojevich.
The blogs do not discuss only Blagojevich’s criminal trial, but that
is the focus of their current postings.
     Judge St. Eve predicted that releasing juror names during the
trial of Conrad Black would impair the jurors’ ability to render a
verdict based only on the evidence, because it would “increase[]
the risk of third-party contact by the press or by non-parties.” 483
F. Supp. 2d at 628. Likewise Judge Zagel said in denying the
media’s motion in the present case that it is a unique case
involving “enormous public attention, an enormous expression of
views.” He observed that there had already been “extraordinary
attention paid to this case.” He had received unsolicited emails
No. 10–2359                                                       12


and letters regarding the trial. He noted the risk that people might
attempt to influence the jurors at their homes. And, he added,
“these are all problems that we’ve dealt with before.” He
considered an alternative to concealing the jurors’
identities—instructing the jurors not to read emails—but rejected
it because it would “impose burdens on jurors that are unfair.”
     In distinguishing between Judge St. Eve’s handling of the
juror privacy issue in Black’s case and Judge Zagel’s handling of
the same issue in the Blagojevich case, the panel is splitting hairs.
Judge St. Eve invited the lawyers to submit briefs, and they did,
but they briefed the legal issue—the standard for determining
whether to conceal the jurors’ identity until the end of the
trial—and it is the focus of her opinion. Her opinion does not refer
to submissions by the parties, let alone to factual submissions.
There were none, except some excerpts from media coverage of
the case and a letter to Judge Pallmeyer, the judge presiding at the
criminal trial of Blogojevich’s predecessor as governor, George
Ryan, introduced to rebut Black’s claim that the press had been
instructed in Ryan’s case not to reveal the jurors’ names. The only
facts referred to in Judge St. Eve’s opinion concern the publicity
attending the prosecution, which were matters of public record
and common knowledge rather than of “evidence,” and her
receipt of expressions of concern from members of the venire
about publicity. (The amended panel opinion suggests that Judge
Zagel, if he wants to refer to communications with him, must put
them on the record. Judge St. Eve had not done so.) Judge Zagel
actually had a bit of trial-type evidence before him (Judge St. Eve
did not)—an affidavit from a Chicago Tribune reporter listing the
high-profile trials in the Northern District of Illinois in which
jurors’ names had been made public at the outset of the trial. So
the media have submitted evidence, that evidence was before
Judge Zagel when he ruled, and the media do not argue that they
were prevented from submitting more evidence. Doubtless they
submitted no additional evidence because they believe—it is the
No. 10–2359                                                         13


only ground of their appeal—that the First Amendment entitles
them to the jurors’ names unless threats are made against the
jurors.
     The sources that Judge St. Eve cited in support of her concern
that the media and the blogs might invade the jurors’ privacy and
by doing so disrupt the trial were all published materials rather
than trial-type evidence. And from similar sources we know and
Judge Zagel knows that there is much more publicity attending
the Blagojevich prosecution and therefore greater danger if the
jurors’ names are revealed before the trial ends. After Black the
prosecution of Blagojevich presented an a fortiori case for
protecting the juries’ identities until verdict and so Judge Zagel
could just have said “I agree with Judge St. Eve. Jurors’ names
should be withheld in a high-profile case. This case has an even
higher profile than Black’s.” (He did say he agreed with her
handling of the Black case; the appellants in the present case take
strenuous issue with Black.) If there is a right to public knowledge
of jurors’ identities before the end of trial, all concede that it is a
qualified right; and in light of the Supreme Court’s reservation in
Presley, its procedural contours are unsettled. All Presley requires
is that the trial judge identify “the particular interest, and the
threat to that interest,” that justify concealing material information
from the public. 130 S. Ct. at 725. That requirement was satisfied
in this case, as it had been in Black—in both cases with notable
informality so far as compiling evidence was concerned, and
without a hearing.
     The only difference is that Judge Zagel decided to protect the
jurors’ privacy before he heard from the media. If that was an
error, it was harmless, as this case is an even stronger one than
Black for juror privacy. But it was not an error, because it was a
tentative ruling and the media had an opportunity to ask the
judge to reconsider it, and they took the opportunity. That places
Judge Zagel’s decision on a solider foundation than Judge St.
No. 10–2359                                                          14


Eve’s because the present case has a much higher public profile
than the prosecution of Conrad Black, a Canadian businessman.
     If there was an error by Judge Zagel (there was not), not only
was it harmless; it was forfeited, because the appellants have not
asked for a hearing. Their motion to intervene did not ask for one,
nor their briefs in this court. In the district court they asked for the
jurors’ names and in this court they ask that Judge Zagel be
ordered to give them the names. Having waited to move to
intervene until two days before the trial was scheduled to begin,
they had to realize that it was too late for an evidentiary hearing.
Knowing from the precedent of the Black trial that the jurors’
names might be withheld from the public until the verdict was
rendered, and warned by remarks made by Judge Zagel himself
back in June of last year that he might do the same in this case, the
media would have had their motion to intervene ready to file in
time for the holding of a pretrial hearing had they wanted a
hearing. They didn’t want one, as further shown by the statement
in their opening brief in this court that “there is no justification
that could have been made for empanelling an anonymous jury in
this case” (emphasis added). They argue that only threats against
jurors can justify concealing their names. Their decision not to ask
for a hearing is the second forfeiture we should enforce.
     So, to quote from the new paragraph of the amended opinion,
there was “an opportunity for the parties (including the
intervenors) to make their views known in detail, followed by a
considered decision that includes an explanation why alternatives
to delayed release of the jurors’ names would be unsatisfactory.”
     The informality of Judge St. Eve’s proceeding in the Black case
was doubtless related in her mind to having ruled that there is no
presumptive right of public access to jurors’ names during the
trial. 483 F. Supp. 2d at 625. That put the burden of producing
facts on the media, and they produced none. She noted that the
secrecy of jury deliberations is sacrosanct, and that it is anomalous
to turn jurors into public figures. Id.; cf. United States v. Doherty,
No. 10–2359                                                      15


supra, 675 F. Supp. at 725 n. 7; Gannett Co. v. State, 571 A.2d 735,
750–51 (Del. 1989). Indeed much that goes on in a criminal trial as
in a civil trial is closed to the public. The English courts, in
contrast, have, until quite recently when rising caseloads forced
the courts to change their practice, followed a strict rule of
“orality.” Everything that judges did had to be done in public—so
no judicial deliberations in appeals, for example, or even judges’
reading pleadings and briefs other than during trial or appeal
(and no law clerks or secretaries). Robert J. Martineau, Appellate
Justice in England and the United States: A Comparative Analysis
101–03 (1990). That is not our tradition.
     The panel opinion overrules Judge St. Eve’s sensible ruling
rejecting any presumption in favor of disclosure of jurors’ names
before verdict. It does so on the basis not of the First Amendment
but of a purported “common-law right of access by the public to
information that affects the resolution of federal suits,” a right
said to be based on the “common-law tradition of open litigation,”
and of the Jury Selection and Service Act, 28 U.S.C. §§ 1861 et seq.
These parts of the opinion are unaltered by the amendment. They
are unsound.
     Whatever the situation in England, there is no general federal
common-law right of public access to information relating to
federal litigation. Such a right would create a presumption of
access to jury deliberations, appellate judicial deliberations,
depositions whether or not used at trial, terms of settlement,
grand jury proceedings, judges’ discussions with their law clerks,
and so on. No one thinks that the media can demand access to any
of these phases of the litigation process, or that if they do the
judge must hold a hearing to consider their demand; why should
the media have a presumptive right to the names of the jurors
before a trial ends?
     The panel cites Nixon v. Warner Communications, Inc., 435 U.S.
589, 602 (1978), which created a “presumption…in favor of public
access to judicial records” to enable the public to “monitor the
No. 10–2359                                                          16


functioning of our courts, thereby insuring quality, honesty and
respect for our legal system.” In re Continental Illinois Securities
Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984). But jurors’ names—as
distinct from evidence, United States v. Criden, 648 F.2d 814, 822
(3d Cir. 1981), materials attached to dispositive motions, Republic
of Philippines v. Westinghouse Electric Corp., 949 F.2d 653, 660 (3d
Cir. 1991), and judicial rulings—are not judicial records. “The
courts have not extended [the common-law right of access]
beyond materials on which a court relies in determining the
litigants’ substantive rights.” Anderson v. Cryovac, Inc., 805 F.2d 1,
13 (1st Cir. 1986); see also United States v. Amodeo, 44 F.3d 141,
145–46 (2d Cir. 1995). (And thus, for example, the right of access
does not extend to discovery materials. Anderson v. Cryovac, Inc.,
supra, 805 F.2d at 13.) “[J]uror names and addresses are collateral
information kept by the court for its necessary administrative
purposes, rather than being court proceedings or records of such
proceedings.” In re Globe Newspaper Co., supra, 920 F.2d at 94;
contra, In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1988).
Anyway the jurors’ names are to be protected only until verdict.
     If there is a federal common-law right of access to information
other than “materials on which a court relies in determining the
litigants’ substantive rights,” Anderson v. Cryovac, Inc., supra, 805
F.2d at 13, then, being a common-law right rather than a
constitutional right, it can be supplanted by legislation. E.g.,
United States v. Gonzales, 150 F.3d 1246, 1262–63 (10th Cir. 1998).
And it has been. The panel has turned the Jury Selection and
Service Act on its head. The Act requires each district court to
adopt a plan for jury selection, and section 1863(b)(7) provides
that the plan must “fix the time when the names drawn from the
qualified jury wheel shall be disclosed to parties and to the
public.” The implication is that the plan can withhold disclosure
of jurors’ names until the trial ends, or later for that matter. That is
what Judge St. Eve concluded in the opinion that the panel
admires. 483 F. Supp. 2d at 626. The conclusion is supported by
No. 10–2359                                                      17


the Act’s legislative history. The Act “permits the present
diversity of practice to continue. Some district courts keep juror
names confidential for fear of jury tampering. Other district courts
routinely publicize the names.” See H.R. Rep. 1076, 90th Cong., 2d
Sess. 11 (1968). The Act was passed in 1968, and the passage I just
quoted from the House Report shows there was no common-law
right of access to jurors’ names then; nor could one evolve after
the Act was in place, occupying the field.
     The jury selection and service plan for the U.S. District Court
for the Northern District of Illinois, which the appeal does not
challenge, provides that “any judge of this Court may order that
the names of jurors involved in a trial presided over by that judge
remain confidential if the interests of justice so require.” That is
what Judge Zagel found. The plan creates no presumption of
public access and does not require the judge to hold a hearing to
make this determination. ”[T]he decision as to access is one best
left to the sound discretion of the trial court.” Nixon v. Warner
Communications, Inc., supra, 435 U.S. at 599. There was no abuse of
discretion by Judge Zagel, just as there was none by Judge St. Eve
in the hearing-less Black case.
     The original panel opinion had held explicitly that federal
common law and the jury selection and service statute create a
presumptive right of public access to jurors’ names before verdict.
Nothing in that part of the opinion was changed. Yet the amended
opinion casts doubt on whether the panel adheres to its original
holding, for the other new paragraph of the amended opinion
begins: “Instead of constructing a framework for hearings,
findings, and rules of decision, we think it best to wait until a
hearing has been held” (emphasis added). The original opinion, in
a part that survived into the amended one, establishes a rule of
decision: a presumption of access based on federal common law
and the jury statute. Notice also how in this passage the
requirement of an “opportunity” for a hearing in the preceding
No. 10–2359                                                     18


new paragraph of the amended opinion molts into a requirement
for a hearing.
     One last point: the panel has ducked the constitutional issue
because it thinks it has alternative, nonconstitutional grounds for
a presumption that the media are entitled to the names of jurors in
advance of verdict. If those grounds fail, as I think they do, a
fortiori there has been no showing of a violation of the media’s
constitutional rights.
     We should vacate the panel opinions and affirm the district
court.
