The opinion of the court was delivered by: QUACKENBUSH
JUSTIN L. QUACKENBUSH, District Judge.
On March 26, 1986, on motion of Sid Wurzburg, attorney for the defendant, this court ordered that the pretrial hearing of that morning be closed to the public and the press. Prior to that Order, the court afforded members of the press the opportunity to be heard on the proposed closure and the court further advised members of the press that it would be available at any time that counsel for any member of the media wished to be heard on the issue. On March 27, 1986, Duane Swinton, counsel for Cowles Publishing Company, the publisher of the only Spokane newspapers, appeared before the court, objected to the closure Order, and requested the court to release transcripts of the March 26, 1986 hearing. This court denied that motion. This memorandum will set forth the factual background and findings of the court as to the necessity for the closure of the March 26, 1986 hearing.
While this court is thoroughly familiar with Mr. Hegge's background and the massive and pervasive coverage in this district of Mr. Hegge's alleged previous criminal activities, trials and convictions, a summary thereof is necessary to enable a reviewing court to understand the nature and extent of that alleged activity and the press coverage thereof. The massive amount of press and media coverage of Mr. Hegge's activity would undoubtedly fill several, if not many, file drawers.
It has been thoroughly reported in the press that Mr. Hegge is, or has been, the president of the Ghost Riders Motorcycle Club. What must be made clear herein, is that Mr. Hegge is indicted on charges of Conspiracy to Possess Controlled Substances With Intent to Distribute (Count I) and Unlawful Transportation and Receipt of Firearms in Interstate Commerce (Count II). Evidence of Mr. Hegge's recent murder conviction in the State of Wisconsin and his alleged implication in the murder of Spokane Police Detective Brian Orchard would not appear in any manner to be matters which could be considered by the jury in Mr. Hegge's trial on the two charges in this case. Likewise, evidence of his alleged, and thoroughly reported, other criminal activities would not be admissible in the trial of the pending charges, sub judice. The matters presented in the March 26, 1986 hearing would also not be admissible in the trial of this case which was scheduled to commence April 14, 1986.
In June, 1983, Detective Brian Orchard of the Spokane Police Department was shot and killed while on a stake-out of the alleged resale of guns stolen in a Wenatchee, Washington burglary. While such an event may not have been unusual in large metropolitan areas of this country, this was the first time a police officer had been killed in the line of duty in the Spokane area in over fifty years. The Spokane paper and television stations covered this murder and the resultant trials extensively. To say the least, those matters became front page-top headline stories.
Mr. Hegge's name immediately surfaced in the news reports of Detective Orchard's death. The two individuals arrested on the murder charges, Lonnie Link and Donald Beach, were reported to have been in a car which was, or had been, registered to Mr. Hegge. However, Mr. Hegge was not at that time charged in connection with Detective Orchard's death. He was charged in 1985 with aiding and abetting the murder of Detective Orchard. He has not been tried on that charge in that a prior Wisconsin murder charge was yet to be tried and the charges in this case were pending.
In 1985, Mr. Hegge was charged with first degree murder by the State of Wisconsin arising out of a tavern fire and resultant death in that state. Trial of that case took place in late 1985. Mr. Hegge was convicted of first degree murder and other charges. That trial received extensive newspaper coverage in this district along with television reporting thereof, including the playing of television tapes from the trial on Spokane television stations.
Shortly after the Wisconsin trial of Mr. Hegge, this court attempted to select a jury in this district for the trial of the charges in United States of America v. Billy McEwen, CR-85-125-1-JLQ. Mr. McEwen was charged in the same indictment with Mr. Hegge. While the jurors were not acquainted with Mr. McEwen, they were thoroughly acquainted with Mr. Hegge and his criminal record. These jurors were not only from the Spokane area but also from other locations in this district as far as two hundred miles from Spokane. The Spokane paper is distributed throughout this district and the Spokane television and radio stations reach the greater portion of the district. It is clear that other newspapers in this district published in smaller localities have also given Mr. Hegge extensive coverage. A copy of the attempted jury selection in the McEwen case has been prepared and made part of the record in this case. A copy of that transcript has been furnished the press. In the McEwen case, this court concluded that in view of the extensive knowledge of the jury panel of Mr. Hegge's unrelated criminal activities, Mr. McEwen could not obtain a fair trial in this district. The government did not contend otherwise. As a result, the court granted Mr. McEwen's motion for change of venue to another district. Those proceedings and Mr. Hegge's alleged participation in that alleged criminal activity received full coverage by the media.
Another recent case in this district in which the press reported Mr. Hegge's alleged criminal activities was that of United States of America v. Lonas, CR-85-123-1. This case was tried to a jury in August, 1985, and included testimony that Lonas was shot in Coeur d'Alene, Idaho, while committing a house burglary at the behest of Mr. Hegge. That testimony again received full coverage by the media.
Following completion of the murder case against Mr. Hegge in Wisconsin in late 1985, Mr. Hegge was returned to this district in January of this year to stand trial on the charges pending in this case. Every event therein has been thoroughly reported by the media, starting with the transportation from Wisconsin and arrival of Mr. Hegge in this district. One of the first motions filed by appointed counsel for Mr. Hegge was for a change of venue. At the first hearing on motions, Mr. Hegge informed the court that he did not join in this motion. The court, Mr. Wurzburg, and counsel for the government expressed beliefs that Mr. Hegge might not be able to obtain a fair and impartial jury in this district and urged Mr. Hegge to join in the change of venue motion. Assistant United States Attorney James Crum who has served in that position for over thirteen years and tried many high-profile criminal cases, had previously informed the court at the time of Mr. Hegge's arraignment that he believed it would be impossible to find a fair and impartial jury in this district to try Mr. Hegge. (See newspaper article of January 31, 1986 attached to Ct. Rec. 38). The court informed Mr. Hegge that he must make a decision on March 20, 1986 on the change of venue.
On March 20, 1986, despite the recommendation of all concerned, including the court, Mr. Hegge exercised his constitutional right to be tried in this district and refused the change of venue. This refusal caused this court immediate concern that a serious conflict existed, or was arising, between the defendant's constitutional right to be tried in the district where charged and his Sixth Amendment right to a trial by a fair and impartial jury. These concerns are expressed in this ...