I don’t generally report on unpublished appellate opinions, but today, March 22, the Fourth Circuit hands down an order related to the Moussaoui sentencing proceeding that will receive significant attention. The order addresses a petition for a writ of mandamus by several media concerns, each seeking contemporaneous access to trial exhibits and to transcripts of bench conferences in the case.

For the most part, the media’s requests are denied. The appellate court rules that District Judge Leonie Brinkema did not abuse her discretion in finding that exhibits that have been formally admitted into evidence, but not yet published to the jury, would not be given to the media. It also approves the district court’s decision to exclude the media from bench conferences (and transcripts thereof), noting that “bench conferences traditionally are not open to the public.”

The court does hand the media petitioners two victories, however. It rules in the case of bench conference transcripts that those may be released to the media after the trial. And in the main victory for the petitioners, it issues a writ of mandamus requiring the district court to devise a mechanism for providing a copy of fully published exhibits to the media by 10:00 am the next day. Note that I wrote “a copy.” The various media groups have to figure out on their own how to share that copy.

The order is handed down under the style In re Associated Press, et al. It is entered at the direction of Chief Judge Wilkins, with the concurrence of Judges Gregory and Duncan.


As readers of this site know, I generally stay out of discussions involving only trial court proceedings (including federal court trials, which are the other main interest in my professional career). Like many another lawyer, I have followed events over the past 48 hours or so in the Moussaoui sentencing proceeding, involving the astonishing revelation that a government attorney intentionally briefed (apparently sequestered) trial witnesses on the opening statements and early testimony. I have watched with interest as the court has wrestled with questions relating to how to address this breach of the court’s order relating to the conduct of this phase of the trial. I have noted Judge Brinkema’s solution to the problem, by barring testimony from the affected witnesses (which apparently include witnesses for both sides). But until someone uses the A-word, I don’t get into the fray.

Today, somebody used the A-word; the government reportedly is considering whether to appeal to the Fourth Circuit the judge’s decision on this issue. Attorneys for Moussaoui have argued that no interlocutory appeal is possible, because the trial is underway. The judge herself has apparently stated that she doesn’t know whether the ruling is appealable or not.

I may not know how this will all turn out, but I can offer this much insight into the question as to whether an appeal will lie at this point: No dice. This is an evidentiary ruling in the course of a trial. If disgruntled litigants felt the need (and perceived the right) to appeal immediately every evidentiary ruling, trials would become hopeless patchworks of proceedings, running back and forth between district court and court of appeals. This is neither a “final decision of the district court” (28 USC §1291), nor does it “conclusively determine a disputed question” or “resolve an important issue completely separate from the merits of the action” (Van Cauwenberghe v. Biard, 486 US 517 (1988)). Instead, it appears to me to be a “fully consummated decision that is but a step toward final judgment in which it will merge.” Behrens v. Pelletier, 516 US 299 (1996).

Nor is this a case in which Judge Brinkema, were she so inclined, could certify an issue for interlocutory appeal under 28 USC §1292(b); that only applies in civil cases.

In my view, it is overwhelmingly likely that the Fourth Circuit would reject an appeal by the government at this point.