United States of America v. ROD BLAGOJEVICH and ROBERT BLAGOJEVICH

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 12, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10-2359
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROD BLAGOJEVICH and ROBERT BLAGOJEVICH,
Defendants.
APPEAL OF:
CHICAGO TRIBUNE COMPANY, THE NEW YORK
TIMES COMPANY, ILLINOIS PRESS ASSOCIATION,
and ILLINOIS BROADCASTERS ASSOCIATION
Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 08 CR 888
James B. Zagel, Judge.
Order
The opinion issued in this appeal is amended by replacing the first two full
paragraphs on page 9 of the typescript opinion with the following three paragraphs:
But because the judge acted without evidence, and the arguments at the
brief hearing on the motion to intervene post-dated the judge’s decision (which
had been conveyed to jurors the previous day), we do not know the answers to
some potentially important 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

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No. 10-2359 Page 2
have told the jurors to ignore any unsolicited email or text messages, have
those instructions been obeyed? If not, do 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. Findings of fact made after an appropriate
hearing must be respected on appeal unless clearly erroneous. But no evidence
was taken, no argument entertained, no alternatives considered, and no
findings made before this decision was announced to the jurors.
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.
Instead of constructing a framework for hearings, findings, and rules of
decision, we think it best to wait until a hearing has been held. We do not decide
today when it is appropriate to delay the release of jurors’ names. That subject
will not be ripe until the district judge has provided a better basis for
understanding not only the risks of releasing the names before the trial’s end,
but also other options (and the risk that alternatives such as cautionary
instructions will fail).

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