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Battle Over Judicial Secrecy Continues

by Michael Rigby

As the trend towards secrecy in the U.S. judiciary continues to grow, so does the constitutional debate over such practices as sealing cases, hiding proceedings, and conducting clandestine searches. Recent decisions by the D.C. and Second Circuits have been favorable, but a lawsuit involving a controversial provision of the Patriot Act--and the super-secret court charged with overseeing it--has yet to be resolved.

In Washington, D.C., the Superior Court's practice of sealing cases led the District's Public Defender Service (PDS) to obtain an appellate court ruling condemning the practice. PDS asked the D.C. Circuit Court of Appeals (COA) to elaborate on the conditions under which cases could be sealed after one of its attorneys, Janet Mitchell, was ejected from a criminal proceeding. Mitchell, who was representing a defendant in a murder case, had planned to attend a hearing in which a co-defendant was expected to plead guilty. The co-defendant had agreed to testify against her client in exchange for leniency. Mitchell sought to evaluate the plea agreement, but prosecutors objected. Alluding to the co-defendant's safety, they asked the judge to order Mitchell out of the courtroom. The judge, citing only his supervisory authority and making no specific findings, had Mitchell removed and ordered the door locked behind her, according to documents filed by Sandra K. Levick, an appellate lawyer for the PDS.

After the PDS petitioned for review in the COA, a partial transcript of the hearing--ending at the point where Mitchell was removed--was released. Apparently the judge, John H. Baly Jr., considered sealing the hearing unexceptional. I understand that there's a practice of this courthouse," Bayly told Mitchell at one point. In their appeal, the PDS complained about an endemic" disregard for the public's right of access" to court proceedings. Research by the PDS revealed that nearly 200 D.C. Superior Court cases were totally under seal, and that an unknown number of other cases had been sealed to varying degrees.

On July 22, 2004, in a three-page ruling, the COA reaffirmed that the Supreme Court has already set strict conditions governing any request to seal a criminal record or close a criminal courtroom." See: Nellson v. Bayly, 856 A.2d 566 (DC App. Ct. 2004). Under the Supreme Court's standard--which held that open court proceedings are essential in ensuring the integrity and accountability of the criminal justice system--judges can only consider sealing a case when a compelling, competing interest, such as the right to a fair trial, would be compromised by openness. One advocate for First Amendment rights hailed the decision as a brief but unmistakable rebuke of the lower court's practices. It's short and to the point," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. It makes it absolutely clear that it was an untenable, unconstitutional practice.

D.C. courts are not the only ones attempting to circumvent the First Amendment by shrouding proceedings in secrecy. This practice is common in cases involving celebrities. So common in fact that media experts and scholars are now warning that the U.S. may be developing a two-tiered justice system: one for the rich and famous, and one for everybody else. The cases of Martha Stewart, Michael Jackson, and Kobe Bryant are typical. In New York, the judge in Stewart's case closed jury selection to the press and the public. In California, the judge in Jackson's child molestation case sealed virtually all documents and imposed a sweeping gag order. In Colorado, the judge in Bryant's rape case also imposed a gag order and held many hearings on the accuser's sex life in secret. The idea that you have justice and then you have celebrity justice is really offensive," said Dalglish. Does the public understand what preferential treatment these people are receiving from the system?" If they decide celebrities are entitled to a different kind of justice," Dalglish continued, we have lost press oversight of the system. Without that, we will never know if the rich and famous are getting the same justice as the rest of us.
The judges in all three cases cited fears that sensational publicity would taint the jury pools and adversely affect the defendants' right to a fair trial. Laurie Levenson, a Loyola University law professor, conceded these are extraordinary cases, but said the actions taken in high-visibility cases end up defining the law" for everyone.

In the Stewart case, 17 news organizations challenged the judge's decision to select the jury in secret. The Second Circuit held that the judge had erred in excluding the media and the public. To hold otherwise would render the First Amendment right of access meaningless," the Court said. It further noted that openness of the court process acts to protect, rather than to threaten, the right to a fair trial.

Even more troubling than closed hearings and proceedings is the near total secrecy under which the Foreign Intelligence Surveillance Court (FISC) operates. Established in 1978 as part of the Foreign Intelligence Surveillance Act, this covert court approved more than 1,700 searches and seizures in 2003, according to documents provided to Congress by the Department Of Justice (DOJ). Currently, the FISC is charged with overseeing one of the most controversial provisions of the Patriot Act--Section 215--which authorizes the FBI to obtain tangible things" from businesses during counterintelligence and counterterrorism investigations. Librarians are particularly outraged by the broadly worded section because it allows the FBI to seize library records while prohibiting the library from disclosing the search. Former U.S. Attorney General John Ashcroft contended in September 2003 that the section had never been utilized, but recent court filings indicate the FBI may have since sought to use it.

In a Michigan lawsuit brought by the American Civil Liberties Union (ACLU), DOJ attorneys argued that anybody targeted under 215 would be able to contest the issue. If and when a Section 215 order is served on these plaintiffs, they will have ample opportunity to challenge it before the court that issues the order [i.e. the FISC]," the attorneys wrote in a July 2004 brief. However, a five-page list of rules released to the ACLU in August 2004 indicates that only attorneys authorized by the attorney general or government agents may appear before the court, and no mention is made of accepting outside briefs or motions. Patrice McDermott, deputy director of government relations for the American Library Association, said the government's arguments appear to be a red herring." They keep saying you can challenge it, but they have never indicated how anyone could actually do so.

Unfortunately, in the wake of 9/11 and the consequent war on terror," secrecy has become the watchword of government agencies and the judiciary. No doubt the battle for openness and transparency will be a long one. See PLN, December 2003 for more on the trend toward secret court hearings and proceedings.

Sources: Washington Post, FindLaw, Associated Press.

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Related legal case

Nellson v. Bayly

856 A.2d 566

District of Columbia Court of Appeals.

Edward NELLSON, Petitioner,
Hon. John H. BAYLY, Jr., et al., Respondents.
In re Sealed Case.

Nos. 04-OA-24, 04-SS-512.

July 22, 2004.

Background: Petitioner sought writ of mandamus directing the trial judge to unseal the records in criminal proceedings.

Holding: The Court of Appeals held that writ was not warranted given that there was no dispute that the records were required to be unsealed.
Writ denied.

*566 Before SCHWELB, FARRELL, and RUIZ, Associate Judges.



Petitioner/appellant sought a writ of mandamus directing the trial judge to unseal the records and proceedings in this criminal case because the judge, in ordering that they be sealed, had not complied with the substantive and procedural standards required by the First Amendment. The proceedings in question were the guilty plea of a co-defendant of petitioner; they had been placed under seal at the request of an Assistant United States Attorney, and counsel for petitioner had been excluded from them. In response to the mandamus petition, the United States Attorney, on behalf of the United States and the trial judge, admitted that the exclusion of petitioner's counsel from the proceedings in the co-defendant's case did not satisfy First Amendment standards, and requested that the case be remanded so that the record could be immediately unsealed. Accordingly, this court denied the mandamus petition without prejudice to refiling, and remanded the case to the trial court so that the record could be unsealed.

Petitioner has now moved for reconsideration of the denial, asking not that the result be changed but that the denial of the writ be accompanied by an opinion explaining the relevant legal principles. Petitioner asserts that, unlike many other courts, "this court has never set forth procedures implementing the public's qualified *567 First Amendment right of access to criminal proceedings and records." (Mot. to Reconsider at 12). Of course, that is not quite true because, as petitioner recognizes, the court's decision in United States v. Edwards, 430 A.2d 1321 (D.C.1981) (en banc), gave critical guidance on the standards governing public access to criminal proceedings and records. See id. at 1343-46. The fact that, as petitioner asserts, we have not revisited those standards--in particular their application to the issue of closure of a courtroom in a criminal case--in a published opinion may reflect only the fact that in intervening years the Supreme Court has given even more explicit and authoritative guidance on the standards and procedures governing the limited authority of courts to restrict public access. [FN1] See, e.g., Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 14-15, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (to justify closure of a protected judicial proceeding, the trial court must find that closure serves a compelling interest; that in the absence of closure there is a "substantial probability" that this compelling interest would be harmed; and that there are no alternatives that would adequately protect that compelling interest); accord, Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).

FN1. This court has considered the issue of access to the courtroom in the different setting of the Family Division. See, e.g., In re J.D.C., 594 A.2d 70 (D.C.1991); Morgan v. Foretich, 521 A.2d 248 (D.C.1987).

In the present case, the parties no longer dispute the application of these standards, and the trial judge, although originally misled in their application, has changed his mind and ordered the unsealing of the record. The representations of the United States in this court give us full confidence that its attorneys will be, if they have not already been, instructed on the strict conditions governing any request to seal a criminal record or to close a criminal courtroom. We therefore adhere to our denial of the petition for mandamus, and, it is

ORDERED that petitioner's motion to reconsider, so far as it seeks a reiteration of the governing standards, is granted to the extent reflected in the discussion contained in this order. It is

FURTHER ORDERED that petitioner's motion is denied to the extent it appears to seek, as before, issuance of a writ of mandamus.

856 A.2d 566