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Use of Pseudonym Merited to Protect Prisoner from Victimization

The Ninth Circuit Court of Appeals held on May 27, 2015 that a California death-sentenced prisoner had submitted sufficient evidence to proceed under a pseudonym rather than his real name. The appellate court noted this was an exceptional case that required deviation from its normal practice to protect the prisoner from further harm.

The ruling came in a case where the petitioner was granted penalty-phase habeas relief based on sealed, graphic evidence of repeated sexual assaults in prison and credible evidence that he would likely be subjected to more violence if his name was revealed.

The Court of Appeals considered the factors set forth in Does I through XXIII v. Advance Textile Corp, 214 F.3d 1058 (9th Cir. 2000). It concluded the prisoner’s case met the high bar for proceeding under a pseudonym, and because his real name was not used, the Court denied his request to seal much of the information in its underlying opinion, including all references to his history of sexual abuse that formed the evidentiary basis to grant him relief. See: Doe v. Ayers, 782 F.3d 425 (9th Cir. 2015).

The state did not contest the sealing of records in the district court or on appeal, but did contest the use of a pseudonym. An expert testified that if the prisoner’s past victimization was recounted in a published opinion with his real name, other prisoners could read the opinion; that “notoriety would create a significant risk of severe harm at the hands of other inmates, a risk to which he would be quite vulnerable.”

The expert testimony and the prisoner’s “truly extreme history” of sexual abuse led the Ninth Circuit to conclude this was an “unusual case” where the use of a pseudonym was appropriate.

The appellate court addressed several of the state’s concerns, noting, for example, that the state was not prohibited from disclosing the prisoner’s identity to the family members of his victims(s), to comply with state notice laws.

The Court of Appeals said its order allowing the prisoner to proceed using a pseudonym was “the rare exception rather than the rule.” See: Doe v. Ayers, 789 F.3d 944 (9th Cir. 2015). 

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