Taking secrecy to extremes

From the Fall 2009 issue of The News Media & The Law, page 20.

The First Amendment to the U.S. Constitution guarantees that criminal court proceedings are presumptively open to the public, but the presumption is not absolute. In some cases — from criminal gang prosecutions to national security issues — courts identify particular information that must be kept from public view.

In these cases, the question becomes how much secrecy is really necessary to protect the information at issue. And recent developments in several cases highlight the need for the news media to push to limit closures.

A high-profile murder

In July, a Los Angeles federal judge ordered reporters and the public to leave his courtroom, and conducted an entire civil trial behind closed doors. The extreme secrecy apparently was an attempt to protect corrections officials’ strategies for identifying prison inmates who belong to white supremacist gangs.

Earl Krugel was a high-profile radical with the Jewish Defense League whose death was as notorious as his crime. After receiving a 20-year sentence for a 2001 plot to bomb a California mosque and the office of Arab-American Congressman Darrell Issa, Krugel was beaten to death by a white supremacist just three days after he arrived at a federal prison in Phoenix.

Krugel’s widow sued the Bureau of Prisons claiming that it did not do enough to identify and segregate dangerous inmates. But when reporters showed up to cover the highly publicized trial, U.S. District Judge Stephen Wilson ordered them to leave the courtroom.

Wilson conducted the entire trial in secret, even sealing the opinion in which he ruled for the government. The proceedings needed to be secret, his clerk told the Los Angeles Times, because of “testimony that concerned confidential ways prison officials identify gang members, especially the Aryan Brotherhood, which is a very dangerous gang.”

Media lawyer Lee Levine, who was not involved in the case, told the paper in response, “There have been circumstances in which limited, targeted closing has been ordered because of specific sensitive or classified information or trade secrets. But the notion of closing an entire trial in a federal court is astounding.”

The Times and three other media groups — The Associated Press, the California Newspaper Publishers Association, and The Reporters Committee for Freedom of the Press — asked the court to unseal court documents and trial transcripts. The groups argued that even if there were a compelling need to protect some of the Bureau of Prison’s information from the public, the court could do so without going so far as closing an entire trial.

“While any infringement of the public’s constitutional right of access is inappropriate,” the groups argued in their request to unseal court documents, “the holding of a secret trial and the sealing of court records concerning substantive court rulings is almost impossible to justify.”

After the media groups got involved, the prison bureau told the court it only wanted to keep three types of information sealed — the identities of confidential informants, a policy that lays out techniques used to identify prison gangs, and a manual on identifying gang symbols and terminology. The Bureau of Prisons also dropped its request that its brief regarding the sealing portions of the trial transcript should be sealed, saying the brief “should be unsealed so that the News Organizations can review it.”

Least restrictive means

The Krugel case highlights an important constitutional requirement often overlooked by courts and parties. Even where there is a truly compelling need to keep particular information secret, the First Amendment requires that the closure be no broader than necessary to protect it.

“If a sufficiently compelling justification is found to warrant keeping some information secret, the trial judge is required to narrowly tailor any sealing or closure order,” said Kelli Sager of Davis Wright Tremaine LLP, who represented the media coalition in the Krugel case.

The Supreme Court ruled in 1984 that even where there is a compelling need for secrecy a trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate in support of the closure.

The U.S. Supreme Court case Press-Enterprise v. Superior Court, popularly known as Press-Enterprise I, dealt with the public’s right of access to jury selection. Justice Thurgood Marshall, writing a concurring opinion, added that “a trial court should be obliged to show that the order in question constitutes the least restrictive means available for protecting compelling state interests.”

Lower courts generally have extended the same First Amendment standards to civil cases like the Krugel lawsuit. Some lower courts have gone even further, making clear that the party asking to close the courtroom must be able to prove that keeping the public out of the courtroom is the only way to protect secret information. As one federal appellate court put it, it “is the burden of the party seeking closure” to “present facts supporting closure and to demonstrate that available alternatives will not protect his rights.”

Asking these questions often leads courts to find ways to protect truly sensitive information without unduly infringing on the rights of the public and the press. For example, Sager said that, at minimum, narrow tailoring in the Krugel case “would have required pleadings to be filed publicly with limited redactions, rather than allowing entire documents to be sealed; and it would have meant limiting any closure order to only the narrow portions of testimony that related to the information the court determined should remain secret.” She added that “the trial judge’s order acknowledges in hindsight that both things should have been done in this case.”

Bucking the trend in Georgia

Often a request to reconsider secrecy from a party, a reporter or a member of the public will lead a judge to look for less obtrusive ways to protect the proceedings.

But trial courts do not always follow the high court’s admonition that they should consider alternatives to closing an entire hearing. Indeed, a criminal defendant asked the U.S. Supreme Court in July to review a case where Georgia’s highest court ruled that the public can be excluded from jury selection if the party opposing the closure does not suggest a feasible alternative.

The case, Presley v. Georgia, began when DeKalb County Superior Court Judge Linda W. Hunter ordered the public to leave the courtroom while jury selection was taking place for Eric Presley’s drug trial. The judge also ordered observers to vacate the entire sixth floor of the courthouse, suggesting they visit the snack bar, because “jurors will be all out in the hallway in a few moments.”

Hunter was concerned that members of the public or the defendant’s family would speak to prospective jurors, and she apparently did not believe that the presumption of open courts applied to jury selection.

The Georgia Supreme Court agreed that the public could be excluded from the entire jury selection. While it acknowledged that court closures “must be no broader than necessary,” the court found that the defendant should have suggested an alternative to closure if he wanted the public to remain. Presley’s attorney had asked the trial whether “some accommodation could not be made” for seating both the public and prospective jurors.

But the state high court found that the “nebulous request” was not specific enough. It concluded that when “there is no discussion on the record regarding alternative actions, it can be inferred that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest.”

Looking to the high court

Presley’s request for review, supported by friend-of-the-court briefs from Georgia Association of Criminal Defense Lawyers and the Reporters Committee, is currently before the U.S. Supreme Court.

His supporters hope the high court will follow the lead of Leah Ward Sears, then the state court’s chief justice, and Carol Hunstein, the current chief justice. Both dissented from the state court’s decision on the ground that the court’s “failure to consider alternatives … is a clear violation” of the U.S. Supreme Court’s decisions, as well as Georgia state law.

“A room that is so small that it cannot accommodate the public,” Sears and Hunstein said, “is a room that is too small to accommodate a constitutional criminal trial.”