Secret courts
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NEWS MEDIA UPDATE U.S. SUPREME COURT · November 28, 2005 · Secret courts
Supreme Court refuses to review FBI translator's case
Nov. 28, 2005 · The U.S. Supreme Court today rejected a petition to review a federal appeals court's dismissal of a whistleblower case on national security grounds, and whether the appellate court improperly closed oral arguments to the public when it reviewed that dismissal.
The Court's decision lets stand an April 2005 order by the U.S. Court of Appeals in Washington, D.C., denying the media's attempt to intervene in the case to gain access to oral arguments that the court had unilaterally ordered sealed without issuing any written findings. A media coalition led by The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief asking the Supreme Court to review the case and require courts to find that closure is permissible only when it protects a compelling government interest.
Under the appellate court's reasoning, the coalition argued in its brief, "members of the public could be excluded from any broad category of cases that would facilitate public review of government conduct and would never understand when the government's interest in protecting state secrets outweighs the public's . . . [more]
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NEWS MEDIA UPDATE PENNSYLVANIA · November 17, 2005 · Secret courts
Judge must open lawsuit about juvenile detention center
Nov. 17, 2005 · The Superior Court of Pennsylvania, finding that a juvenile detention center's "weak" assertions involving trade secrets "appear to be nothing more than a ruse to prevent public exposure," ruled Wednesday that a trial court improperly sealed records in the case and denied a newspaper's attempt to intervene for access to the records.
A three-judge appellate panel ruled unanimously that the Court of Common Pleas of Luzerne County abused its discretion in December 2004 when it denied The (Wilkes-Barre) Times Leader's attempt to intervene in the sealed case, preventing public access to the record. Open proceedings are "particularly important in actions that concern public money, a contract with a public body, and allegations of misuse of millions of dollars in public funds," Judge Mary Jane Bowes wrote for the panel. Although in some instances the presumption of openness can be overcome where "closure serves an important governmental interest and there is no less restrictive way to serve that interest," she wrote that in this case "the public interest weighs heavily in the favor of . . . [more]
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NEWS MEDIA UPDATE WASHINGTON, D.C. · November 15, 2005 · Secret courts
Dow Jones fights sweeping protective order in Libby case
Nov. 15, 2005 · Dow Jones & Co. Inc., publisher of The Wall Street Journal, argued in U.S. District Court in Washington, D.C., yesterday against a proposed protective order that would prevent I. Lewis "Scooter" Libby and his lawyers from publicly disclosing materials they will receive from the prosecution.
A grand jury indicted Libby on Oct. 28 for perjury and obstruction of justice arising out of Special Prosecutor Patrick Fitzgerald's investigation into the outing of the identity of CIA operative Valerie Plame. Fitzgerald filed a motion Thursday for a broad protective order, which Libby did not contest. The order seeks to shroud all "material produced by the government in preparation for or in conjunction with any stage of the proceedings in this case" and would prevent the public disclosure of this information under penalty of civil or criminal actions. The order would cover grand jury transcripts and witness statements among numerous other documents.
Dow Jones objected to Fitzgerald's proposed order on several grounds, including that Fitzgerald apparently did not follow the proper rules of . . . [more]
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NEWS MEDIA UPDATE CONNECTICUT · November 14, 2005 · Secret courts
Media can intervene in priest abuse cases to see documents
Nov. 14, 2005 · Newspapers can ask for sealed documents in several priest sex abuse cases, the Connecticut Supreme Court ruled, setting the stage for a lower court to decide whether they will be released. While not guaranteeing the documents' release, the ruling maintains that judges hold executive control over the protective orders that close them from public viewing.
The Bridgeport Diocese and its accused priests "bear a heavy burden of establishing a compelling interest in preventing those documents from being disclosed to the public," Justice Richard N. Palmer wrote for the court in the 3-2 ruling. The Nov. 4 ruling upheld a trial judge and reversed an intermediate appellate court ruling.
Without a "compelling interest" established, Palmer wrote, there would be no reason to prevent those documents from being disclosed.
"Although the newspapers' interest in the withdrawn cases is limited in the sense that they do not have and never have had, a stake in the outcome of those case, they, and the public, do not have a legitimate interest in the contents of the court's files," Palmer . . . [more]
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NEWS MEDIA UPDATE ILLINOIS · November 2, 2005 · Secret courts
Pre-trial hearing unconstitutionally closed to the public
Nov. 2, 2005 · A May 9 court hearing to determine the admissibility of certain evidence into the murder trial of a man accused of the September 2003 drowning of his then-girlfriend's three children should have been open to the public under U.S. Supreme Court precedent mandating open trials, an Illinois appellate court ruled Oct. 24.
A three-judge panel of the 4th District Appellate Court in Springfield, Ill., agreed with three news organizations that the evidence hearing should have been open because " (1) it involves a question of great public interest and (2) the restrictions the trial court imposed are capable of repetition and evading review," according to the court's opinion.
The Associated Press, the Decatur Herald & Review and The (Bloomington) Pantagraph appealed DeWitt County Circuit Court Judge Stephen H. Peters' decision to close the May 9 hearing, restricting the media and the public's access to statements made about the defendant by two of the children before they died and to testimony about character attributes meant to be kept out of the trial.
The lower court . . . [more]
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NEWS MEDIA UPDATE KANSAS · October 28, 2005 · Secret courts
Courtroom ban on sketch artists rejected by federal judge
Oct. 28, 2005 · A Wichita television station has won a federal court ruling that allows one sketch artist from the station to cover a criminal trial in U.S. District Court. The Oct. 17 ruling permits only KWCH-TV to send one sketch artist into the trial under certain restrictions as to what may be sketched.
The station initially went to court in early October after being notified of the ban on sketch artists by the U.S. attorney's office, which created the ban due to privacy concerns for victims of alleged sexual misconduct who would be shown in videos to the jury. The U.S. District Court in Wichita cited the U.S. Crime Victim's Rights Act in directing that the graphic detail on the tapes required that they be shown on a screen visible only to the jury, court and parties involved, but not to anyone seated in the gallery.
The court ruled that the station could allow one sketch artist into the trial with the understanding that jurors or victims would not be drawn, and that during each victim's appearance, no sketch materials would be visible in the courtroom.
"There can be no doubt that allowing the . . . [more]
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NEWS MEDIA UPDATE SECOND CIRCUIT · October 27, 2005 · Secret courts
Judges must control security measures that affect access
Oct. 27, 2005 · While finding that a security policy requiring court visitors to provide photo identification did not deprive a defendant the right to a public trial, the U.S. Court of Appeals in New York City (2nd Cir.) nonetheless ruled that district court judges are responsible for ensuring that security policies do not impair litigants' right to a public trial.
A three-judge panel ruled Oct. 17 that the U.S. District Court in Rochester, N.Y., failed to evaluate whether the security measure affected Wendell Smith's right to a public trial. The "district court erred in assuming that Smith's rights could not be violated unless a court itself restricts courtroom access," Judge Barrington Parker wrote for the panel. Moreover, "even if the district court did not itself initially enact the screening procedures," he explained, "the district court, not the Marshals Service, controlled access to the courtrooms and ultimately ratified the screening proceeding by concluding that they were constitutionally permissible."
Lawyers for Smith, convicted on federal firearms charges, appealed the trial court's rejection of . . . [more]
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NEWS MEDIA UPDATE THIRD CIRCUIT · September 28, 2005 · Secret courts
Original 'state secrets' case papers not 'fraud on court'
Sep. 28, 2005 · A federal appellate court panel, saying there is an "obviously reasonable" truthful interpretation of statements made by the Air Force in the 1953 lawsuit that prompted the U.S. Supreme Court to create a "state secrets" privilege, has refused to find a fraud upon the court in the landmark case despite revelations in declassified records of a cover-up. The ruling, by a three-judge panel of the U.S. Court of Appeals in Philadelphia (3rd Cir.), was unanimous.
Declassified documents showed the 1948 crash of a B-29 Superfortress bomber in rural Georgia was caused by negligence of the base commander, mechanics and crew. Widows of three civilian engineers who were among those killed in the crash were unable to recover full damages for the deaths of their husbands because the military claimed release of the accident reports would reveal "state secrets" not to be divulged in the interest of national security. The government would not even permit the judge handling the survivor claims to see the reports.
The privilege articulated by the high court in Reynolds v. U.S. has been used in at least 900 . . . [more]
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NEWS MEDIA UPDATE CALIFORNIA · September 19, 2005 · Secret courts
Court orders documents unsealed in Apple trade secret case
Sep. 19, 2005 · Apple Computer Inc. released documents under court order Sept. 9 that describe Apple's investigation into the source of an alleged trade secret leak.
A California Court of Appeal ordered the unsealing Aug. 30. The documents in the trade secret case were filed as part of Apple's response to two journalists' motion for protection from revealing their sources. Attorneys for the journalists sought their release, arguing that "Public access to the evidence that supports each party's position is not only crucial to the truthfinding function of these proceedings, but also to public confidence that justice has been meted out fairly."
The documents describe Apple's investigation into an alleged leak about details of an Apple product that appeared on several Web sites. The journalists believe that the documents are critical to their cause to protect their sources because they show that Apple failed to conduct an exhaustive investigation.
In a typical reporter's privilege case, if the subpoenaing party conducted an exhaustive investigation, yet still cannot identify the source of the leak, . . . [more]
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NEWS MEDIA UPDATE ALABAMA · September 9, 2005 · Secret courts
Documents from corporate fraud trial ordered unsealed
Sep. 9, 2005 · Sealed documents from the fraud trial of Richard Scrushy, founder and former CEO of HealthSouth Corp., must be released, a federal district judge ordered Sept. 1. Additional case documents will be released, U.S. District Judge Karon Bowdre explained in her order, but with redactions of sensitive information such as account numbers, which "could be used to facilitate financial crimes or mischief."
Scrushy is the first CEO to be charged for violating the Sarbanes-Oxley Act, which requires CEOs and CFOs to confirm personally the accuracy of corporate regulatory filings. In 2003, Scrushy was charged with 36 criminal counts for allegedly participating in fraud totaling $2.7 billion. He was found not guilty June 28.
Media organizations including The Reporters Committee for Freedom of the Press urged the court to release case documents held under seal to protect the American public's financial future. Calling the case "of historic and precedent-setting scope," the groups argued that the "administration of [the Sarbanes Oxley Act] must not take place shrouded in secrecy."
(U.S. v. Scrushy; . . . [more]
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NEWS MEDIA UPDATE THIRD CIRCUIT · August 29, 2005 · Secret courts
'Good cause' to support blanket gag order not shown
Aug. 29, 2005 · A desire to preserve an impartial jury pool does not justify a broad and sweeping gag order on all information in a pending civil case, a federal appeals court ruled Aug. 24.
A three-judge panel of the U.S. Court of Appeals in Philadelphia (3rd Cir.) overturned a federal trial judge's grant of a request by the Pennsylvania State Police Department for a gag order on all information regarding an employee's ongoing lawsuit. The appeals court ruled the department failed to show "good cause" for the order as required by law.
U.S. District Judge Sylvia H. Rambo issued the order in December 2004 to prevent the release of nonpublic documents to anyone other than the parties and their attorneys and agents without the other side's consent. The judge reasoned that disclosure of discovery documents to the press "could unduly prejudice the public, from which jurors for this litigation may be selected."
But such a concern is "exactly the type of broad, unsubstantiated allegation of harm that does not support a showing of 'good cause,'" Senior Judge Morton I. Greenberg wrote for the panel. Trial . . . [more]
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NEWS MEDIA UPDATE SOUTH CAROLINA · August 10, 2005 · Secret courts
Administrative court must give reasons for closure
Aug. 10, 2005 · A state administrative judge must explain in writing why it was necessary to close proceedings in a physician's appeal of disciplinary action, the South Carolina Supreme Court ruled Monday.
In reversing Administrative Law Court Chief Judge Marvin F. Kittrell's decision to shield proceedings and records involving Hilton Head cardiologist Dr. James D. Johnston from the public, the court ruled 5-0 that Kittrell "should have engaged in an analysis that balanced the interests of the physician and the public and should have explained the need for closure."
"I think it's a victory both for the newspaper that brought the suit and for the public of South Carolina," said media attorney John C. Moylan III of Wyche, Burgess, Freeman & Parham in Columbia, who helped represent The Island Packet.
The Hilton Head newspaper asked the state Supreme Court to intercede after Kittrell denied the paper's requests for access or for an opportunity to voice its objections to the secrecy surrounding the Johnston case. A coalition of national media groups led by The Reporters Committee for Freedom of . . . [more]
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NEWS MEDIA UPDATE FOURTH CIRCUIT · August 4, 2005 · Secret courts
Appeals court denies access to search-warrant affidavit
Aug. 4, 2005 · The government's interest in protecting an ongoing investigation of Islamic charities and businesses in the aftermath of Sept. 11, 2001, justified sealing search warrant affidavits containing details of the investigation, the U.S. Court of Appeals in Richmond, Va. (4th Cir.) ruled Monday.
A three-judge panel accepted Magistrate Judge Theresa Buchanan's reason for sealing the affidavits, although she did not voice the reason until after she sealed the documents, and refused to order the U.S. District Court in Alexandria, Va., to keep a public docket of search-warrant proceedings.
Rules requiring judges to base a decision to seal on specific factual findings and to state the reasons for rejecting alternative measures to sealing are "for the benefit of the court, not the public," and the reasons for sealing the affidavits in this case are "patently apparent" from the documents themselves, Judge H. Emory Widener Jr. wrote for the court.
The appeals court's decision "essentially allows the sealing of files with the wave of a hand," said attorney Charles D. Tobin, who represented two . . . [more]
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NEWS MEDIA UPDATE RHODE ISLAND · July 13, 2005 · Secret courts
Court proposes gag rule for parties, lawyers, court workers
July 13, 2005 · Federal court employees, litigants, their attorneys and others would be barred from disclosing nonpublic information about cases pending in Rhode Island federal court under a proposed court rule.
Local Rule 110 would forbid any attorney, party, court employee, intern, court security officer, U.S. marshal or deputy U.S. marshal from disclosing or disseminating "to any unauthorized person information relating to any pending case that is not a part of the public record" without a judge's permission. The proposed gag is part of a set of proposed court rules unveiled June 21 by the U.S. District Court in Providence, R.I.
Attorney Joseph V. Cavanagh Jr., who represents The Providence Journal, said he hoped "this was just a rough draft proposal," and that he is "prepared to accept" that the court is open to suggestions.
"The rule can't possibly mean that parties and counsel cannot comment on what's happening in the proceedings," Cavanagh, a partner at Blish & Cavanagh in Providence, said. "It would have to be modified to reiterate the importance of not talking about sealed . . . [more]
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NEWS MEDIA UPDATE WASHINGTON · July 7, 2005 · Secret courts
Public can see civil case documents filed with trial court
July 7, 2005 · Trial courts need a compelling reason to seal nearly any document filed in civil cases in the state of Washington, the state Supreme Court ruled last week.
The holding relied on the open courts provision of the Washington constitution, which states, "Justice in all cases shall be administered openly, and without unnecessary delay."
The June 30 decision stemmed from a medical malpractice case against Abbott Laboratories and others over a faulty blood test. In 2001, a jury awarded $16 million to David and Jennifer Rufer, who underwent an unnecessary hysterectomy, chemotherapy and partial lung removal after a test manufactured by Abbott falsely indicated she had cancer.
After the trial, Judge William L. Downing denied Abbott's motion to seal parts of depositions that were made public during the trial, as well as certain deposition exhibits and one trial exhibit, which Abbott said contained "highly sensitive, trade secret and proprietary information."
Downing, who found that Abbott showed no overriding interest in maintaining their secrecy, ordered that all exhibits and documents . . . [more]
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NEWS MEDIA UPDATE MINNESOTA · June 20, 2005 · Secret courts
State Supreme Court limits public access to court records
June 20, 2005 · The Minnesota Supreme Court has approved new rules that will restrict the public's ability to access court records online, and reduce the information now available in paper records.
Actions, case calendars, indexes, judgment dockets, judgments, orders, notices, and appellate court opinions will be available on the Internet beginning July 1 under the amended Rule 8 of the Rules of Public Access to Records of the Judicial Branch. All other electronic case records currently accessible to the public will only be searchable, in electronic or paper form, at the courthouse.
The amendments to the rules also aim to reduce the risk of identity theft by eliminating from both electronic and paper records personal identifiers, such as Social Security and financial account numbers, as well as documents such as tax returns and pay stubs.
Mark Anfinson, a lawyer for the Minnesota Newspaper Association who served on a 20-member Supreme Court advisory committee, said he was satisfied with the rule changes, although the court "didn't authorize as much public access as I had advocated." He remained . . . [more]
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NEWS MEDIA UPDATE FLORIDA · June 15, 2005 · Secret courts
Media win appeal for sealed documents in rape-murder case
June 15, 2005 · The judge presiding over the trial of the man who allegedly raped and killed an 11-year-old Sarasota, Fla., girl wrongly sealed portions of discovery documents that are usually made public under state law, an intermediate appellate court ruled Friday.
In reversing a trial court order, Florida's Second District Court of Appeal in Lakeland ruled that the judge, on his own initiative, incorrectly raised and relied on privacy concerns to withhold the documents from the public.
Joseph P. Smith, who is charged with kidnaping, assaulting and killing Carlie Brucia, had asked the trial court to issue a blanket order sealing all discovery materials -- information turned over to the defense by the prosecution -- to avoid prejudicial pretrial publicity and preserve Smith's right to a fair trial. Information related to a criminal investigation generally becomes public under section 119.07 of Florida law once the state discloses it to a criminal defendant. The Times Publishing Co., which owns the St. Petersburg Times, was allowed to intervene in the case to oppose Smith's motion.
The trial . . . [more]
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NEWS MEDIA UPDATE MINNESOTA · May 20, 2005 · Secret courts
Complaint filed against judge for quotes in newspaper
May 20, 2005 · A longtime Minnesota trial judge has asked the state Board on Judicial Standards to dismiss a formal complaint it filed against him last month for allegedly making an improper public comment on a pending case.
Hennepin County District Judge Kevin S. Burke denied that his comments in a Nov. 23, 2004, Minneapolis Star Tribune article about Julius and Laura Nolen, two local prosecutors charged with felony drug possession, violated the state Code on Judicial Conduct.
The paper quoted Burke, who has presided over cases that both Laura and Julius Nolen have prosecuted, describing their demeanor in the courtroom. Burke is not presiding over the criminal case against the couple.
"He was very professional, very committed," Burke told the Star Tribune, referring to Assistant Hennepin County Attorney Julius Nolen. "He did some very difficult cases [and was] very sensitive to victims." As to Nolen's wife Laura, an assistant Minneapolis city attorney, Burke said he thought "she was very professional, very caring and very committed."
The Board on Judicial Standards sent Burke . . . [more]
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NEWS MEDIA UPDATE THIRD CIRCUIT · May 3, 2005 · Secret courts
Publication of juvenile arrestee's name may not be punished
May 3, 2005 · The First Amendment protects a newspaper from liability for publishing information about a juvenile arrestee, even when the police broke the law in disclosing the information, the U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled April 26.
The court held that because the information was true, the paper did not break the law to obtain it, and it concerned a matter of public significance, punishing the newspaper was not the most narrowly tailored way to protect the juvenile arrestee's identity without intruding on First Amendment freedoms.
In November 2000, then 15-year-old James L. Bowley was arrested on suspicion of raping a 7-year-old girl he was babysitting. Police Officer Fred Balsley disclosed details of the arrest to the Uniontown, Pa., Herald-Standard, which published a short article about the arrest. Bowley was not convicted, and the Court of Appeals noted that it is unclear if he was even charged with the crime.
Bowley sued the city of Uniontown, the police department, Balsley and the Herald-Standard for violating a Pennsylvania law prohibiting the . . . [more]
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NEWS MEDIA UPDATE CALIFORNIA · April 29, 2005 · Secret courts
Sealing of records upheld in Jackson sex abuse case
April 29, 2005 · Michael Jackson's celebrity status partially justified a trial judge's order to seal a search warrant affidavit, grand jury transcript and other court documents to avoid tainting potential jurors in the pop star's child sexual abuse case, a California appellate court ruled Wednesday.
The California Court of Appeal in Ventura struck down a challenge filed in July by NBC and nine other media groups, claiming Los Angeles Superior Court Judge Rodney S. Melville failed to follow proper procedure in sealing various court documents in the Jackson case. The media coalition, which also includes the Los Angeles Times, The New York Times and The Associated Press, had argued there is no "celebrity exception" to the First Amendment.
But Melville "carefully balanced the defendant's right to a fair trial and the public's right to know," the appeals court concluded in its April 27 decision. It upheld the sealing orders for all documents except Jackson's indictment, which it said should be released with the names of Jackson's alleged co-conspirators redacted.
"We are pleased that . . . [more]
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