Secret courts
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NEWS MEDIA UPDATE ALABAMA · March 15, 2006 · Secret courts
Courts may not expunge criminal records
March 15, 2006 · A state court's practice of removing criminal files from the public record to prevent acquitted defendants from being harmed is unlawful and impairs the public's right to a transparent judicial system, the Supreme Court of Alabama ruled Friday. The unanimous decision forces open hundreds of expunged state court records that, to the public, currently do not exist.
Mobile, Ala., Municipal Court Judge James H. Lackey and Administrator Pete Pedersen failed to prove that laws allowing criminal justice agencies to modify records authorize courts to delete entire criminal files, a nine-judge appellate panel ruled.
"Here, the existence of, and thus all the information contained in, entire files on criminal defendants have been hidden from the public," Judge Champ Lyons Jr. wrote for the court. "[T]he municipal court has admitted that it has not been purging, modifying, or supplementing records only to the extent needed to correct inaccuracy or incompleteness. Rather, it has simply been removing the existence of its records from public databases based on no set standard. The [law] does not authorize . . . [more]
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NEWS MEDIA UPDATE WASHINGTON · March 15, 2006 · Secret courts
New rule to make sealing court cases more difficult
March 15, 2006 · The Washington Supreme Court approved rules that will make it harder for judges to seal files in state court cases. Under the revisions, judges should seal records only if "compelling privacy or safety concerns'' outweigh the public interest in the court record.
The change, effective July 1, came on the heels of a Seattle Times series that revealed that at least 420 civil cases have been improperly sealed in Washington's King County Superior Court since 1990 in lawsuits about medical malpractice, personal injury, domestic violence, child molestation and other topics. Although the high court approved the change only days after the series began, the revision has been in the works since 2003.
General Rule 15 makes it clear that a party's desire to keep records private is not a good enough reason for secrecy and that in lieu of blocking access to entire files, judges should try to remove sensitive information. The new rule also requires judges to explain in writing their reasons for sealing a case.
The current rule already demands "compelling circumstances" before files should be . . . [more]
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NEWS MEDIA UPDATE FOURTH CIRCUIT · March 14, 2006 · Secret courts
Media seek access to Moussaoui trial evidence
March 14, 2006 · A coalition of nine news organizations has asked the U.S. Court of Appeals in Richmond (4th Cir.) to order a federal district court to release evidence in the death penalty trial of confessed September 11 plotter Zacarias Moussaoui. The unusual request comes one month after the organizations sought to intervene in the case.
The media seek exhibits entered into evidence and transcripts of conversations between U.S. District Judge Leonie M. Brinkema and lawyers made in open court but outside the presence of the jury. Brinkema on Friday affirmed her Feb. 14 orders that neither exhibits nor bench conference transcripts will be released until the trial ends. She did not give the public notice or a chance to be heard on the matter before her initial orders.
With Moussaoui's sentencing trial under way, the news organizations said they had no choice but to ask the appeals court for a writ of mandamus, which would order the U.S. District Court in Alexandria, Va., to release the requested materials.
Writ petitions are granted only in extraordinary situations. "We think this is just such a . . . [more]
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NEWS MEDIA UPDATE WASHINGTON, D.C. · March 3, 2006 · Secret courts
Assault conviction stands despite secret testimony
March 3, 2006 · An Air Force investigating officer's order closing an October 2003 pretrial hearing during two victims' testimony in a rape case was unlawful but did not affect the outcome of the case, a three-judge panel of the U.S. Air Force Court of Criminal Appeals has unanimously ruled.
Defense attorneys failed to prove that closing the courtroom violated Airman First Class Jess M. Davis' right to a public pretrial investigative hearing or that a military judge's error in failing to direct a new pretrial hearing harmed Davis' case, a three-judge appellate panel unanimously ruled in January.
"There is no evidence that the trial defense counsel's pretrial preparation was impeded because [the victims] did not testify in an open Article 32 hearing," Judge Col. Craig A. Smith wrote for the court. And "there is no evidence that their testimony would have changed in any material respect had they testified at a second Article 32 hearing, even one open to the public."
Article 32 hearings are military pretrial proceedings similar to civilian grand jury investigations. An investigating officer, typically a . . . [more]
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NEWS MEDIA UPDATE TEXAS · March 1, 2006 · Secret courts
Committee orders judges to release e-mail with lawyer
March 1, 2006 · Four Texas judges must turn over to a newspaper e-mail between themselves and a lawyer under a rule that is the judicial equivalent of the state open records law.
A special panel of judges assigned to the case by the state Office of Court Administration ordered the judges to produce the e-mail messages last week because they deal with a matter of legitimate public concern.
The release of some e-mail messages uncovered a "fairly substantial problem in the Brazos County judiciary," said Joel White, an attorney representing The (Bryan-College Station) Eagle, which originally requested the records under the Texas Public Information Act. "Some of the e-mails were frankly pretty shocking in terms of how lawyers could be treated in this particular judge's court."
Judge Randy Michel, one of the five judges whose e-mail was requested, resigned in December after the District Attorney's Office learned about messages discussing a case in his courtroom with the attorney.
The Eagle filed a Texas Public Information Act request in November for e-mail messages between . . . [more]
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NEWS MEDIA UPDATE SEVENTH CIRCUIT · February 27, 2006 · Secret courts
Federal court reprimanded for issuing secret opinions
Feb. 27, 2006 · A Wisconsin federal judge's order sealing two judicial decisions in a trade secret case illegally prevents the public from scrutinizing the judiciary, a three-judge panel of the U.S. Court of Appeals in Chicago (7th Cir.) unanimously ruled Wednesday.
The appellate panel ordered the decisions, from the federal district court in Milwaukee, to immediately be opened, ruling that no legal authority or evidence justified the decisions' closure. The panel also warned all lower courts not to issue secret opinions, noting that the U.S. Supreme Court issues public opinions in all its cases, even those involving national security secrets.
"We hope never to encounter another sealed opinion," Judge Frank H. Easterbrook wrote for the panel. "What happens in the federal courts is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look . . . [more]
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NEWS MEDIA UPDATE NEW HAMPSHIRE · February 24, 2006 · Secret courts
Task force recommends three-tiered court access system
Feb. 24, 2006 · Only certain types of New Hampshire court records -- including basic criminal and civil case information, court calendars and dockets -- would be available on the Internet under a three-tiered access system recommended Tuesday to the state Supreme Court.
Some court records would be available online, some would be available only in person at courthouses and others would not be available at all under the proposed system, which the New Hampshire Supreme Court Task Force on Public Access to Court Records has worked on since June 2004. State court records are not online now.
"The court has recognized that technological advances offer new promises and new dangers," Superior Court Associate Justice Larry M. Smukler wrote in a letter accompanying the report. He and others on the task force, which includes judges, lawyers, journalists and members of the public, attempted to balance the state's commitment to open government with its citizens' right to privacy, the report says.
The new system would not change the public status of any records. However, it would preserve what is known as . . . [more]
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NEWS MEDIA UPDATE EIGHTH CIRCUIT · February 24, 2006 · Secret courts
Rape conviction overturned due to secret testimony
Feb. 24, 2006 · A Minnesota federal judge's order barring the public from hearing victim testimony during a 2003 rape trial violated the defendant's right to a public trial, warranting reversal of his conviction, the U.S. Court of Appeals in St. Louis (8th Cir.) ruled Wednesday.
Prosecutors failed to prove that closing the courtroom did not violate Ralph Thunder's Sixth Amendment right to a fair trial or that the trial judge's error in excluding the public was harmless, a three-judge appellate panel unanimously ruled.
"We have an open government, and secret trials are inimical to the spirit of a republic, especially when a citizen's liberty is at stake, " Judge Morris A. Arnold wrote for the court. "The public, in a way, is necessarily a party to every criminal case."
The decision releases Thunder from more than a year of confinement in the federal penitentiary in Leavenworth, Kan.
"The closure of the courtroom was entirely arbitrary," said Thunder's attorney, Paul Engh. "When it happened at trial I was taken aback because I'd never seen anything like that. The court excluded members of . . . [more]
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NEWS MEDIA UPDATE WASHINGTON, D.C. · February 7, 2006 · Secret courts
Portions of redacted opinion in CIA leak case released
Feb. 7, 2006 · Significant sections of a previously redacted judicial opinion were released Friday after an appellate court ruled that certain information about grand jury testimony in the CIA leak investigation is no longer secret.
Dow Jones Inc. had filed a motion asking the U.S. Court of Appeals in Washington, D.C., to release eight redacted pages from Judge David S. Tatel's concurring opinion in a February 2005 court ruling that then-New York Times reporter Judith Miller and Time magazine's Matt Cooper must testify before a grand jury that was investigating who leaked the identity of CIA operative Valerie Plame to the press.
Judge Tatel, in one of three concurring opinions written by the three-judge panel, found that there is a common law privilege but that special prosecutor Patrick Fitzgerald had overcome it. Tatel explained how Miller's testimony was critical to the investigation, how the grand jury had exhausted all other available resources, and that the public interest favored compelling her testimony. In doing so, eight pages of his decision were sealed from the public to preserve . . . [more]
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NEWS MEDIA UPDATE NEW MEXICO · January 31, 2006 · Secret courts
Judges had right to criticize officials in newspaper
Jan. 31, 2006 · Two New Mexico municipal judges will not be disciplined for criticizing city prosecutors and police in a local newspaper in 2004, the state Supreme Court ruled last week.
The court ruled 4-1 Wednesday to dismiss a state Judicial Standards Commission petition against Las Cruces Municipal Court Judges Melissa Miller-Byrnes and James Locatelli, who criticized city officials in the Las Cruces Sun-News in June 2004.
The commission sought a 30-day suspension for Miller-Byrnes and a fine for Locatelli as discipline for what it called in a legal filing "a pattern of disparaging comments . . . against specific leaders and individuals in city government."
Commission attorney Elizabeth Garcia argued that the judges' comments eroded public confidence in the judiciary and illustrated bias against prosecutors. Chief Justice Richard Bosson disagreed, and said the judges' remarks "could be seen as fighting for the judiciary, trying to get the resources that the court needs," the Sun-News reported Thursday.
Although the judges based their ruling on standards of judicial conduct . . . [more]
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NEWS MEDIA UPDATE CALIFORNIA · January 24, 2006 · Secret courts
Appellate court upholds public access to divorce records
Jan. 24, 2006 · A California law used to seal documents in a high-profile divorce case is unconstitutional under the First Amendment, the state Court of Appeal ruled Friday.
The Second District Court of Appeal in Los Angeles unanimously agreed to uphold a lower court decision that public access to divorce proceedings is constitutionally protected. The appeals court said the law, section 2024.6 of the California Family Code, went too far in allowing entire documents to be sealed because they contain financial details.
"The First Amendment provides a right of access to court records in divorce proceedings," Judge Paul Boland wrote for a unanimous three-judge panel. "While the privacy interests protected by (the law) may override the First Amendment right of access in an appropriate case, the statute is not narrowly tailored to serve overriding privacy interests."
Under the law, courts are required to seal, upon request of either party, any divorce-related documents that list a person's financial assets and liabilities or provide the location or any identifying information about those assets and . . . [more]
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NEWS MEDIA UPDATE MASSACHUSETTS · January 19, 2006 · Secret courts
Court records in abused girl's life-support case stay secret
Jan. 19, 2006 · Court proceedings and records in the case of a severely abused 11-year-old girl -- who the court ruled could be removed from life support -- will remain closed, the Supreme Judicial Court of Massachusetts ruled Tuesday.
The high court, which upheld a lower court order keeping the case secret, cited a state law directing that juvenile care and protection proceedings be closed to the public. Although Massachusetts courts have found a common-law right of access to judicial records and a First Amendment right of access to records in criminal cases, none of those cases involved juvenile court records, Justice John Greaney wrote for the four justices who joined the majority.
"The result is unbelievable," said Edward McDonough, one of the attorneys seeking access to the case. "It's all been done behind closed doors -- the government approving the actions of the government when the life of a child is at stake. This is a shocking degree of government secrecy."
Two justices concurred with Greaney, but wrote a separate opinion questioning whether a child's life support hearing should be closed . . . [more]
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NEWS MEDIA UPDATE MARYLAND · January 13, 2006 · Secret courts
Appeals court changes inadvertent rule denying access
Jan. 13, 2006 · Public access to possibly thousands of criminal cases in Maryland was restored Tuesday when the Court of Appeals, the state's highest court, rewrote a rule that unintentionally sealed cases involving child abuse or neglect.
The rule, passed in October 2004 and implemented last year, required custodians of records to "deny inspection of" any "case record concerning child abuse or neglect."
Some court clerks interpreted the rule to require automatic sealing of any civil or criminal case that included an allegation of child abuse, regardless of the other charges. Members of the public not only couldn't see such files, they couldn't even be told what the charges were or that the case existed, The (Annapolis) Capital reported.
Attorney Nathan Siegel, who argued in favor of narrowing the rule during a court hearing Tuesday, said though the prohibition was "clearly unintentional," the rule was extremely broad.
"You had all cases that had any relationship to child abuse or child sexual abuse being closed in their entirety," Siegel said in an interview. His client, . . . [more]
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NEWS MEDIA UPDATE SECOND CIRCUIT · January 13, 2006 · Secret courts
Court ordered to review sealed records request
Jan. 13, 2006 · The U.S. Court of Appeals in New York (2nd Cir.) ordered a district court to immediately decide whether to open hundreds of pages of sealed documents in a civil lawsuit, overturning the lower court's decision to wait until it had ruled whether to dismiss the case.
Two media companies have been waiting 18 months for the court to open sealed documents concerning a request by a shopping mall group and its founder to dismiss a fraud case against them. Judge Robert A. Katzmann, writing for the unanimous three-judge panel, ordered the U.S. District Court in Syracuse, N.Y., to act quickly because of "the importance of immediate access where a right to access is found."
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," Katzmann wrote.
A "strong presumption of access attaches" to documents submitted in connection with a request to dismiss a case, "under both the common law and the First Amendment," Katzmann wrote. Deciding a case, "is a formal act of government, the basis of which should, absent exceptional circumstances, . . . [more]
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NEWS MEDIA UPDATE NEW HAMPSHIRE · January 4, 2006 · Secret courts
Financial information in divorce cases accessible
Jan. 4, 2006 · The Supreme Court of New Hampshire on Friday struck down part of a law that withheld financial affidavits in divorce cases unless the public interest outweighed the privacy interest in keeping the information secret.
The section of the law is unconstitutional because it requires the proponent of disclosure to prove the public's interest in the records' release, Justice James E. Duggan wrote for the court. It also shuts down the public's right of access to a category of court records, and is not written narrowly enough "to serve the allegedly compelling interest of the State in protecting its citizens from identity theft," he wrote.
New Hampshire is one of only a few states whose constitution explicitly provides a right of access to court proceedings and records.
"A generalized concern for personal privacy is insufficient to meet the State's burden of demonstrating the existence of a sufficiently compelling reason to prevent public access," wrote Duggan. "The State has offered no empirical evidence linking identity theft to court documents" . . . [more]
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NEWS MEDIA UPDATE MISSOURI · January 3, 2006 · Secret courts
High court orders juvenile murder case open
Jan. 3, 2006 · A circuit court judge may not close all hearings in a case involving a child charged with a crime such as murder that is of great public interest and would be a severe felony in an adult court, the Supreme Court of Missouri ruled Dec. 20.
The court ruled that a Missouri law excluding the public from juvenile court proceedings does not apply in cases "where the child is accused of conduct which, if committed by an adult, would be considered a Class A or B felony." The court rejected Judge John F. Garvey's argument that the public is permitted to attend only a pre-trial certification hearing where it is determined whether the juvenile will be charged as an adult. The law "deals specifically with public access to the proceedings and contains no language limiting access to 'the hearing' or the 'certification hearing,'" wrote the court.
The St. Louis Post-Dispatch and KSDK-TV asked the high court to prevent Garvey from closing all proceedings in the case, citing the law mandating open proceedings where juveniles are charged with severe crimes.
"While juvenile proceedings have for . . . [more]
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NEWS MEDIA UPDATE RHODE ISLAND · December 14, 2005 · Secret courts
Federal court rejects proposed gag rule
Dec. 14, 2005 · A proposed rule that would have barred federal court employees, litigants, their attorneys and others from disclosing nonpublic information about pending cases in U.S. District Court in Providence, R.I., has been rejected as redundant by the court.
The court deleted the draft rule because it was "worded too broadly and could be construed in a manner that was not intended," Chief Judge Ernest C. Torres explained in a notice posted on the Court's Web site Monday. Current statutes, rules, court orders, or Rules of Professional Responsibility already prohibit the release of the information that the court was concerned about, according to the notice, so "attorneys, parties and others already would be on notice that the disclosure of such information was prohibited."
Proposed Local Rule 110 would have 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 . . . [more]
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NEWS MEDIA UPDATE WASHINGTON, D.C. · December 8, 2005 · Secret courts
Portions of CIA leak decision can be unsealed
Dec. 8, 2005 · Patrick Fitzgerald, the special counsel in the CIA leak investigation, signaled in a court filing that he does not object to unsealing specific portions of the redacted eight pages of the Feb. 15 decision ordering Time Magazine's Matthew Cooper and Judith Miller, formerly of The New York Times, to testify before a grand jury. He also said that information on the eight pages is no longer classified.
However, in his motion filed before the U.S. Court of Appeals for the District of Columbia on Dec. 2, Fitzgerald said that only material on the redacted pages that deals with the indictment of I. Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, should be released. The remaining information should remain shrouded to protect the "integrity of the ongoing investigation" and the grand jury, he said.
Fitzgerald was responding to a motion filed by Dow Jones Inc, publisher of The Wall Street Journal, on Nov. 2 asking the court to unseal eight pages of Judge David S. Tatel's February opinion. In it, Tatel wrote in great detail "to explain his conclusion that the . . . [more]
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NEWS MEDIA UPDATE FLORIDA · December 1, 2005 · Secret courts
Crime scene, autopsy photos must be shown to media
Dec. 1, 2005 · The Supreme Court of Florida Wednesday refused to review a state appeals court's decision granting media access to videotape and photographs of a a murder scene and subsequent autopsy, letting stand the appeals court's ruling that the trial court had improperly withheld the materials from the press. An emergency appeal to U.S. Supreme Court Justice Anthony Kennedy to stay the decision was also denied the same day.
A three-judge appellate panel for the Second District Court of Appeal of Florida ruled that the Circuit Court in Sarasota abused its discretion Nov. 16 when it said four media organizations could not inspect photographs and a video that were presented into evidence in the case.
"Secret evidence is the hallmark of an oppressive regime; it is not a policy generally acceptable in a free society with courts that must be open to the people to assure the legitimacy of those courts and the fairness of the proceedings that occur therein," Judge Chris W. Altenbernd wrote. Although the photos were "extraordinarily distressing," he wrote that in this case "these photographs are evidence in a . . . [more]
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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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