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2nd Cir: Trial proceedings transcript to remain sealed

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  1. Court Access
A federal appellate court in New York has rebuffed the efforts of a journalist to unseal a transcript of unspecified,…

A federal appellate court in New York has rebuffed the efforts of a journalist to unseal a transcript of unspecified, closed court proceedings in a high-profile criminal trial.

The U.S. Court of Appeals in New York City (2nd Cir.) held in early June that journalist Jerry Capeci could not get access to a transcript from a part of the fraud trial of Milana Murcia.

Capeci, who operates the website Gang Land News, was covering the trial when he learned that the court had sealed a transcript of a closed proceeding held earlier in the trial, according to a brief submitted on his behalf in the case. He sent a letter asking the trial court to unseal the transcript, but the court refused. The court also sealed the filings by the parties on the matter, as well as the opinion denying the order.

Capeci, whose website bills him as the foremost expert on the American Mafia, appealed the order with the help of students taking part in Yale Law School’s Media Freedom and Information Access Practicum.

“These kind of access matters are definitely a challenge to litigate because you’re kind of shooting blanks,” said Nathan Siegel, an attorney who supervised the students. “You’re arguing to unseal something and you have no idea — maybe some surmise — but you don’t know for sure what it is or why it was sealed.”

The Second Circuit affirmed the trial court’s order, which remains under seal, giving little insight into the government’s reasons for wanting the transcript sealed and why the court thought it was appropriate.

“We find no error with the district court’s reasons for sealing,” the appellate court said.

In their brief, the students argued the First Amendment’s right of access to judicial proceedings and transcripts “is essential to the healthy functioning of our democracy,” and the Supreme Court “has announced rigid requirements for when a judicial proceeding may be closed to the public.”

If a court decides sealing is appropriate, redacting the transcript is better than sealing it entirely, the students' brief said. They also pointed out that the Second Circuit recently held that the “burden to show a compelling interest is heaviest when seeking to seal a record ‘totally and permanently,’” citing United States v. Doe, a 2009 case.

The government’s brief was heavily redacted and even had blacked out case citations. The public version of the brief said there was no other option in this case.

The unusual breadth of the sealing order is what attracted the students’ attention, Siegel said. “Given the kind of case it was, given what might normally seem to have been at stake, and the fact that you had not only the entire hearing transcript under seal many months after this hearing occurred, and you had the judge’s reasoning under seal and all the arguments, that’s what attracted their interest.”

Although the Second Circuit's short "Summary Order" affirmed the trial court's sealing, it reminded the government “that should the conditions for unsealing set forth in the sealed order come to pass, it is under a continuing obligation to inform the district court.” Such a reminder appears to be consistent with Justice Department regulations, which generally require the government to review orders sealing records of closed proceedings every 60 days, to see if the reasons for the closure are still applicable. If they are not, the government is supposed to move to have the records unsealed.