D.C. Cir. considers secrecy of material witness proceedings

When the government asks a judge to involuntarily place a trial witness in federal custody, should the government’s request — and the court’s decision — be presumptively open to public scrutiny? That was the question considered today when the U.S. Court of Appeals for the District of Columbia heard oral arguments in the recently unsealed case In re: U.S. v. Brice.

The federal material witness statute allows for the arrest and detention of material witnesses whose testimony at a criminal trial may be difficult to otherwise secure. By law, a court may authorize such a detention if the party seeking to hold the witness in federal custody demonstrates that the witness’s appearance at trial is in doubt.

The federal government invoked the statute in order to arrest and detain two witnesses in preparation for the trial in U.S. v. Brice, a case involving charges of child prostitution and trafficking-related crimes. According to the government, the district court allowed the government to detain the two witnesses, both of whom were minors at the time, in order to assure their appearance at trial, and to protect the witnesses' safety and emotional well-being. The material witness proceedings were closed to the public and the defendant, Jaron Brice.

One of the detained witnesses testified at Brice’s trial and Brice was convicted of several charges. (The government dropped the charges related to the other detained witness.) In a subsequent re-sentencing hearing, the district court referenced information from the closed material witness proceedings. When Brice requested access to the material witness materials, the district court denied the request.

Brice separately appealed the sentence and the refusal to unseal the material witness proceedings. The appeal of the sealing order was itself originally sealed. But in March, the D.C. Circuit unsealed the appeal, allowing public access to the briefing, most of the appellate record and Thursday’s oral argument.

In the recently unsealed briefing, Brice’s attorney, Assistant Federal Public Defender Jonathan Jeffress, asserted that, under the First Amendment and the common law, post-indictment material witness proceedings should be presumptively open to the public. Such proceedings are no different from other pretrial criminal proceedings that the U.S. Supreme Court has held are presumptively open, where the theory is that allowing public access to such proceedings promotes confidence in the judicial system and facilitates better oversight, Jeffress’ briefing argued. Calling such proceedings “rife with potential for governmental abuse,” Jeffress' briefing asserted that it is “difficult to imagine a context where public scrutiny of government is more important.”

In contrast, the government’s briefing urged the court not to recognize a First Amendment right to attend material witness proceedings. The government asserted that there is neither a long history of openness in material witness proceedings nor a logical reason for such proceedings to be open, emphasizing the potential pitfalls that may occur as a result of opening the proceedings to the public.

In particular, the government warned that opening the proceedings to the public would violate the privacy rights of the material witnesses and would enable criminal defendants to use the public access as a discovery mechanism to learn more about the government’s investigation.

Questioning by the three-judge panel on Thursday suggested some receptiveness to Brice’s argument that a First Amendment right of access may apply to material witness proceedings, but questioned whether procedural matters and countervailing interests supported the closure of the proceedings in this case. Picking up on a point in the government’s briefing, Circuit Judge Brett Kavanaugh noted that the district judge emphasized that the witnesses were minors and that the hearings referenced matters of highly personal nature.

Jeffress acknowledged those concerns, but emphasized the need for courts to narrowly tailor any restriction in order to protect the public’s right of access. He pointed specifically to the sealing of the district court’s legal reasoning and conclusions as the type of information that should be made public. The high stakes involved in material witness proceedings — namely, the loss of liberty — made public access all the more important, he said. “The First Amendment [right of access] is at its very strongest,” Jeffress said, when judicial proceedings concern “detaining people.” Jeffress also emphasized the importance of district courts following procedural steps to ensure that no more material is sealed than is necessary to protect any countervailing interests.

Circuit Judge Judith Rogers questioned the government about the “troubling notion” that the court can decide to detain witnesses for their own good, asking the government what mechanisms were available to obtain a more detailed reason for the district court’s decision.

U.S. Department of Justice Attorney Matthew Nicholson, arguing for the government, stated that any concerns about the material witness proceedings could be addressed through means other than a First Amendment right of access, such as a due process challenge by the defendant or the appeal process available to material witnesses themselves.

Nicholson also argued that, to the extent a First Amendment right of access did apply, the district court was correct in sealing the records here in light of the privacy concerns of the juvenile witnesses in this case.

The court took the case under advisement.