Federal court hears newspaper's appeal of court closure

The U.S. Court of Appeals in New Orleans (5th Cir.) heard arguments Monday in an appeal brought by Hearst Newspapers LLC challenging the propriety of closing a criminal sentencing hearing without prior notice to the public.

The appeal arises out of the Texas federal district court proceedings in United States v. Cardenas-Guillen. In February, the district court sentenced defendant Oziel Cardenas-Guillen on the basis of a plea agreement entered on drug, conspiracy and threat charges, according to the government's brief. The court sentenced Cardenas-Guillen to a 25-year prison term and other conditions, including the forfeiture of $50,000,000 to the government.

The sentencing hearing was closed to the public and was not announced to the media or public prior to its occurrence for security reasons, according to the court. After a reporter for the Houston Chronicle learned of the closed hearing, the paper objected, arguing that it had a right to notice and an opportunity to be heard on the court's decision to close the sentencing. The district court denied the paper's request.

Hearst, owner of the Chronicle, appealed. A recording of Monday's oral argument, which is available on the Fifth Circuit's website, suggests that the appellate court's panel members are weighing the proper balance between giving district court judges discretion to manage their courts and security concerns on one hand, with the rights of the press and public to access to the courts on the other.

Hearst attorney Jonathan Donnellan acknowledged that the sealed records may have demonstrated that the sentencing hearing itself presented serious security concerns. But he urged the appellate court to distinguish between a district court’s ultimate decision to close a hearing and following the proper process that leads to that decision.

“It very well may be that the sealed filings that were before the court justified sealing the sentencing and may justify, if that’s the case, a lack of notice for that sentencing,” Donnellan said. “But what we are saying is that there needs to be notice and an opportunity to be heard before that sentencing. So there should be another hearing before that, which the public is given notice of," in order to allow the public to appear and make their arguments for why the sentencing hearing should be open, Donnellan argued.

Assistant U.S. Attorney Toni Trevino, appearing on behalf of the government, argued that the trial court's actions were proper. “The court followed the proper procedural and substantive law regarding the closing of the proceedings,” Trevino said.

But Judge Catharina Haynes expressed concern about allowing courts to make such determinations without hearing from the other side. While acknowledging the need for deference to the trial courts, Haynes remarked that it was a "little scary" to leave so much discretion to a trial court in secret proceedings. “I don’t want a rule where the district judge can just decide, with no one knowing why, when, where what, to close a courtroom, without anyone being heard on it,” she commented.

Trevino responded that the extraordinary circumstances and security concerns in the district court, which she asserted were explained in the sealed filings, justified delaying notice of the hearing to the public. “This is a very unique case," Trevino emphasized later in the argument.

The court did not indicate when it would issue a ruling in the appeal.