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From the Spring 2001 issue of The News Media & The Law, page 57.

From the Spring 2001 issue of The News Media & The Law, page 57.

The U.S. Court of Appeals in San Francisco (9th Cir.) ruled in an unpublished January opinion that a trial court erred in redacting from the court record letters filed in support of a criminal defendant’s motion to reduce his sentence.

Mark Nathanson filed a motion to reduce his criminal sentence. He attached two letters to the motion. The letters were intended to demonstrate that Nathanson had cooperated with the government in the investigation and prosecution of other crimes.

Both the government and Nathanson asked the trial judge to redact portions of the letters, citing privacy interests. In December 1999, the trial court found that the redaction should be implemented to protect the safety of the defendant and also to protect the reputations of persons who were accused of crimes even though the government concluded that there was no evidence to support such claims.

The Sacramento Bee asked that the redacted portions of the letters be made available, arguing that it had a First Amendment right of access to those court records.

The Ninth Circuit remanded the case with its January ruling, finding that the trial court did not properly make factual findings to justify the redactions. It instructed the trial court to make a factual finding about whether privacy interests would support the redaction

The Ninth Circuit recognized that a presumption of openness applies to the letters because they were attached to a Rule 35 motion filed with the court. Thus, any attempt to redact the letters “must survive a strict scrutiny,” the court said.

The court then determined that the trial court had based its decision solely on conclusory assertions, without finding any facts to support them. The Ninth Circuit noted that there was no evidence that Nathanson’s safety was in danger, and the trial court did not adequately describe what danger there would be to others’ reputations. –AG