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An oft-cited case

From the Spring 2006 issue of The News Media & The Law, page 13. A 1991 federal appeals court decision…

From the Spring 2006 issue of The News Media & The Law, page 13.

A 1991 federal appeals court decision related to the government’s case against then-Washington, D.C. Mayor Marion Barry &#151 arrested in 1990 after he was videotaped smoking crack cocaine in a D.C. hotel room &#151 is cited repeatedly in court filings seeking to keep cases secret in Washington’s U.S. District Court.

Although the case centers on sealing &#151 closing cases that are assigned public docket numbers &#151 the ruling by the U.S. Court of Appeals in Washington, D.C., contains a footnote pertaining to keeping cases off the docket with no public case number assigned.

The case, Washington Post v. Robinson, started when James McWilliams pleaded guilty in open U.S. District Court in 1990 to one count of aiding and abetting possession of crack cocaine. The U.S. attorney asked that the plea agreement be filed under seal, although no motion to do so had been filed or docketed in advance, and the government had provided no justification for sealing the plea agreement when it made its oral request.

The Washington Post, seeking to obtain access to the plea agreement sought to intervene in the case. Magistrate Judge Deborah Robinson ruled &#151 and then-Chief Judge Aubrey E. Robinson agreed on review &#151 that portions of the plea agreement could remain under seal.

A panel of three appellate judges, including Ruth Bader Ginsburg (who joined the U.S. Supreme Court two years later in 1993), ruled that minimum procedures necessary to protect the First Amendment right of access to plea agreements and related documents were not followed, and the government did not meet its burden of demonstrating a compelling interest to justify sealing.

On the matter of public docketing, the court ruled that “notice of the written motion to seal must be entered on the public docket, and interested individuals must be afforded an opportunity to be heard before the trial court ultimately rules on the motion and makes specific findings on the record.”

A footnote leaves open the possibility of keeping cases off the public docket.

“Upon a specific showing by the government of a compelling interest in confidentiality, for example that an individual’s life or safety may be threatened, the trial court may postpone placing entry on the public docket regarding a motion to seal the plea agreement.”

The footnote continues that the government must still show, and the court must find, compelling reasons for secrecy, something that appears to be missing from two criminal cases that recently returned to the Washington federal court’s public docket involving Rosa Chavez, a driver’s license official who received bribes, and Nicole Williams, who filed a false income tax return. &#151 KBM