Capital Secrets … 200 Cases in D.C. Entirely Sealed

From the Summer 2004 issue of The News Media & The Law, page 25.

Three weeks after the U.S. Court of Appeals in New York City (2nd Cir.) ruled that secret dockets violate the First Amendment, the Public Defender Service of Washington, D.C., revealed that nearly 200 criminal cases are entirely under seal in District of Columbia Superior Court.

“Sealed record may be the most popular name in our courthouse records,” lawyers from the Public Defender Service said in a June 24 motion to the D.C. Court of Appeals. The motion included an attachment containing a 16-page list of sealed cases gleaned from a computerized database maintained by the Superior Court.

The appeals court responded on July 22 by issuing a three-page order reminding trial judges of the “strict conditions governing any request to seal a criminal record or close a criminal courtroom.” Judges should close a hearing only when necessary to protect a “compelling interest,” the appeals court said, and they should first examine alternatives to closure.

But the appeals court said nothing about the status of the nearly 200 sealed cases identified in the public defenders’ motion. Those cases were not technically before the court, which addressed only the exclusion of public defender Janet Mitchell from a hearing before Superior Court Judge John H. Bayly Jr.

Nevertheless, the existence of so many sealed cases — plus an unknown number of cases in which particular hearings or pleadings have been sealed — demonstrates a “flagrant and routine disregard” for the public’s First Amendment rights, public defender Sandra Levick argued in court documents.

On May 6, Bayly expelled Mitchell from the courtroom just prior to a hearing in which Stephen Burciaga, a co-defendant of Mitchell’s client William Nellson, was set to enter a guilty plea. Mitchell wanted to observe the proceeding, which would normally be open to the public, because it was likely that Burciaga had agreed to testify against her client.

Bayly has since conceded that the hearing was closed in error, and has ordered the unsealing of records in the case. But the larger issue of the routine sealing of cases in D.C. Superior Court remains unresolved.

“The unconstitutional deprivation of the public’s right of access to criminal proceedings and criminal records appears to be endemic in the superior court,” Levick argued.

— JM