Judge denies request to unseal Bernie Fine search warrants

Affidavits for search warrants for the home, office, locker and safe deposit boxes of an ex-college basketball coach accused of sexual abuse will remain shielded from public view, at least for now, after a federal judge denied four New York-based media organizations’ requests to unseal the documents.

Reporters and editors from The Associated Press, Rochester Democrat and Chronicle, The (Syracuse) Post-Standard and Albany Times Union asked a magistrate judge in Syracuse to make public the materials filed in connection with five search warrants issued as part of a criminal investigation of Bernie Fine. Federal authorities are looking into allegations that the recently fired Syracuse University associate basketball coach sexually molested former ball boys at the school, but no indictments have been returned.

When the public has a right of access to judicial documents, courts make sealing decisions by, at the very least, balancing the interests of the parties involved with those of the public and the press. The journalists in this case unsuccessfully argued that widespread publicity surrounding the probe — including statements by four alleged victims and extensive commentary about the case by a state prosecutor conducting his own review of related events — weakened the government’s interest in maintaining the secrecy of the materials.

The local district attorney “has taken the unusual move of commenting on witnesses and the credibility of the evidence,” John O'Brien, a Post-Standard reporter who requested the unsealing on behalf of the paper, said in an interview. "The public has been left with his interpretation of the evidence and the witnesses, and that’s it."

This publicity, along with the fact that Fine did not object to the unsealing, reduces the government's interest in maintaining the privacy of the information in the search warrant materials, U.S. Magistrate Judge Andrew Baxter said in his order denying the news media's request to unseal. Its disclosure during this investigative stage, however, could nonetheless impede the probe by revealing critical aspects of the government's theory of the case, and deterring additional victims from coming forward, he ruled.

Baxter said the news media could renew their request to unseal in six months or after any indictment or guilty plea in the case.

The organizations sought access to the warrants, applications and supporting affidavits. Police generally attach affidavits to their applications for warrants in which they describe the evidence that, in their view, provides the “probable cause” necessary for a judge or magistrate to authorize the search. These documents often provide the most insight into criminal investigations.

Yet, for that very reason, the presumption of public access to judicial documents, including filed search warrant applications and affidavits, is outweighed by the government's interest in protecting the integrity of an "ongoing criminal investigation into the sensitive areas of child abuse and molestation," Baxter ruled.

"The subject of the investigation is now aware of its existence,” he said. “However, the search warrant applications and affidavits would disclose to the subject the range of potential criminal violations being investigated, the evidence obtained and relied upon by the government prior to the searches, and the information which particular individuals have provided to the government."

Courts have not been clear about whether the public has a right to review warrants and related materials while a particular investigation is ongoing, and different federal appellate courts have reached very different conclusions. While some hold that the First Amendment creates a presumption of access to search warrants and related materials, others refuse to recognize a constitutional right of access, while at least one other recognizes a right of access based on the common law rather than the First Amendment.

After an investigation is over, and the need to protect an ongoing investigation is no longer an issue, however, many courts routinely grant access to previously sealed search warrant materials.