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Openness prevails in federal courts out West — for now

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  1. Court Access
The Ninth Circuit earlier this week issued an opinion with what seemed like a pretty straightforward reading of the current…

The Ninth Circuit earlier this week issued an opinion with what seemed like a pretty straightforward reading of the current state of access law: before a criminal proceeding can be closed to the public and the news media, a judge must find that there is a compelling interest to do so, and that the amount of closure is "narrowly tailored" to satisfy that interest. Furthermore, the findings supporting closure must be in writing, so that those challenging closure have something to appeal, and even the motion of the party seeking closure must be in writing, so that the public is put on notice that a proceeding is about to be conducted with secrecy.

These standards — meaningful notice of closure undertaken only when there is a compelling interest — have been the law of the land for a few decades now. The funny thing is, courts aren’t always watched by the press and the public, and the practice becomes something less than what the law requires. So, as California public defenders are now arguing, according to the California legal newspaper The Recorder, they can’t believe the secrecy they’ve gotten used to and taken for granted has been limited:

"I’ve never heard of a case where a district judge didn’t seal the court when asked to do so, even with an oral request in the moment," said Daniel Blank, an assistant federal public defender in San Francisco.

. . .

Blank added: "Just saying ‘I’m a nervous Nellie,’ or ‘I’m prudent’ ain’t going to be enough" to convince a judge.

Well, yes, that’s the point. "Nervous Nellies" should not get secret justice in this country. We want our courts to be open so we know who is being punished or getting special treatment. Favoritism, bias and disproportionate treatment can only thrive in secrecy. Closure for limited purposes will still be available where appropriate, but lawyers will have to get used to (and should have long ago) the fact that they cannot move entire proceedings and sentencings into the dark to avoid public scrutiny.

However, there’s another closure case awaiting decision by another Ninth Circuit panel that may come out differently — mainly because the government is making a national security argument in saying that parts of a plea agreement should remain sealed. The case involves Thomas Kontogiannis, a co-conspirator of convicted former Rep. Randall "Duke" Cunningham. So stay tuned, and the final word on this issue in the Ninth Circuit may have to come from a rehearing before the entire court.