In secret case, court rejects 'total and permanent' seal

The U.S. Court of Appeals in New York (2nd Cir.) last week rejected a request to permanently seal the entire transcript of a criminal defendant’s sentencing.

The appeal remains shrouded in secrecy, with court documents, the charges, the defendant’s name, and even the defense attorney’s name sealed. Prosecutors declined to provide any information about the case, citing the court’s sealing order.

But the appellate court’s Dec. 14 opinion makes clear that U.S. District Judge John Gleeson denied a criminal defendant’s “motion for total and permanent sealing of his sentencing transcript.” Both the defendant and prosecutors asked the appellate court to overturn the Gleeson’s order, and it appointed separate counsel “to defend the district court judgment so that the appeal could be considered in an adversarial context.”

The appellate court ruled that Gleeson “correctly recognized that the public right of access to criminal proceedings – deeply rooted in the common law and guaranteed by the First Amendment – is presumptive.” It added that “where, as in this case, a party seeks to seal the record of criminal proceedings totally and permanently, the burden is heavy indeed.”

While it rejected the request to permanently seal the entire transcript, the appellate court kept the transcript sealed until Gleeson can determine whether it is “possible to protect the ‘compelling interest’ at issue here by sealing the sentencing transcript in a way that is less than total and permanent.” The court did not disclose what “compelling interest” was asserted in favor of sealing the transcript.