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Two circuits unseal felons' letters implicating political figures

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  1. Court Access

    NMU         NINTH AND THIRD CIRCUITS         Secret Courts         Oct 31, 2002    

Two circuits unseal felons’ letters implicating political figures

  • Media organizations’ fight to obtain documents produced favorable results in the U.S. Courts of Appeals in San Francisco and Philadelphia.

In efforts to reduce their sentences, felons in California and New Jersey filed letters under seal accusing key state officials of misconduct. Only after media organizations intervened and engaged in lengthy appeals did federal courts release the letters to the public.

Three years after The Sacramento Bee requested documents filed in a racketeering and fraud case against former California Coastal Commissioner Mark Nathanson, a federal court in Sacramento ordered the documents released to the public Oct. 28.

While in prison for soliciting money in exchange for building permit approval by the Coastal Commission, Nathanson submitted two letters to the court in an effort to reduce his sentence. The letters accuse Gov. Gray Davis, then state controller, of approaching Nathanson to assist friends and supporters with projects pending before the Coastal Commission. Davis denies the accusations.

After Nathanson was released from prison, the Bee discovered Nathanson’s 1994 motion for a reduced sentence and the two letters missing from the docket. The court never issued a sealing order, but placed the documents in the clerk’s safe. Therefore, no records indicated that the documents even existed, said Charity Kenyon, counsel for the Bee.

When the newspaper requested the secret documents in 1999, district judge Lawrence Karlton issued a retroactive sealing order and released redacted versions of the letters.

The newspaper filed a motion for access to the secret documents, which Karlton denied.

The Bee then appealed Karlton’s decision to the U.S. Court of Appeals in San Francisco (9th Cir.). The appellate court required that Karlton issue factual findings to determine whether privacy interests justified the redactions.

In his April 20, 2001 order, Karlton supplied a litany of findings supporting his sealing order, including a lack of evidence to prove Nathanson’s accusations, a lack of newsworthiness, prejudice to a high official’s reputation and potential to damage a private individual’s business.

The Bee appealed again. On April 17, 2002, the Ninth Circuit held that Karlton must unseal the letters and make them publicly available without redaction.

In its opinion, the Ninth Circuit found that “injury to official reputation is an insufficient reason ‘for repressing speech that would otherwise be free.'”

“The Bee began this protracted lawsuit in 1999 in an effort to discover why Nathanson had obtained a significant reduction in his sentence. That was subject of legitimate public interest,” the Ninth Circuit wrote. “No adequate justification for their redaction has been offered by the court or by the official and the individual affected.”

Under this decision, Karlton was to release the unredacted letters; however, no one would see them for another six months because of another appeal attempt.

On July 16, an unidentified private citizen whose name was redacted from the letters requested appeal of the Ninth Circuit decision to the U.S. Supreme Court. While the high court granted the request of the petitioner and his attorney to file anonymously Oct. 7, the court refused to review the case.

On Oct. 28, the saga ended. After three years of protracted litigation, the Bee got what it was looking for — two letters from Nathanson’s attorneys supporting his early release that accuse Davis of improper campaign contributions and of requesting approval of coastal projects for friends and supporters.

The release came a week before Davis’ bid for re-election to a second term.

In September, another politically charged battle to unseal records was brewing in New Jersey where media organizations, including The New York Times, The Philadelphia Inquirer, The Record, NBC and ABC fought for access to a letter written by a convicted felon implicating Sen. Robert Torricelli (D-N.J.).

On June 2, 2000, David Chang pled guilty to making illegal contributions to Torricelli. As a cooperating material witness, the court released Chang and placed him under 24-hour house arrest until his sentencing.

In accordance with sentencing guidelines, Chang filed a letter May 22, 2002 detailing his cooperation and the government’s reasons for a reduction in his sentence. The 18-page document describes Chang’s relationship to Torricelli, cash and gifts given to Torricelli in exchange for favors, and threats by Torricelli.

The letter may have contributed to Torricelli’s decision to abandon his re-election campaign in late September.

New Jersey district judge Alfred Wolin ordered the document sealed in part.

While no presumptive right of access exists to information affecting or relating to grand jury proceedings, the Third Circuit found that Torricelli could not establish a connection between Chang’s letter and the grand jury proceedings, particularly when Chang did not even testify before the grand jury. The letter did not reveal what took place before the grand jury, and therefore is not protected material subject to sealing, the Third Circuit stated.

The Third Circuit also rejected arguments by the government that the letter would reveal prosecutorial methodology or chill prosecutorial disclosures in sentencing memorandum.

“These bald, unsupported assertions simply fail to overcome the strong presumption of openness that attaches to judicial documents,” Judge Richard Nygaard wrote in the Sept. 20 unpublished opinion.

The Third Circuit also held that Torricelli’s interest in privacy also could not overcome the presumption of openness, particularly when newspapers had already published the contents of the letter.

Torricelli “has already made public statements attempting to refute the very material he now wants us to suppress from public view,” Nygaard wrote. While the letter “contains statements that are perhaps painful to Torricelli, it is not the ‘unnecessary and intensified pain’ required to overcome the presumption of openness.”

(U.S. v. Nathanson: Media counsel: Charity Kenyon, Riegels Campos & Kenyon LLP; Sacramento, Cal.; U.S. v. Chang: Media counsel: Bruce S. Rosen, McCusker, Anselmi, Rosen, Carvelli, & Walsh, P.A., Catham, N.J.) ST

© 2002 The Reporters Committee for Freedom of the Press

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