SDNY COURTHOUSE, July 22, updated – In a court proceeding that began as open, with the defendants' family members and even legal interns present on July 22, Inner City Press was ordered to leave, leaving no media or member of the general public present.
It took place in the U.S. District Court for the Southern District of New York at 500 Pearl Street in Courtroom 14C before Judge Paul A. Crotty. The week's SDNY Civil and Criminal Proceedings Calendar which Inner City Press prints out each Monday listed a Change of Plea for 11:30 am in USA v. Perlson, 18-cr-751.
When Inner City Press went in at 11:30 am, at first Judge Crotty was asking why a transcript in the case said it was from November 31, when November has only 30 days.
"Good catch," the Assistant US Attorney said, adding that he thought it was from October 31. He added that Perlson would now be allocuting to Count 2 and that there was a cooperation agreement.
Suddenly the lawyers pointed out Inner City Press in gallery, and said while legal interns were OK then objected to Inner City Press' presence. Judge Crotty asked Inner City Press to identify itself.
"I am a reporter. If you are going to try to close a public courtroom there must be specific findings, for specific portions. There is case law."
There followed a sidebar, apparently transcribed, from which Inner City Press was excluded. At the end Judge Crotty while ordering Inner City Press to leave said that the government's case is moving along well and that he hoped to unseal the transcript in a month.
But is that enough? Inner City Press left the courtroom as ordered, adding as it left that a case on point is United States v. Haller, 837 F.2d 84, 87 (before closing a proceeding to which the First Amendment right of access attaches, the judge should make specific, on the record findings demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest).
But Inner City Press was not given an opportunity to make its argument before being ordered out. And once back to the PACER terminal at which it has been working for months, searching by "Perlson" resulted in nothing, and 18-cr-751 "case not found." But it remains in the (printed-out) SDNY calendar. We'll have more on this - it is becoming pattern.
For example on 9 July 2019 before SDNY Judge Loretta A. Preska: listed on PACER and in the SDNY lobby for 10 am before her was the case of USA v. Connors Person, et al, 17-cr-683, complete with letters of support from the head bank regulators of the state of Alabama.
But when Inner City Press arrived at 10:10 am, there was a shackled defendant with cornrows at the defense table. His lawyer stood and summoned Assistant U.S. Attorney Frank Balsamello out into the hall by the elevators. When they returned, at the same time as two of the defendant's family members, Judge Preska asked about those present in the room, and summoned the lawyers up for a sidebar - with a court reporter, which may later be significant.
After the sidebar discussion, Judge Preska called the case as US v. Santino-Barrero (phonetically - it was not written down anywhere.) Then Judge Preska asked the defendants' family members to stand, then the legal interns, then other interns introduced by one of the Marshals.
"Is that you in the back, Mister Lee?" Judge Preska asked. Inner City Press previously reported daily on the UN bribery trial and sentencing of Patrick Ho before Judge Preska, once answering in open court her question about press access to exhibits in that case. So the answer was Yes.
I'm going to have to ask you to leave, Judge Preska said. Inner City Press considered asking why, right there, but decided against it. It has recently been advised to not ask so many question, even as its question about a suddenly sealed June 17 sentencing by SDNY Judge Lorna Schofield remains unanswered, see below.
The PACER terminal in the SDNY Press Room does not list a Santino Barrero as a defendant. The Bureau of Prison's website is only searchable with a first name, which was not given.
Back on June 17 the sentencing of a defendant seeking time served, seemingly for cooperation with the government, was abruptly declared "sealed" by SDNY Judge Lorna G. Schofield on June 17.
She said she was going to seal the transcript, but that once this reporter walked into her open courtroom 1106 in 40 Foley Square, she moved the entire proceeding into her robing room, closed to the Press and public.
On June 18 Inner City Press requested the name and number of the case, and that all portions that do not need to be redacted or sealed be provided or placed in the docket, citing in support this its requests: again,sentencing proceedings are presumptively open in the Second Circuit. See United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings.").
Inner City Press is pursuing this because it is a precedent and trend. On June 17 when SDNY Judge Schofield, her Courtroom Deputy James Street and the shackled defendant, Assistant US Attorneys and US Marshals emerged twenty minutes later, Judge Schofield said only, "We're adjourned." There was no disclosure of the outcome of the proceeding - as Inner City Press walked in, the defendant's lawyer was asking for time served."
Then Judge Schofield said she wanted to "shake hands with our visitors" and proceeded to do just that with the two other people in the gallery. Inner City Press left.
No one where on the electronic board in the SDNY lobby at 500 Pearl Street was any proceeding before Judge Schofield at that time list. Nor in the day's PACER calendar.
So it is both a confidential sentencing, and a confidential case?
Judge Schofield's Rules for Criminal Cases, ironically, provide that there is a presumption that all sentencing submissions are public, and that if anything is redacted only those pages with redactions can be withheld from the public docket.
But no such distinction is possible when an entire proceeding is moved into the judge's robing room barred to the press and public, with no notice or opportunity to be heard. Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.
