SDNY COURTHOUSE, August 14 – Back on June 17 a sentencing of a defendant seeking time served, seemingly for cooperation with the government, was abruptly declared "sealed" by U.S. District Court for the Southern District of New York Judge Lorna G. Schofield.
She said she was going to seal the transcript, but that once this reporter for Inner City Press 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.
In the eight weeks since Inner City Press has repeatedly asked for more information about the mysterious proceeding, even as it was similarly ordered out of a criminal presentment before SDNY Judge John G. Koeltl which he called as US v. John Doe, another before Judge Paul A. Crotty known as US v. Perlson and another before Judge Loretta A. Preska.
Judge Schofield, to her credit, since June 17 when taking certain matters into her robing room has allowed Inner City Press to enter and cover the discussions, telling the parties, "Mr. Lee is a legal blogger who is a frequent visitor to our courtroom." But the June 17 proceeding remained a complete mystery.
It still it. But to the credit of the SDNY District Executive and his office, on August 14 Inner City Press was informed that the Schofield proceeding now appeared, in some form, on PACER. And there is it, a single page and a half order with the defendant's name redacted, as 18-cr-181: "WHEREAS, an application has been made by the defendant, for the continued sealing of the case name and the sentencing transcript in the above captioned matter;
WHEREAS, the Court finds that the safety of the defendant may be compromised if the defendant's application is not granted;
IT IS HEREBY ORDERED that the case name and the sentencing transcript in the above-captioned matter be maintained under seal, and that the case shall be captioned as United States v. John Doe in the public docket, until further order of this Court; and
IT IS FURTHER ORDERED that no docket entries shall be made in the above-captioned matter, other than entry of a version of this Order that redacts the defendant's name, until further order by this Court; and
IT IS FURTHER ORDERED that counsel for the defendant and the Government may be provided a copy of the sentencing transcript without further order of the Court.
Dated: New York, New York
June 16, 2019
June 16, 2019
THE HONORABLE LORNA G. SCHOFIELD
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF NEW YORK
It's appreciated, but questions remain. Did the government join in the request to seal, and theeight weeks of total opacity? How is this different from the US v. John Doe case before Judge Koeltl that Inner City Press was ordered out, and that is now listed as "sealed"?
How has Judge Koeltl not responded on that, and Circuit Judge Sullivan not responded on Inner City Press' request to at least see the government's request to seal the sentencing, in a 2005 case, of Jose Rodriguez? Watch this site.
Back on June 18 Inner City Press formallyrequested 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: 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.").
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. See United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988). United States v. Cojab specifically dealt with hearings (in that case, a pretrial hearing) conducted in the robing room.
Inner City Press is pursuing this because it is a precedent and trend. On June 18 affable SDNY Magistrate Judge Sarah Netburn declared a proceeding in Courtroom 5A sealed with "delayed docketing;" in her two days in the Magistrates Court this week not a single filing has been made available on PACER. There's more - watch this site.
On June 17 when 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.
