By Matthew Russell Lee, Patreon Maxwell Book
BBC - Honduras - CIA Trial Book - NY Mag
EDNY COURTHOUSE, August 12 – Seeking a lengthy sentence for a defendant, the U.S. Attorney's Office for the Eastern District of New York on August 11, 2021 wrote to EDNY Judge Eric C. Komitee to seal a 40 minute video, stating that "the government does contest that 'a party’s sentencing submission is a judicial document.'"
To be a judicial document and presumptively available to the press and public, all that is needed is that it impacts or could impact a judge's decision. So this DOJ argument was ludicrous, and a negative precedent for open courts.
Inner City Press filed opposition with Judge Komitee, including:
"In the above captioned criminal case, Assistant US Attorneys Emily J. Dean and Benjamin Weintraub in their August 11, 2022 submission (Dkt No. 105) requesting the sealing in full of a 40 minute video and state that "the government does contest that 'a party’s sentencing submission is a judicial document.'"
Inner City Press opposes both. It is extraordinary to argue that a sentencing memo, intended to influence the Court's decision on incarceration of a defendant, is not a judicial document.
Inner City Press has sought clarification of this stated policy of the US Attorney for the EDNY from his spokesman John Marzulli, without any response. (Mr. Marzulli has told Inner City Press, You can follow us through the press releases on our website, of which this entire week there have been precisely two, none about this case or policy).
The Second Circuit has observed that a document is a judicial document “not only if the judge actually relied upon it, but also if ‘the judge should have considered or relied upon [it], but did not.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 n.3 (2d Cir. 2016) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006)... Please act on, and docket, this request, as soon as possible before the sentencing. Similar Inner City Press requests are routinely docketed in the SDNY, regardless of not being submitted on ECF. Inner City Press and the undersigned, while admitted in the SDNY, are not parties to this criminal case, nor filers in the EDNY." Full filing on Inner City Press' DocumentCloud, here.
Inner City Press cc-ed both prosecutors, the named EDNY spokesman (to be fair), and defense counsel, who separately wrote in suggesting a two minute redaction from the video. After Inner City Press' opposition, the EDNY prosecutors quickly wrote in that they agree with the defense. But that does not resolve it, the presumptive public nature of the sentencing submission, much less the outrageous EDNY argument that sentencing memos are not judicial documents. Watch this site.
Ongoing disclosure: This was prepared without any assistance or answers from Eastern District of New York US Attorney's Office spokesman John Marzulli, ex-Daily News, who without hearing or appeal on August 8, 2022 decreed that said "his" / EDNY's publicly-funded information will henceforth go to some (including outside of New York) but not others, or other, like NYC-based Inner City Press. Requests for reconsideration have been submitted, so far without response. We'll have more on this.
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