By Matthew Russell Lee
SDNY COURTHOUSE, March 4 – The jury in a week-long Bronx gang case in the U.S. District Court for the Southern District of New York passed a note on March 4 to Judge Robert W. Sweet, who said it indicted a lack of unanimity, but not necessarily division. But should he read the note into the record? Initially the prosecutors from the U.S. Attorney's office said yes, and provided Judge Sweet a citation. But when he re-emerged from his chambers agreeing to show both sides the note, he asked why he should read it into the record. Now the prosecutors said they would defer to the lawyers for the defendant, Christopher Howard, and not read it into the record. Which meant, and still for now means, that the press and public have no way to know what it says.
Isn't there's an interest in the public, separate from the government's interest, in knowing of this process? The interest was cited recently in this SDNY to release some of what was seized in the raid on Michael Cohen's home. Why does that logic not apply to this? And how does the Press, entering each day from the metal detectors, go about asserting and pursuing that interest? Inner City Press, on this day and in this case the only media in the courtroom, last month covered the decision by SDNY Judge Pauley
From the SDNY decision in U.S. v. Cohen, 18-cr-00602: "the presumption of access is at its core tethered to the need for public monitoring of the federal courts and their exercise of judicial power. Cf. SEC v. Van Waeyenberghe, 990 F.2d 845, 847 (5th Cir. 1993) (explaining that “[t]he public’s right to information does not protect the same interests that the right of access is designed to protect”). As the Second Circuit explained, Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions. Amodeo II, 71 F.3d at 1050."
From the SDNY decision in U.S. v. Cohen, 18-cr-00602: "the presumption of access is at its core tethered to the need for public monitoring of the federal courts and their exercise of judicial power. Cf. SEC v. Van Waeyenberghe, 990 F.2d 845, 847 (5th Cir. 1993) (explaining that “[t]he public’s right to information does not protect the same interests that the right of access is designed to protect”). As the Second Circuit explained, Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions. Amodeo II, 71 F.3d at 1050."
The same question has been raised in another SDNY case, this one civil and involving the employment practices of the Qatari royals who live in a mansion on 72nd Street. There, Judge Oetken told the parties to agree among themselves how much to seal. But this is a criminal case.
On March 1 with the jury already out, defendant Howard upon returning to the courthouse at 2 pm had to jump to the front of the security line to ensure arrival in the courtroom on time. So did others. This case in ongoing - watch this site. How guns eject shell casings was the subject of expert testimony in this case on February 27. An ATF agent traced a bullet back to Illinois; under cross examination he said a shell casing might eject feet rather than yards unless it bounced on something. The next day on February 28 the defense's failure to cross examine this testimony was emphasized in the government's summation; that the bullet was made in Illinois was presented as a basis to find that these half-block gangs impact inter-state commerce. A Facebook official testified, and the defendant's messages were shown, aiming to "peter roll that birch ass 'N-word.'" Judge Sweet in his March 1 lengthy charge to the jury said that "the defendant is not even required to cross examine witness." He told the jurors to disregard any questions he had asked witnesses, add that he didn't remember asking any (unlike for example Judge Hellerstein in the other racketeering trial still ongoing in the SDNY, of Joe Cammarano.) The differing demographics of the two courtrooms, and the lack of any other media in the Bronx case, were striking.
