SDNY COURTHOUSE, March 25 -- A Federal courtroom was sealed and the Press ordered to leave on March 25, with no notice or opportunity to be heard.
Inside the U.S. District Court for the Southern District of New York Magistrates Court, a criminal proceeding took place out of public view.
The defendant was brought into and out of the courtroom directly by elevator. Neither his or her name, nor the case's docket number, were disclosed.
Inner City Press has been covering the SDNY Magistrates Court this week, including government requests to remand defendants to the Metropolitan Correctional Center and MDC in Brooklyn, both with cases of Coronavirus COVID-19.
The court to its credit has remained open, with a bottle of hand sanitizer at the entrance and social distancing in the gallery and hallway outside.
But this level of secrecy, particularly without an opportunity for meaningful review, is too much social distance. Inner City Press was in the Magistrates Court on the afternoon of March 25. It witnessed and will report on a guilty plea in the 2011 PokerStars illegal gambling indictment.
Then it was told to leave the courtroom, initially without any rationale at all. Eventually Magistrate Judge Sarah L. Cave, after summoning the prosecutor and defense lawyer into her robing room, emerged and said that on the motion of the government she found that the safety of the defendant and others justified sealing the courtroom.
Inner City Press asked if least the docket number would be available. Magistrate Judge Cave replied, No. Inner City Press left.
The process to review a Magistrate Judge's decision is to the so-called Part 1 judge, on this day District Judge Jed S. Rakoff. A call to his chambers resulted in an invitation to submit any request in writing. Inner City Press quickly drafted and submitted a letter, e-mailing copies to the prosecutor and to Magistrate Judge Cave's chamber. Here is a portion -- in an abundance of caution we are not even publishing the name of the Assistant US Attorney: "Dear Judge Rakoff:
This is directed to you as Part I Judge. This afternoon for Inner City Press I was covering the SDNY Magistrates Court, as I do most days but with particular focus these days with important decisions being made in the context of the Coronavirus / COVID-19 pandemic.
After a brief guilty plea proceeding I was told to leave the courtroom, that it was being sealed. I asked Magistrate Judge Sarah L. Cave's deputy what the basis of the closure was and was told to speak to the District Executive.
While I have much respect for District Executive Freidland, it is my understanding that Federal courtrooms in the SDNY (or 2d Circuit or beyond) can only be closed in accordance with, for example, 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)...
I do not know if it is too late to open that proceeding, but I would like action taken to release the docket number or a more specific reasoning to seal the courtroom.
To avoid this in the future I would like a process instituted or suggested by a ruling by your Honor that notice should be given in advance, so that the press can be heard (as took place under District Judge Crotty in the recent US v. Schulte case, with Inner City Press letters in the docket and a public hearing) and before Judge Engelmayer in the on-hiatus case of US v. Andrews (letter in docket, confidentiality of witness preserved by audio feed into Courtroom 506).
This was not narrowly tailored, there was no opportunity to be heard and I am not sure if DOJ approval for a request to seal the courtroom was sought or obtained, if necessary. I am in the building and am available to present / argue these requests for redress at any time. I am cc-ing AUSA [ ] and Magistrate Judge Cave's chambers.
To the system's credit, Judge Cave submitted an explanation, published below in full, and the matter on a going forward basis has been forwarded to the District Executive's Office and Chief Judge.
"Subject: FW: Press ouster from Magistrates Court this afternoon, request for redress from Part I
Good afternoon, In the matter to which Mr. Lee refers, on motion of the Government and with the consent of the Defendant, I found, pursuant to Waller v. Georgia, 467 U.S. 39, 43 (1984), that if the proceedings in this matter were held publicly (i) the safety of the Defendant and others could be at risk and (ii) active law enforcement investigations could be compromised. I also found that (iii) the Government’s interests in protecting the Defendant’s safety and the confidentiality and integrity of the ongoing investigation were compelling, and (iv) there were no reasonable alternatives to closing the courtroom that would adequately protect the Government’s and the Defendant’s compelling interests and still preserve the public’s right of access.
Accordingly, I granted the Government’s motion and ordered the sealing of the courtroom, the sealing of related docket entries, and the delay of any docket entries until further order of the Court. Please let me know if you wish to discuss further. Respectfully,
Sarah L. Cave United States Magistrate Judge."
Sarah L. Cave United States Magistrate Judge."
It is a appreciated. But this is, with all due respect, part of a pattern. Recently under Magistrate Judge Lehrburger a guilty plea was moved from the Magistrate's Court to his locked courtroom upstairs. Since the move to 24B, counsels have been allowed to argue privately to Magistrates (mis) using a pre trial services report loophope. There have been other presentments quietly moved to courtrooms where it was thought no one would show up.
There should be a process for sealing a courtroom that allows an opportunity to be heard so that errors, that cannot be corrected, are not made. We'll have more on this.
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