EDNY COURTHOUSE, August 27 – As
Inner City Press fights to unseal cases in U.S. District
Court for the Eastern District of New York as elsewhere,
another EDNY exclusion of the public and press came into
view.
Former Abercrombie & Fitch CEO
Michael Jeffries had a Zoom hearing on August 27. The
public docket listed it as by Zoom, but still as of the
afternoon of August 26 did not list any listen-on audio
line for the public and press to call in on. As
such, this would not be a public proceeding, as
required.
Inner City Press wrote to the judge, asking
that the call-in number be put in the docket. The response
came from elsewhere, with the number but no explanation or
response to the other access questions.
On August 27, Inner City Press live
tweeted, here:
A defense counsel: This trial will go long,
with all the victims. Anything can happen. So we should
over-estimate. This could be a two month trial. They might
rush a verdict. Judge: I am concerned we might run into
the December holidays.
Judge Choudhury: I am inclined to move the
trial - but not only May. I'm looking at January 4. May I
hear from counsel? Voice (not IDing self - seems AUSA)
January is preferable to May, the victims do not want it
longer, the Court can consider it under the CVRA
Defense: We're not asking for May, only the
end of March. Judge Choudhury: I may have misread it.
Anyone else? 2d Defense counsel (not IDing self) If Jan 4
is the date, OK. But he has a prepaid travel to Africa, it
cannot be canceled, it has already been postponed
Judge Choudhury: I move the trial to Jan 4
More dates and analysis on X for
Subscribers here and Substack here
On EDNY's public courtroom calendar for
July 7 was an entry with no name: "* SEALED *," 2:00 p.m.,
Courtroom 6H North, before Judge William F. Kuntz, II. On
PACER, the case — 18-cr-277 — returns only "Sealed v.
Sealed. This case is under seal."
No caption, no parties, no docket entries.
A criminal case, apparently opened in 2018, invisible for
eight years. Inner City Press, which covers the federal
courts, wrote to Judge Kuntz that same day: docket the
letter, unseal the docket sheet, and test the continued
sealing against the Second Circuit's standards — citing
Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir.
2004), in which the Second Circuit held that the press and
public have a qualified First Amendment right of access to
docket sheets themselves, without which "the public cannot
know what it is being denied."
Because there was no public docket for the unsealing letter to go into, Judge Kuntz opened a new, public miscellaneous case, captioned In re Inner City Press [26-cv-4094], docketed Inner City Press's letter as Document 1, and put Assistant United States Attorneys on the case to respond.
On August 11, the US Attorney's Office
submitted a response that because there was a proceeding
held in EDNY, with no information about it, that is
enough. The defendant's two lawyers wrote in, merely
joining in the Government's letter. Inner City Press
immediately, mid-afternoon on August 11, replied,
including:
"For what it is worth, while Inner
City Press which has been granted in-house status in SDNY
and therefore is able to have laptop and cell phone inside
500 Pearl Street does sometime go to proceedings about
which little information is available in advance, Inner
City Press has found it significantly more difficult in
EDNY, having had to advocate for weeks for a
trial-specific pass in one instance.... This is relevant
to the argument that a member of the media, with NYC Press
Pass, could simply have hung around and gone to a
proceeding about which there was, intentionally, no
information."
A request for bring in phone and/or laptop
on August 24 was denied, so Inner City Press did the
August 24 argument without electronics - and was unable to
provide the citation to its own unsealing win in the
Second Circuit in Greenwood, while the AUSA had her
laptop out. Judge Kuntz said his courtroom was open
on July 7 and that the restrictions do not constitute a
denial of access. Fair enough. But no public call-in line,
in the public docket sufficiently in advance, IS a denial
of access.
This letter submitted by email on August 14
and as of August 26 had not been responded to in any way:
Dear District Executive Corcoran, and Mr. Loguercio:
Inner City Press writes to respectfully request information about how this District determines which members of the press receive in-house status, electronic device authorization, or comparable standing access, as distinct from the case-by-case determinations Inner City Press has been directed to apply through each time, most recently yesterday when asking about bringing in a phone and laptop to be able to write about the upcoming oral argument in In Re Inner City Press before Judge Kuntz on August 24.
This is not a request made under the Freedom of Information Act, which I imagine you'll say does not apply to the judicial branch. It is a more modest request, that should be answered: does this Court maintain any written policy, standing order, or set of criteria governing these determinations?
If so, I would appreciate a copy, as I requested yesterday. If not, I would appreciate the office's confirmation that none exists, and a general description of what factors are considered.
I ask because
written, public criteria of exactly this kind are not
unusual among federal courts. The District of Delaware
publishes a specific written standard: in-house credentials
go to press who cover that Court "in its entirety, on a
regular basis," with the application form stating expressly
that "press coverage of a single case alone does not
qualify." (https://www.ded.uscourts.gov/
The District of
Maine publishes a formal Press Policy with an application
process and a dedicated point of contact. (https://www.med.uscourts.gov/
The District of
New Hampshire likewise publishes written internal guidance
governing how the Clerk's Office handles press inquiries and
high-profile cases. (https://www.nhd.uscourts.gov/
The District of
Arizona designates its District Court Executive as the
Court's Public Information Officer and publishes that
contact directly. (https://www.azd.uscourts.gov/
The District of Massachusetts, each time I sign up for Zoom access to cover a hearing there, asks me, don't I want a District press pass? I am today asking EDNY for one.
Most directly
relevant, the Southern District of New York, in a 2010 order
by Judge Richard M. Berman still in use, resolved the same
question by adopting an existing, objective, outside
standard: the Court "relies upon the New York City Police
Department's rules regarding press credentials," so that any
journalist holding an NYPD Press Card qualifies to apply.
There are then addition criteria, the submission of articles
about six different cases and the like. (https://www.nysd.uscourts.
Even the
Supreme Court's own Public Information Office publishes the
specific criteria it uses to allocate its limited hard
passes among journalists. (https://www.supremecourt.gov/
None of these
courts appears to have found written criteria
administratively unworkable; the general U.S. Courts
guidance for journalists directs reporters to exactly these
kinds of published district-level policies as a starting
point. (https://www.uscourts.gov/
EDNY's own press room, behind the candy machines, houses standing desks for numerous outlets, demonstrating that some form of standing or in-house access is granted here too, on some basis. Inner City Press's own experience has been different: obtaining a trial-specific pass, including for the Thomas Barrack trial, required many days of advocacy, and no standing pass has issued since.
When I asked, yesterday in writing, how such determinations are made — whether by circulation, audience size, or any other stated factor — the response was that each request is evaluated case by case, without further elaboration.
I raise this now, in advance of oral argument scheduled before Judge Kuntz on August 24, 2026, because it bears directly on a question at issue in that matter: whether a member of the press or public genuinely has a meaningful opportunity to attend and cover a proceeding, or whether that opportunity exists in name only absent the kind of standing access some outlets already hold, and absent enough advance notice to apply case by case for something as basic as bringing a phone to report on the proceeding immediately after it concludes, as some can.
I would welcome the District's written answer and determination before that date.
Thank you for your attention to this.
Respectfully,
We await response. Watch this site.
