SDNY COURTHOUSE, Aug 26-27 – Question why a
courtroom is being sealed, and the response is to suggest
that asking the question itself endangers a witness, a
cooperator, or law enforcement. It happened in
United States v. Conyers, where after being ordered to
provide Inner City Press the videos shown in the sealed
courtroom the prosecutor switched and said only if the
Press went to 26 Federal Plaza and told them what it
intended to publish.
This is the kind of government supervision
of reporting that no journalist should accept. So we
didn't.
It is happening again in United
States v. Robinson, where prosecutors moved to close the
courtroom one business day before trial, and where a
letter filed shortly before midnight on August 26 again
suggested that press interest in these proceedings
threatens the safety of law enforcement or
cooperators.
But in Robinson, the prosecutors were told
at a public hearing to submit a separate order
memorializing the transcript and exhibit access it had
agreed to provide. That order still has not been filed.
The midnight letter, after the trial, did not mention
it.
After the end of the public hearing,
the Government urged that its submitted order, already
superceded, be signed and it would submit a separate order
with the new provisions. But they never did it; this way,
next time they can say there were no safeguards, but only
what they proposed. The supplemental order should have
been filed, and now should be.
Inner City Press's response, filed
the same night, drew the line plainly: it will follow
rules a judge sets. It will not follow rules a party to
the litigation sets unilaterally, dressed up as a safety
concern, particularly when that party is the same one
asking the court to close a courtroom to the public it is
supposed to serve.
A press-pool seat offered in Conyers came
with the government's own implicit supervision attached; a
"publicly available" trial transcript came with a per-page
fee that made timely reporting on an undercover officer's
testimony cost-prohibitive in practice, whatever its
technical availability on paper.
Courts must be public. In criminal cases,
the power being exercised in them is the power of the
state over a person's liberty. That is precisely why a
request to close that process to public view should be met
with scrutiny, not with an insinuation that scrutiny
itself is dangerous.
Inner City Press has asked the Court to
require the promised order be filed, and to set a real
notice period, for example fourteen days, before the
government seeks to close a courtroom in this District
again. We understand that another 11th hour request is
coming up. Watch this site.
