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Home > SPJ News > Disturbing Trend, or Widespread policy?

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Disturbing Trend, or Widespread policy?

SPJ FOI Alert
10/31/2003


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For more information, contact SPJ's Freedom of Information Committee Co-chairs:
Charles Davis: 573/882-5736 or daviscn@missouri.edu
Joel Campbell: 801/422-2125 or joel_campbell@byu.edu

The lead in Karen Branch-Brioso’s Oct. 23 story in the St. Louis Post-Dispatch tells the tale:

“Last October, federal prosecutors unveiled a grand jury indictment charging eight Colombians in the kidnapping and murder of Ron Sander, a Missouri oil worker in Ecuador.

Nearly a year later, that indictment is the only public record in the case.

At the request of prosecutors, a judge has ordered all proceedings and documents in the case sealed from public view. Even the docket -- a list of filings, hearings, judicial decisions and the names of the litigants -- is secret.

A hearing Friday for one of the defendants was typical of the extraordinary secrecy in the case. Before the hearing, a U.S. marshal cleared Judge Henry Kennedy's courtroom -- and slid wooden panels over the courtroom door windows to block the proceedings from public view.

Federal authorities last year called the charges against the Colombians "terrorist offenses." And while Sander's murder wasn't related to the 9-11 terrorist attacks, the secrecy surrounding his alleged killers mirrors the hidden proceedings of others who were rounded up after Sept. 11, 2001.”


It seems that all signs point to an epidemic of secrecy in our nation’s federal courts.

Karen Branch-Brioso’s article cites no less an authority than Chief Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia, who said that as many as 40 percent of criminal cases in the court are sealed at the request of prosecutors.

If he is even remotely accurate, SPJ is gravely concerned about what appears to be a pattern of secrecy that violates the Justice Department's established policy on open judicial proceedings, set forth at 28 C.F.R. §50.9.

The Justice Department’s policy clearly states that the presumption in judicial proceedings is one of openness. It begins: "Because of the vital public interest in open judicial proceedings, the Government has a general overriding affirmative duty to oppose their closure. There is, moreover, a strong presumption against closing proceedings or portions thereof, and the Department of Justice foresees very few cases in which closure would be warranted."

The estimates by Chief Judge Hogan indicate closure far in excess of the “very few cases” envisioned by the policy. And in many of those cases, SPJ is concerned that federal prosecutors fail to meet the procedural requirements of adequate notice and opportunity to respond to motions for closure on the record.

That’s where our members come in: journalists across the country should take a hard look at their local federal district court, and see if the pattern repeats itself. It’s a timely local story with a powerful news peg.

Note: To read SPJ’s recent letter to Attorney General John Ashcroft concerning this issue, see below.

SPJ Letter to Attorney General John Ashcroft

October 27, 2003

John D. Ashcroft
United States Attorney General
U.S. Department of Justice
950 Pennsylvania Ave. N.W.
Washington, D.C. 20530-001

Dear Attorney General Ashcroft:

The Society of Professional Journalists, the largest association of working journalists representing news media outlets across the country, write urging the Department of Justice to examine whether federal prosecutors in the federal district courts are failing to comply with your department’s guidelines on access to information on judicial proceedings.

SPJ’s concerns stem from a recent article in the St. Louis Post-Dispatch by Karen Branch-Brioso in which Shelly Snook, an aide to Chief Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia, said that he and the judge estimate that as many as 40 percent of criminal cases in the court are sealed at the request of prosecutors.

Chief Judge Hogan’s candor is to be praised, but if he is even remotely accurate, SPJ is gravely concerned about what appears to be a pattern of secrecy that violates the Justice Department's established policy on open judicial proceedings, set forth at 28 C.F.R. §50.9.

As you know, the Justice Department’s policy on openness of judicial proceedings memorialized in the Code of Federal Regulations clearly states that the presumption in judicial proceedings is one of openness and not reflexive closure. It begins: "Because of the vital public interest in open judicial proceedings, the Government has a general overriding affirmative duty to oppose their closure. There is, moreover, a strong presumption against closing proceedings or portions thereof, and the Department of Justice foresees very few cases in which closure would be warranted."

That policy statement, which has remained virtually unchanged since 1980, reflects the presumption of openness of judicial proceedings grounded in the United States Supreme Court’s decision in Richmond Newspapers v. Virginia, which stated unequivocally that the public and press enjoy a First Amendment right of access to criminal proceedings, absent a compelling interest overriding access. Justice Department policy further states that closure will be warranted in “very few cases,” and that closure should be sought rarely and only when closure is “plainly essential to the interests of justice.”

The estimates by Chief Judge Hogan indicate closure far in excess of the “very few cases” envisioned by the policy. And in many of those cases, SPJ is concerned that federal prosecutors fail to meet the procedural requirements of adequate notice and opportunity to respond to motions for closure on the record.

Mr. Snook’s only stated reason for closure in these cases was to obtain cooperation from defendants in drug cases. Again, if this is accurate, it raises concerns about compliance with the Justice Department’s long-standing policy, which only justifies closure on the grounds of national security, in camera proceedings, grand jury proceedings, bench conferences, conferences in chambers and the protection of child witnesses and/or victims (28 CFR 50.09). Even if some of the cases described by Mr. Snook fall within those guidelines, obviously many do not.

It is unclear from the article whether or not docket information in these cases is also being sealed. If it is, the same arguments apply, for without access to dockets and pleadings, access to proceedings is frustrated.

SPJ requests that the Justice Department promptly investigate whether government
attorneys in the D.C. District Court are complying with the department guidelines and whether a similar practice of routinely sealing cases is occurring nationwide. Finally, we ask that your office remind prosecutors of their obligations under existing Justice Department policy to adhere to the presumption of openness central to the administration of justice.

Sincerely,

Gordon “Mac” McKerral
SPJ President

Charles Davis, SPJ FOI Chairman
Director, University of Missouri Freedom of Information Center


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