Document Shell Game is Not Acceptable in Courthouse

Can you imagine having to stop by the judge’s chambers to get the documents declaring the facts and arguments litigants want the court to rule upon?

The U.S. Court of Appeals for the First Circuit overturned a rule in the federal district court for Rhode Island that allowed litigants to lodge their memoranda in the judge’s chambers rather than filing in the public file in the clerk’s office.

This rule came to light during the criminal racketeering prosecution of Providence Mayor Vincent "Buddy" Cianci, Jr., because the Providence Journal protested the lack of access to memoranda and trial exhibits during the trial. A federal indictment had accused Cianci, with five others, of "operating City Hall as a racketeering enterprise," according to the appeals court. Obviously, the case was getting considerable public attention, but in addition, the trial judge believed the assistant U.S. attorney prosecuting the case was "leaking" information in violation of the lawyers’ disciplinary rules.

The trial court issued a "non-dissemination order" that forbade the release of any information about witnesses, plea bargaining or information presented to the grand jury. In addition, all lawyers’ documents containing "pertinent facts, case law, statutory references, and legal reasoning" were to be filed in chambers and not in the clerk’s office. All such documents were to remain unavailable until the reply memoranda were given to the judge. A later order imposed heavier restrictions and also announced that the court would not take the time to "redact" or edit any of the memoranda. Either they would be entirely released or not at all.

The appeals court held that the practice of filing memoranda with the judge violated the First Amendment. "Whether viewed as a restriction on access or as a practical inconvenience, this protocol reverses the constitutional presumption of public access to documents submitted in conjunction with criminal proceedings," said the court.

Blanket sealing of documents ignores the constitutional requirement that judges must make specific findings. The First Amendment right of public access the court said, is "too precious to be foreclosed by conclusory assertions or unsupported speculation."

However, the First Circuit allowed the court time to review the documents, so long as a specific timetable would be followed. And, if the Providence Journal thought the court wasn’t acting "in a timely manner," the appeals court invited the newspaper back to petition for relief.

The Court of Appeals also considered whether the newspaper had a common law right to a "cutting-edge" display of "medleys of selected excerpts from a universe" of video material stored on a laptop computer. Using software called "Sanctions," no one tape contained exactly the material shown to the jury. But this decision was left to the trial court, in part because the record before the appeals court was incomplete and hard to decipher. The appeals court’s observation was that the technology was unique, the question had never been asked at the appellate level and the decision should be made by someone who had all the facts at hand.

The refusal to "redact" or edit the documents was held to be "unsupportable." Redaction is the usual ("time-honored") way of avoiding harm; the trial court is obliged to carry this out.

According to a survey done by the Providence Journal’s lawyer, only the federal district courts in New Jersey, Mississippi, Nebraska and the Southern District of Alabama follow this practice. However, some state courts may allow these kinds of shenanigans on an informal basis or pursuant to a rule and it is a practice that bears a watchful eye. As the appeals court said, "Courts long have recognized ‘that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system.’"