Thursday, April 26, 2007

3C Rules On Document Sealing And Attorney Speech Rule

In US v. Wecht (decided April 12, 2007), the Third Circuit addressed three applications arising during the prosecution of the Allegheny County coroner (Wecht). The trial on the 84-count indictment, alleging that Wecht had used his public office for private financial gain, was stayed pending the Circuit’s resolution of the applications, which were:
1. A challenge by Wecht and several intervening media outlets to the constitutionality of Local Rule 83.1 of the US District Court for the Western District of Pennsylvania ("LR 83.1"), which limits attorney speech about pending cases;
2. The government’s appeal of the DC’s decision to grant the media outlets’ motion to unseal certain personnel records about FBI Agent Orsini ("the Orsini records"), who, according to Wecht, had led the investigation and who had signed three search warrants in the case; and
3. Wecht’s petition to disqualify the trial judge.
The most interesting part of the opinion involves the sealing and unsealing of the Orsini records. Briefly, the government sought to prevent or at least delay Wecht’s access to the Orsini records, first by seeking and obtaining permission to file a motion under seal, then by seeking an ex parte ruling as to whether it had to disclose the Orsini records to the defense, and then by obtaining a protective order prohibiting Wecht from reproducing the records or disclosing their contents in open court. This protective order was issued over Wecht’s objection and before the parties had briefed the propriety of the sealing. At a subsequent evidentiary hearing on Wecht’s motion to suppress, which challenged Orsini’s credibility, Wecht did not use the Orsini records to cross-examine Orsini (although Wecht had, by then, been permitted access to the records), explaining at oral argument before the 3C that he believed the protective order and another ruling by the DC precluded him from doing so.
After the suppression hearing, the DC denied Wecht’s motion to unseal the records but granted the intervening media outlets’ motion to unseal them. The DC stayed the unsealing order pending the 3C’s resolution of the question. The 3C ultimately concluded that the public has a common law right to the Orsini records. It cited several reasons for its conclusion: (1) the documents were filed with the government’s motion for in camera review, which established them as judicial records; (2) the district court evaluated their relevance and ruled that they must be disclosed as potential impeachment evidence; (3) the process by which the government investigates and prosecutes its citizens is an important matter of public concern; (4) there was little question that the particular documents at issue here are of significant interest to the public; and (5) the records were relevant to Wecht’s suppression motion. The 3C also ruled that the DC’s decision to unseal the records was appropriate pursuant to the trial court’s general discretionary powers
Judge Bright, in a concurring opinion on the sealing issue, concluded that the DC sealed the government’s ex parte motion without making the necessary findings justifying its decision. Thus, rather than holding the government to its burden, the DC sealed the documents and then required Wecht and the media to establish why they should be unsealed. The procedures followed by the DC, according to Judge Bright, were improper in and of themselves and had the effect of precluding Wecht from making use of the records to test the credibility of Orsini at the suppression hearing.
The majority and Judge Bright also differed with respect to the merits of Wecht’s recusal application. The majority reviewed Wecht’s complaints regarding the trial court’s rulings and its attitude toward the defense and concluded that Wecht had failed to satisfy the test set forth in Liteky v. United States, 510 U.S. 540, 555-56 (1994) (that is, by showing "the ‘deep-seated’ or ‘high degree’ of ‘favoritism or antagonism that would make fair judgment possible’"). Judge Bright, on the other hand, concluded that this was the "rare occasion when a judge’s judicial rulings demonstrate the appearance of bias because they began with and were possibly tainted by improper, or at least highly questionable, ex parte advocacy by the Government." This ex parte advocacy, in Judge Bright’s view, amounted to "an extrajudicial source and permeated the rulings of the District Court such that one cannot avoid discerning the appearance of partiality." The dissent summarized: "In this case, the Government’s ex parte practice appears to have influenced the Court to exclude defense counsel from the adversary process with respect to the Orsini documents. The chain of motions and proceedings that followed in part flowed from the secrecy surrounding the Orsini documents. Moreover, the flood of evidence that the Government transferred to the defense, as trial exhibits, and the Government’s efforts to keep Orsini’s record hidden from the defense and the public raises serious concerns about the propriety of the Government’s strategy. All parties in this case, through their counsel, have an obligation to assist the courts and to see that justice is administered fairly."
With respect to the challenge to LR 83.1, the 3C held, without reaching the constitutional questions, that speech should be limited only to the extent that it is "substantially likely to materially prejudice ongoing criminal proceedings," rather than limiting comments that have a "reasonable likelihood of prejudice,"which was the standard incorporated in LR 83.1. It noted that its holding applies to the local rules of all the district courts in the Circuit.

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