{"id":624822,"date":"2018-09-10T08:47:22","date_gmt":"2018-09-10T14:47:22","guid":{"rendered":"http:\/\/nmpolitics.net\/index\/?p=624822"},"modified":"2018-09-10T15:33:06","modified_gmt":"2018-09-10T21:33:06","slug":"improperly-sealed-lawyers-not-judges-selecting-which-nm-fed-court-documents-stay-secret","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2018\/09\/improperly-sealed-lawyers-not-judges-selecting-which-nm-fed-court-documents-stay-secret\/","title":{"rendered":"Improperly Sealed: Lawyers, not judges, selecting which NM fed court documents stay secret"},"content":{"rendered":"<div id=\"attachment_624825\"  class=\"wp-caption module image alignnone\" style=\"max-width: 771px;\"><img loading=\"lazy\" decoding=\"async\" class=\"size-large wp-image-624825\" src=\"http:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_5801-1170x878-771x579.jpg\" alt=\"United States Courthouse in Albuquerque\" width=\"771\" height=\"579\" srcset=\"https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_5801-1170x878-771x579.jpg 771w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_5801-1170x878-336x252.jpg 336w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_5801-1170x878-768x576.jpg 768w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_5801-1170x878.jpg 1170w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_5801-1170x878-800x600.jpg 800w\" sizes=\"auto, (max-width: 771px) 100vw, 771px\" \/><p class=\"wp-media-credit\">Marjorie Childress \/ New Mexico In Depth<\/p><p class=\"wp-caption-text\">The United States Courthouse in Albuquerque.<\/p><\/div>\n<p>Prosecutors and defense lawyers have shielded records from public view without a judge\u2019s order in New Mexico\u2019s federal courts, an apparent violation of the U.S. District Court of New Mexico\u2019s own rules, New Mexico In Depth has learned.<\/p>\n<p>Judges, not lawyers, are supposed to decide which documents are made available to the public and which should remain secret through an established protocol based in part on decades of case law: Attorneys must submit a written request asking a judge to seal records and a judge must consent before records are sealed.<\/p>\n<p>Despite this well-known standard, in numerous instances spread among three criminal cases, the New Mexico offices of the U.S. Attorney and the Federal Public Defender have decided unilaterally to make documents secret without a judge\u2019s order, according to a review of federal court records by NMID.<\/p>\n<p>It is not clear how many of the thousands of federal court records each year have been sealed this way, but one federal public defender says the practice has gone on for years.<\/p>\n<aside class=\"module align-left half type-aside\">\n<h3>About this article<\/h3>\n<p>This article comes from\u00a0<a href=\"http:\/\/nmindepth.com\/2018\/09\/04\/improperly-sealed-lawyers-not-judges-selecting-which-nm-fed-court-documents-stay-secret\/\" target=\"_blank\" rel=\"noopener noreferrer\">New Mexico In Depth<\/a>. Sign up for\u00a0<a href=\"http:\/\/nmindepth.us6.list-manage.com\/subscribe?u=1d2ab093d81b992e50978b363&amp;id=9294743d38\" target=\"_blank\" rel=\"noopener noreferrer\">their newsletter<\/a>.<\/p>\n<\/aside>\n<p>\u201cThere has been a long-standing practice in the District of New Mexico for parties to elect to file a document under seal, without prior approval of the district court,\u201d attorney John Robbenhaar wrote in an emailed response to questions from NMID.<\/p>\n<p>The revelation has one leading government transparency advocate urging the federal courts to \u201cstrongly consider changing its practices,\u201d especially in criminal cases where defendants\u2019 freedom is almost always at stake.<\/p>\n<p>\u201cIt\u2019s the judge who should be making the decision about what is sealed and what is open to the public, because a judge is impartial in the case,\u201d said Greg Williams, former board president of the New Mexico Foundation for Open Government.<\/p>\n<p>Prosecutors and defense lawyers \u201chave a particular interest that they\u2019re trying to protect, and it isn\u2019t their job to protect the public\u2019s interests,\u201d Williams said. \u201cThat\u2019s why it\u2019s of the utmost importance that a judge be required to authorize any sealing before it\u2019s done.\u201d<\/p>\n<p>The federal courts should adopt the standard used in New Mexico\u2019s state courts, where \u201ca much more rigorous requirement for sealing\u201d prevails, he said.<\/p>\n<p>\u201cThe judge is not permitted to seal until he or she has satisfied themselves that there are no alternatives to sealing and has limited the sealing to what is absolutely required,\u201d Williams said.<\/p>\n<p>In addition to running afoul of defendants\u2019 constitutional right to a public trial, Williams points out that secrecy breeds mistrust in government institutions including the courts, law enforcement, prosecutors and the Public Defender\u2019s Office.<\/p>\n<p>Mitchell Elfers, acting clerk for the U.S. District Court of New Mexico, did not respond to NMID\u2019s questions about the allegation that it is a longstanding practice in federal court for attorneys to seal records without judicial consent. Nor did he address questions about judicial oversight of how records generally get sealed here.<!--more--><\/p>\n<p>He did write in an email, however, that: \u201cThe onus is on all participants,\u201d including judges, \u201cto adhere to\u201d federal and local rules that spell out the process for sealing records.<\/p>\n<p>The sealing practice came to light in a case NMID has followed since early 2017. It arose from a\u00a0<a href=\"http:\/\/nmindepth.com\/2017\/05\/07\/feds-sting-ensnared-many-abq-blacks-not-worst-of-the-worst\/\" target=\"_blank\" rel=\"noopener\">controversial 2016 sting in Albuquerque<\/a> by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The operation generated 103 arrests, including a disproportionate number of black people, on mostly low-level drug charges and, in some cases, firearms offenses.<\/p>\n<p>Lonnie Jackson was one of 28 black people swept up in the undercover sting, a group that wound up behind bars in far greater numbers than those of other races when compared to the city\u2019s population.<\/p>\n<p>Jackson claims he was \u00a0targeted because of his race. Two others, Yusef Casanova and Diamond Coleman, have made similar claims. Their cases\u00a0<a href=\"http:\/\/nmindepth.com\/2018\/08\/23\/defense-lawyer-blasts-feds-for-secret-response-to-racial-profiling-claims\/\" target=\"_blank\" rel=\"noopener\">appear to include improperly sealed records<\/a>, too.<\/p>\n<p>Robbenhaar, Jackson\u2019s lawyer, has built a case to dismiss Jackson\u2019s methamphetamine distribution charge. Because of a drug trafficking conviction in the 1990s, Jackson faces decades in federal prison if he\u2019s convicted, even though he is charged in the current case with arranging the sale of a relatively small quantity of meth by federal standards.<\/p>\n<p>Through the course of litigation in Jackson\u2019s case, at least 11 documents \u2014 about 10 percent of the records in the case docket \u2014 have been filed under seal without a judge\u2019s order, mostly by prosecutors with the U.S. Attorney\u2019s Office, court records show.<\/p>\n<p>Those documents are sealed in their entirety, which federal case law says is nearly always overly secretive.\u00a0Officials should black out portions of documents that are appropriately shielded, and make the rest of those filings public.<\/p>\n<p>On July 24, Robbenhaar filed\u00a0<a href=\"https:\/\/www.documentcloud.org\/documents\/4807013-Motion-to-Unseal-in-Jackson.html\" target=\"_blank\" rel=\"noopener\">a motion to unseal<\/a>\u00a0the entire record in the case, writing that all the secrecy has violated Jackson\u2019s Sixth Amendment right to a public trial.<\/p>\n<p>Neither he nor Assistant U.S. Attorneys Norman Cairns and David Walsh asked a judge to seal any of the documents that remain secret, he noted \u2014 actions that appear to violate\u00a0<a href=\"https:\/\/www.documentcloud.org\/documents\/4807018-NM-Federal-Court-Rules.html\" target=\"_blank\" rel=\"noopener\">a court rule<\/a>\u00a0that requires both an attorney\u2019s request in the form of a motion and a judge\u2019s order granting the motion to seal a record. In the criminal justice system, judges \u201cgrant\u201d motions.<\/p>\n<p>The local federal court rule makes no mention of exceptions that allow lawyers to file records under seal without a judge\u2019s consent.<\/p>\n<p>Elfers, the court\u00a0clerk, said the judge in the Jackson case will consider Robbenhaar\u2019s motion and rule on whether to unseal the records.<\/p>\n<p>Robbenhaar attached to his motion a\u00a0<a href=\"https:\/\/www.fjc.gov\/sites\/default\/files\/2012\/Sealing_Guide.pdf\" target=\"_blank\" rel=\"noopener\">2010 publication<\/a>\u00a0from the Federal Judicial Center entitled \u201cSealing Court Records and Proceedings: A Pocket Guide.\u201d Created by Congress in 1967 to, among other tasks, \u201cconduct research and study of the operation of the courts of the United States,\u201d the center\u2019s governing board is chaired by the chief justice of the U.S. Supreme Court.<\/p>\n<p>Citing scores of circuit court and Supreme Court cases spanning decades, the pocket guide is a sort of best practices document. It lays out a seven-point \u201cprocedural checklist\u201d for sealing documents in federal courts:<\/p>\n<ul>\n<li>Absent authorization by statute or rule, permission to seal must be given by a judicial officer.<\/li>\n<li>Motions to seal should be publicly docketed.<\/li>\n<li>Members of the news media and the public must be afforded an opportunity to be heard on motions to seal.<\/li>\n<li>There should be a public record of permissions to seal.<\/li>\n<li>Sealing should be no more extensive than necessary.<\/li>\n<li>The record of what is sealed and why should be complete for appellate review.<\/li>\n<li>Records should be unsealed when the need for sealing expires.<\/li>\n<\/ul>\n<p>None of those criteria was met in the sealing of records in Jackson\u2019s case, Robbenhaar contends in his motion.<\/p>\n<p>Weeks later prosecutors responded to the motion \u2014 under seal, and without the permission of Chief U.S. District Judge William P. \u201cChip\u201d Johnson, who is presiding over Jackson\u2019s case. The secrecy of the response makes it impossible for NMID or the public to analyze the government\u2019s reasoning for sealing so many documents in the case.<\/p>\n<p>More broadly, it does not allow the public a chance to read the government\u2019s argument for why the huge racial disparities among those arrested in the ATF sting do not amount to illegal racial profiling.<\/p>\n<p>The U.S. Attorney\u2019s Office did not respond to a request for comment on this story.<\/p>\n<p>In Robbenhaar\u2019s\u00a0<a href=\"https:\/\/www.documentcloud.org\/documents\/4806969-FPD-Reply-to-Sealed-Response-in-Jackson.html\" target=\"_blank\" rel=\"noopener\">reply to the secret filing<\/a>\u00a0from the U.S. Attorney\u2019s Office, the longtime public defender said prosecutors\u2019 rationale for secrecy wasn\u2019t persuasive and added that journalists and the public have an interest in the case.<\/p>\n<p>Robbenhaar\u2019s publicly filed reply offers a glimpse into at least some of the prosecutors\u2019 purported reasons for secrecy. Among them: Prosecutors claim that unsealing their responses would jeopardize sensitive law enforcement techniques, including the use of paid confidential informants in the sting.<\/p>\n<p>Robbenhaar rejects that notion and says federal officials already have waived any claim to secrecy by discussing the sting\u2019s design with the\u00a0<i>Albuquerque Journal<\/i>\u00a0for a\u00a0<a href=\"https:\/\/www.abqjournal.com\/825137\/104-charged-in-federal-firearm-and-drug-crackdown-in-bernalillo-county.html\" target=\"_blank\" rel=\"noopener\">2016 front page article<\/a>\u00a0trumpeting the ATF operation\u2019s successes. He attached the article to his reply.<\/p>\n<p>NMID also has\u00a0<a href=\"http:\/\/nmindepth.com\/2017\/05\/15\/atf-used-traveling-well-paid-informants-in-abq-sting\/\" target=\"_blank\" rel=\"noopener\">reported extensively<\/a>\u00a0on the\u00a0<a href=\"http:\/\/nmindepth.com\/2017\/08\/23\/boyfriends-betrayal-abq-woman-jailed-after-atf-informant-lured-her-into-drug-deals\/\" target=\"_blank\" rel=\"noopener\">use of informants<\/a>\u00a0in the operation.<\/p>\n<p>Beginning in May 2017, NMID has published\u00a0<a href=\"http:\/\/nmindepth.com\/series\/stunginabq\/\" target=\"_blank\" rel=\"noopener\">more than a dozen stories<\/a>\u00a0on the ATF operation and its aftermath. The stories stoked\u00a0<a href=\"http:\/\/nmindepth.com\/2017\/06\/12\/black-community-wants-answers-on-atfs-albuquerque-sting-say-it-was-punch-in-the-face\/\" target=\"_blank\" rel=\"noopener\">outrage and calls for change<\/a>\u00a0from black community leaders and others in Albuquerque.<\/p>\n<p>Robbenhaar argues that \u201cthe government\u2019s hyper-sensitivity is not a proper ground for sealing a court document.\u201d Citing a previous federal appeals court opinion, he notes that \u201cMr. Jackson\u00a0is sympathetic to how the ATF\u2019s questionable conduct during the (ATF operation) would be embarrassing to the government, but all the same, sealing of judicial records is not considered appropriate if it is done merely to protect parties from embarrassment.\u201d<\/p>\n<p>Williams, the New Mexico transparency advocate, seized on Robbenhaar\u2019s arguments to drive home his contention that federal judges in New Mexico need to take more responsibility in ensuring greater public access to judicial proceedings.<\/p>\n<p>\u201cThe public\u2019s right of access to the government is exceedingly important, and that\u2019s no less true of judicial proceedings than any other aspect of government,\u201d Williams said. \u201cThe public has a particular interest in knowing how criminal proceedings are conducted. The public and the media act as a watchdog on the process and any time you limit access to the judicial process in criminal cases, then the process itself suffers.\u201d<\/p>\n<p>Williams and the Foundation for Open Government have successfully battled for a more transparent legal process in New Mexico\u2019s state courts.<\/p>\n<p>\u201cIt\u2019s absolutely in everyone\u2019s interest to have an open process: it protects the court from accusations of bias or wrongdoing, it protects law enforcement, it protects the defendants and anyone else who has any involvement,\u201d he said<\/p>\n<p>Williams said he doesn\u2019t know whether the sealing practice in New Mexico is in a minority among federal districts, \u201cbut I would say that the trend is going toward more transparency.\u201d<\/p>\n<p>He was not aware of the sealing practice in New Mexico\u2019s U.S. District Court until NMID brought it to his attention.<\/p>\n<p>\u201cI think that the public and even many lawyers were not aware that you could seal merely by checking a box when you file without permission from the court,\u201d Williams said. \u201cIt\u2019s a bit of an outdated practice, and many other federal district courts have changed their process to ensure greater transparency.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The practice is an apparent violation of the U.S. District Court of New Mexico\u2019s own rules.<\/p>\n","protected":false},"author":1,"featured_media":624825,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[161,706],"class_list":["post-624822","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-and-analysis","tag-judiciary","tag-transparency"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/624822","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=624822"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/624822\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media\/624825"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=624822"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=624822"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=624822"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}