Can the court seal details related to federal prosecutor misconduct allegations?

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Taken from Gannett Media Corp. vs. United States, decided yesterday by the Second Circuit (judges Reena Raggi, Joseph Bianco and Sarah Merriam):

This appeal stems from a criminal case in which multiple defendants have been charged with various federal charges related to an alleged insurance fraud scheme and a scheme to defraud certain US government entities. In October 2020, the district court granted defendants’ motions to dismiss the indictment on grounds of speed of trial and, in doing so, pointed to “repeated government delays, resulting in the conditional disqualification in the interests of justice, the government’s inability to produce by July December 31, 2019, the deadline for any material from several of the devices seized more than a year earlier, and the inability of the government to approach its eDiscovery obligations with the vigor necessary to manage the ESI of this volume.” The district court, however, determined that the dismissal should be without prejudice given the absence of bad faith.

After the filing of a new indictment, the defendants sought reconsideration of the dismissal of the previous indictment without prejudice, arguing that the dismissal with prejudice was justified based on newly discovered evidence that the government had misconduct, including making intentionally misleading statements and omissions. to the court. The district court ordered the government to respond, in affidavit form, to the allegations and, during argument on the motion, found that an evidentiary hearing was necessary to address the district court’s concerns about the conduct of the government and its previous representations to the court. The defendants pleaded guilty before the hearing and, under their plea agreements, withdrew their motions for reconsideration.

However, on April 22, 2022, the District Court issued an order noting that, consistent with its inherent power to oversee the conduct of members of its bar, “further investigation may be warranted where it is unclear whether the Government lawyers intentionally made a misleading statement to the court.” Thus, the district court considered “whether the Court alone should resolve these factual disputes, notwithstanding the motions withdrawn” by the defendants. In addition, the district court ordered that if the government takes the position that no further misconduct investigation by the district court is necessary, it must file a brief setting forth the basis for that position, including all ” the government’s potential plan to pursue the problems internally.”

In a decision and order dated July 20, 2022, the District Court granted the government’s motion to file its submission ex parte and under seal. The District Court determined, based on the government’s submission and affidavit in support of its sealing motion (collectively, the “Sealed Submissions”), that it “would take no further action sua sponte to investigate the allegations that were the subject of the planned investigation. hearing of witnesses…”

Gannett filed motions to intervene and to review the July 20 order. On September 19, 2022, the district court granted Gannett’s motion to intervene and granted in part and denied in part his motion for reconsideration. In particular, the district court held that it would unseal the sealed submissions, insofar as they revealed “the internal actions that the office of the United States Attorney for the Western District of New York…intends to take.” to ensure the type of discovery failures that occurred in this case do not happen again” and “the general internal processes available within the Department of Justice to conduct” an attorney misconduct review, but keep sealed portions of the sealed submissions (1) naming officials involved in the U.S. Attorney’s Office’s internal reform efforts and (2) regarding “the status of any Justice Department reviews of attorney misconduct issues “.

Gannett appealed, and the court largely agreed with Gannett:

“Court records are subject at common law to a powerful and fundamental presumptive right of public access that predates even the U.S. Constitution.” As we explained, “[t]he presumption of access is based on the need for federal courts, albeit independent indeed, particularly because they are independent in order to have some accountability and in order for the public to have confidence in the administration of justice.” Once a court finds that the documents are court documents and so the common law presumption of access is triggered, the court must determine the weight of that presumption and then “weigh competing considerations.” That presumption Common law access requires a court to make specific findings, after careful consideration of all competing claims for and against access, before sealing a writ.

Public access to court documents is also protected by a “qualified First Amendment right.” “Indeed, First Amendment protection has been considered stronger than its ancestor and common law counterpart.” … However, as with the common law right of public access, the First Amendment right is “not absolute”. Thus, “Documents may be sealed if specific, findings are made on file demonstrating that sealing is essential to preserve higher values ​​and is closely tailored to serve that interest.” Sealed bids, as the district court found, are court documents subject to a presumptive right of public access under both First Amendment and common law rights.

We conclude, however, that the District Court failed to make the specific findings required that would support the redactions of bids sealed under either presumption. The district court’s two justifications for the redactions were (1) the need “to protect the robust and candid operation of internal Justice Department processes” and (2) “privacy concerns.” These wide [and general] however, the findings are insufficient to justify the redactions in the sealed submissions.

Further, to the extent that the government presented arguments on appeal to support the district court’s findings in support of redactions under the common law presumption, we are not persuaded. First, we emphasize that there is a strong public interest in how criminal cases are conducted, including the handling of any allegations of prosecutorial misconduct during the discovery phase of the case.

The district court itself acknowledged that “[t]The Court expects all attorneys appearing before it to conduct themselves with the utmost candor, but this expectation is particularly strong when dealing with attorneys representing the United States of America “because they are “guardians of the public interest”. Here, the district court found that “[t]there is no doubt that inaccurate statements were made by the government in these proceedings” and that there was “credible evidence on the record to support the defense position that in fact , there were intentional misrepresentations by the government to the Court. See also App’x at 153 (district court noting that “public confidence in our criminal justice system…has been affected by this case” and “the [prosecutors’] the handling of this case…is not the way the criminal justice system is supposed to work”). Factual disputes regarding this issue were to be resolved at the scheduled evidentiary hearing.}

Therefore, the sealed bids, which ultimately convinced the District Court that an independent judicial inquiry under its Article III supervisory powers of the prosecutor’s alleged misconduct was unnecessary, carry a strong presumption of public access in the circumstances of this case…. “As our precedent makes clear, a court exercises the judicial function not only when it adjudicates motions now before it, but also when it properly exercises its inherent supervisory powers.” … “The press not only publishes information about trials, but guards against miscarriages of justice by subjecting police, prosecutors and court proceedings to intense public scrutiny and criticism.” … The District Court did not give sufficient weight to this presumption in its analysis.

Second, in terms of countervailing considerations, it is unclear how widespread “confidentiality concerns” or the “robust and candid operation” of internal Justice Department processes can outweigh the strong presumption in this case. As the district court noted, “evidence of potential prosecutorial misconduct that exists in this case is on the public docket, available for review by Gannett or anyone else interested in the case.” Thus, there is no concern with disclosing the identity of prosecutors accused of misconduct.

The district court also clarified that the sealed submissions do not contain any additional findings or evidence of government misconduct and, therefore, they cannot be equated with internal disciplinary records. In short, the government has not explained how the disclosure of its submissions would interfere with any potential internal government process related to alleged prosecutorial misconduct. Indeed, the government explicitly stated before the district court that it was not invoking any deliberative procedural privilege as a ground for sealing.

Similarly, although the district court redacted the names of U.S. Attorney’s Office supervisors and senior Justice Department officials involved in remedial efforts to address these allegations, the government has not sufficiently explained how disclosing the identity of these involves confidentiality issues sufficient to warrant sealing, particularly when the government often publicly discloses the identity of senior officials involved in its decision-making procedures.

In summary, while we are skeptical of the government’s ability to provide a sufficient basis to support the specific findings that would be necessary to justify the redactions of the sealed bids, we will refer the case to give the district court the opportunity to fully consider the government’s arguments. on this issue and, if the district court determines that continued sealing is warranted, to make more specific findings in support of the redactions under our precedent.

Congratulations to Michael J. Grygiel and Kelly L. McNamee of Greenberg Traurig, LLP, who represent Gannett. Thanks to Steven Getman for the pointer.

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