The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ken White (Popehat), who attended this morning's hearing, reports; for more on the original order and the legal landscape surrounding it, see this post of mine from two days ago:
Yesterday I wrote about how United States District Judge John F. Walter issued an illegitimate prior restraint order against the L.A. Times, ordering it not to publish — and to depublish — information derived from a plea agreement made available on PACER, the federal court's docketing system. This morning Judge Walter held a hearing on the issue. I attended. Judge Walter vacated the order ….
Judge Walter explained that he had determined that defendant John Saro Balian's plea agreement should have been filed under seal, but that an error by a docketing clerk led to it being captioned as under seal but nevertheless available on PACER. He explained that he had been informed of the issue on Saturday July 14th, and that he was "terribly concerned" that Mr. Balian or his family would be subjected to physical harm if the information became public. He didn't specify the information, but from context it's perfectly clear: the plea agreement shows that Mr. Balian has agreed to cooperate against other figures in the investigation, who include the Mexican Mafia and Armenian crime families. Judge Walter said that he found that he found that prior restraint was justified because the harm threatened was "great and certain," based in part on his own experience trying gang and organized crime cases. As convention requires, he described himself as a strong proponent of the First Amendment, but said that that the circumstances justified the order, particularly because at the time he issued the order it wasn't clear how the Los Angeles Times reporter got the plea agreement.
Judge Walter explained that circumstances had now changed: he now knew how the plea agreement got out, had determined that it wasn't through misconduct by the press, noted that the government and defense had now had the opportunity to protect the defendant and his family, and noted that the information was now public. He therefore denied the request for a longer-term order and vacated his prior order, and said the Times could print what it wanted. But he didn't leave it without harsh criticism of the Times. He suggested that the reporter should have waited for an order from him rather than running the story once she heard the defense protest that the plea agreement should have been under seal. He suggested the Times was wrong to run information about a document that it knew was intended to be under seal — he described it as "exploiting an honest mistake by a docketing clerk." …
Ken has much more, including about the judge's criticisms of the Times, and why Ken thinks those criticisms are misguided, and in particular why the defendant-safety rationale is unsound; read the whole (not very long) post, but here's a sample:
Balian's lawyer and Judge Walter suggested that the story about the cooperation agreement put Balian in danger by notifying gangs that he was [cooperating]. This is utter nonsense. As I explained yesterday, multiple factors in the public record already strongly suggested that Balian was cooperating. He was a dirty [cop] pleading guilty to helping criminal organizations, he agreed to delay indictment for weeks, and he waived indictment and pleaded guilty early in the case to an information rather than an indictment. All of those factors suggest cooperation to anyone knowledgeable about federal criminal procedure.
Judge Walter's response to that point … was that "an inference or suspicion is not the same as knowing." That might be true for a court, but criminal organizations don't have high standards of legal proof to decide you're a cooperator. The Mexican Mafia does not wait for admissible proof establishing clear and convincing evidence. As Balian's case shows, these gangs have law enforcement sources. They are experienced with the justice system. They have lawyers experienced with the justice system. If the defense, government, and Court were not already assuming that the Mexican Mafia thought Balian was cooperating and protecting him accordingly, they were being wantonly reckless with his life. Moreover, the mere act of ordering a newspaper to depublish a story served to emphasize the cooperation far more widely and loudly than any newspaper story could have….
I can add one small procedural detail: The Times had also filed an emergency petition with the U.S. Court of Appeals for the Ninth Circuit, asking it to vacate the order. (The petition is likely moot now that the district court has already done the job.) The petition was filed under seal, and Balian's response was also labeled as being under seal. But I noticed last night that it actually appeared unsealed in the Ninth Circuit's electronic records system. (It has since been resealed, though it might now be unsealed given the district court's order.) The same erroneous publication problem that happened in District Court, then, repeated itself in the Ninth Circuit—just a reminder of how imperfect sealing procedures can be.