No Sealing of Letters of Support in Sentencing for Police Brutality

From U.S. v. George, decided Tuesday by Judge Kenneth Bell (W.D.N.C.); for more on the underlying case, see this Fourth Circuit decision:

Whether arising under the First Amendment or the common law, the public's right to access judicial proceedings "may be abrogated only in unusual circumstances." Under the First Amendment standard, a "denial of access" to publicly filed documents "must be necessitated by a compelling … interest and narrowly tailored to serve that interest." This high standard is required because public access "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Judges are not accountable to the public like elected officials, thus "[a]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." …

Defendant asks to file his Letters of Support under seal because this "case has received high public/media attention … [and] to preserve [his] privacy and safety." However, the Court finds that sealing the Letters of Support is inconsistent with the First Amendment and the common law right to public access. While the Defendant states that his "privacy and safety" are at risk, he does so only in a conclusory manner and does not specifically explain how public access to the Letters of Support would cause him any harm. Hence, he has failed to provide the specific information required by Local Rule 49.1.1 to aid the Court in determining whether sealing is consistent with the First Amendment or common law.

Nor has he presented to the Court any authority for his request. Indeed, the mere presence of media scrutiny without more particularized proof of a compelling privacy interest is insufficient to support the sealing of court filings over the requirements of the First Amendment. Thus, the Court will deny the Motion and only consider Letters of Support contained in the public record.

The Motion had read, in its entirety:

Robert Michael George by and through his counsel of record, Myra Cause, and pursuant to Local Rule 49.1.1, respectfully requests that this Court to allow him to file his Letters of Support of Resentencing under seal based upon the sensitive nature of the information contained therein, including sensitive information supporting the request within the motion. This case has received high public/media attention and we respectfully ask the Letters of Support of Resentencing to be filed under seal to preserve Mr. George's privacy and safety.

See also another such decision, in the NIXVM sex cult case.

Comments

[John F. Carr]

In New England secret sex abuse news, a state judge ordered the case of Hadley Palmer sealed, presumably because she is rich and it would be embarrassing to have the details come out.

[abhudd47]

I agree with the judge's ruling in this case with the reasoning he gave (namely that the petitioner failed to make a compelling argument, or any argument really, in support of his request). However, I do find the argument in the NXIVM case to be compelling. I feel that public disclosure of letters of support COULD have a chilling effect on people's willingness to submit letters in future cases. I know people and judges in particular don't tend to care a whole lot about things that only harm convicted criminals, but the potential harm here is real nonetheless...

[tkamenick]

It doesn't matter if it has a "chilling effect" or not. The public right to access to our systems of justice should be paramount. And honestly, not having victim impact statements during sentencing isn't a huge loss. Punishment for crimes is (should be) about the public more than the victim.

[Rossami]

No, actual justice should be paramount. If a policy has a chilling effect on participation by those with evidence relevant to a case, that deprives the court in information they might need to make their decision.

Whether victim impact statements are sufficiently important to a court decision is a reasonable question but the general premise that the chilling effect should never matter is simply wrong.

[Purple Martin]

What information the court "might need," may that be?

"If a policy has a chilling effect on participation by those with evidence relevant to a case..." is begging the question. Evidence relevant to the case is presented during the trial and almost never under seal for the reasons cited in the decision. Evidence relevant to sentencing should likewise be public, for the same reasons.

And "Letters of Support of Resentencing" (including victim impact statements) rarely include such defense evidence but are, instead, either opinions about the better-than-you'd-think offender, or a call to the emotions of sympathy or revenge on behalf of the victims.

In either case, if they might have an effect on the sentence imposed, they must be public. Again, that's for the same reasons, and for "actual justice."

[tkamenick]

This is coming up in states that have adopted ill-advised "Marsy's Laws", giving victims additional constitutional rights. Many victims have requested sealing or anonymity when giving their victim impact statements for sentencing, and some courts have permitted that. Or have closed courtrooms during victim statements, or issued orders prohibiting the media from identifying them.

[John F. Carr]

"orders prohibiting the media from identifying them"

Those should be illegal under the precedent striking down rape shield laws.