Odd Cross-Jurisdictional Unsealing Twist Related to Jordan Neely Case

From Southerland v. Bragg, decided Friday by Magistrate Judge Gabriel Gorenstein (S.D.N.Y.):

The complaint in this case seeks to obtain judicial records (and possibly other records) relating to Jordan Neely, who as a child was a witness at the New Jersey trial that resulted in plaintiff's conviction for murder. Over a decade later, Neely was the victim in a prosecution brought in New York against Daniel Penny, which resulted in an acquittal. Under a New York State statute, Criminal Procedure Law § 160.50, that acquittal in turn resulted in the sealing of the records in the criminal case against Penny (and thus of any documents therein that relate to Neely). Plaintiff's complaint seeks to have this Court unseal the New York state court records in the Penny case to obtain any records relating to Neely….

Plaintiff has filed "motion to unseal" the records in the Penny case, to which defendants have responded. This Court of course has power to seal and unseal its own records in accordance with applicable legal standards. But in this motion to unseal, plaintiff is not asking the Court to unseal a document that was filed on the docket in the case before it.

Instead, the motion asks this Court to unseal the New York state court records in the Penny case: that is, plaintiff seeks the unsealing of the very records that he seeks to obtain through the filing of the complaint. Whether the Court has power to order production of those records will be decided in due course as part of its consideration of the merits of this case. In the meantime, there is no basis for the Court to unseal those same records in response to a "motion to unseal."

Plaintiff's citation for authority to unseal, N.Y. Criminal Procedure Law § 160.50, further demonstrates the infirmity of this request given that § 160.50 addresses the power of "the court" to seal or unseal—plainly referring to the court in the criminal case, not some other court. Plaintiff's other citation[s] to authority—relating to various aspects of discovery—are completely irrelevant as the discovery rules do not authorize a court to afford a litigant the ultimate relief sought in the case. Accordingly, the motion to unseal is denied. This denial is of course without prejudice to plaintiff's right to continue litigating the merits of this case….

Defendants have [also] moved to stay discovery in this case pending the decision on their planned motion to dismiss or in the alternative for summary judgment—an application that plaintiff opposes. "[U]pon a showing of good cause a district court has considerable discretion to stay discovery pursuant to Fed. R. Civ. P. 26(c)." …

[G]iven that plaintiff has already sought to obtain the documents in the Penny case through a motion to unseal, we can assume that plaintiff would seek to obtain those documents. Plaintiff has already served interrogatories on defendants about the documents in the Penny case. Further, in his opposition, plaintiff states that he "seeks several subpoena's [sic] to assist in his search for the truth behind Jordan Neely's 'reported' mental illness issues." The breadth of discovery weighs against allowing discovery to proceed given that it encompasses obtaining the very documents at issue in this case or critical information about those documents. If it turns out that plaintiff is not entitled to the documents based on the lack of merit of his complaint, plaintiff will have obtained the relief he sought in the complaint through the subterfuge of discovery.

For these same reasons, serious prejudice would result from allowing discovery to proceed. The public interest embodied in the Criminal Procedure Law § 160.50 will have been defeated through plaintiff's use of the discovery process even if the Court finds his complaint lacks merit.

Finally, as to the strength of the motion, defendants make persuasive arguments that the complaint will have to be dismissed on a number of grounds, including the argument that the only possible constitutional claim against the defendants would be a claim of a Brady violation and that no such violation is possible since they were not the parties that prosecuted plaintiff in New Jersey. There are also significant comity issues given that plaintiff has elected not to pursue obtaining the documents from the trial court in the Penny case. In sum, [the] factors support a stay of discovery.

For Southerland's latest substantive challenge to his conviction, see State v. Southerland, decided two weeks ago by the N.J. intermediate appellate court, as well as the 2015 appeal in that case:

The State developed the following proofs at trial. The victim, C.N., lived in Bayonne with her fourteen-year-old son, J.N. Defendant and C.N. met in 2002 when they were in law school together and, in December 2005, defendant moved into C.N.'s apartment. J.N. described the relationship between C.N. and defendant as "crazy," explaining that they used to "fight every day." In January 2007, defendant moved to Texas, but he returned to the apartment in late March 2007.

On the morning of April 4, 2007, C.N. did not wake J.N. for school as she usually did. He got dressed and went to C.N.'s bedroom to say goodbye. The door was closed and, as he approached, J.N. testified that defendant stepped in front of the door, and prevented him from going inside. J.N. then left the apartment. He did not hear any sounds coming from inside C.N.'s bedroom that morning, nor had he heard anything unusual the previous night. J.N. stated he usually stayed in his room in the evening playing videogames and watching television.

When J.N. returned home from school at approximately 4:00 p.m., defendant was in the apartment, but C.N. was not there. J.N. asked defendant about C.N., and defendant told the child he had not seen the victim. J.N. noticed that a white blanket and some of his mother's personal "accessories" were missing from C.N.'s bedroom.

J.N. testified that defendant gave him some money to buy food at a take-out restaurant and then followed the child there on a bicycle. When they returned home, defendant stated he had to leave because his aunt was "sick[,] … in the hospital, tied to a machine, she's getting ready to die[.]" Defendant took "all his stuff with him" when he left. J.N. testified defendant used to borrow a Silver Kia from someone he identified as "his aunt" and, after defendant left that night, he never saw defendant or the car again.

Defendant's friend, C.V., testified that defendant borrowed her 2001 Kia on April 3, 2007 and, when he returned it in the early evening on April 5, it had two flat tires. Defendant stayed at C.V.'s home until April 9, when she drove him to a train station.

J.N. notified his school of his mother's disappearance and, two or three days later, he went to his grandmother's house in New York City to tell her C.N. was missing.

On the morning of April 7, 2007, a New York City Department of Transportation employee found the body of a woman inside a black duffel bag along the Henry Hudson Parkway in New York, about twenty-five miles from Bayonne. The employee testified he did not see the bag when he cleaned the area the previous day. New York City police officers retrieved the body and began an investigation….

Corey S. Shoock represents the New York officials.