F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 28 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff,
v.
CESAR GONZALES aka Cougar;
HECTOR GABRIEL LOPEZ aka
Shaggy; URIEL MARTINEZ aka Duke; No. 97-2064
CESAR JUAREZ aka Pelon; GUSTAVO
AZCUENAGA aka Mono; LUIS
DELCID aka Stranger; ERNEST
GUEVARA aka Yogi; RUSSELL
BARBOA aka Chino; JOHN ACOSTA
aka Lefty; BYRON ZAMORA aka
Trigger; OSCAR VILLA aka Wino;
RICHARD ACOSTA aka Shorty;
ROGER PRECIADO aka Cartoon;
JAIME VILLA aka Psycho; MARCOS
MAZZINI aka Lucky; VINCENT
NAJAR aka Stalker; JASON
DELATORRE aka J Bone; CHARLES
TAYLOR aka Yogie; URIEL
BUSTAMONTE aka Caps; MICHAEL
MORA aka M&M; DAVID GALLARDO
aka Cyclone; NEAL POLUS aka Troy
Thompson aka Evil; FRANK LARA, aka
Spooky,
Defendants - Appellees,
ALBUQUERQUE JOURNAL,
Intervenor,
NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS;
NEW MEXICO CRIMINAL DEFENSE
LAWYERS ASSOCIATION,
Amici Curiae.
UNITED STATES OF AMERICA,
Plaintiff,
v.
CESAR GONZALES aka Cougar;
CESAR JUAREZ aka Pelon; GUSTAVO
AZCUENAGA aka Mono; LUIS No. 97-2095
DELCID aka Stranger; ERNEST
GUEVARA aka Yogi; RUSSELL
BARBOA aka Chino; JOHN ACOSTA
aka Lefty; BYRON ZAMORA aka
Trigger; OSCAR VILLA aka Wino;
RICHARD ACOSTA aka Shorty;
ROGER PRECIADO aka Cartoon;
MARCOS MAZZINI aka Lucky;
VINCENT NAJAR aka Stalker; JASON
DELATORRE aka J Bone; CHARLES
TAYLOR aka Yogie; URIEL
BUSTAMONTE aka Caps; NEAL
POLUS aka Troy Thompson aka Evil,
Defendants-Appellants,
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ALBUQUERQUE JOURNAL,
Intervenor,
NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS;
NEW MEXICO CRIMINAL DEFENSE
LAWYERS ASSOCIATION,
Amici Curiae.
UNITED STATES OF AMERICA,
Plaintiff,
v.
CESAR GONZALES aka Cougar;
URIEL MARTINEZ aka Duke; CESAR
JUAREZ aka Pelon; GUSTAVO No. 97-2101
AZCUENAGA aka Mono; LUIS
DELCID aka Stranger; ERNEST
GUEVARA aka Yogi; RUSSELL
BARBOA aka Chino; JOHN ACOSTA
aka Lefty; BYRON ZAMORA aka
Trigger; OSCAR VILLA aka Wino;
RICHARD ACOSTA aka Shorty;
ROGER PRECIADO aka Cartoon;
MARCOS MAZZINI aka Lucky;
VINCENT NAJAR aka Stalker; JASON
DELATORRE aka J Bone; CHARLES
TAYLOR aka Yogie; URIEL
BUSTAMONTE aka Caps; MICHAEL
MORA aka M&M; DAVID
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GALLARDO aka Cyclone; NEAL
POLUS aka Troy Thompson aka Evil,
Defendants,
and
HECTOR GABRIEL LOPEZ aka
Shaggy; JAIME VILLA aka Psycho;
FRANK LARA aka Spooky,
Defendants-Appellants.
ALBUQUERQUE JOURNAL,
Intervenor,
NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS;
NEW MEXICO CRIMINAL DEFENSE
LAWYERS ASSOCIATION,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-95-538-MV)
William S. Dixon (Charles K. Purcell with him on the briefs), Rodey, Dickason,
Sloan, Akin & Robb, P.A., Albuquerque, New Mexico, for Intervenor/Appellant
Albuquerque Journal.
Gail J. Evans, Hannum & Evans, Albuquerque, New Mexico, for Appellees Cesar
Gonzales, Cesar Juarez, Gustavo Azcuenaga, Luis Delcid; Ernest Guevara;
Russell Barboa; John Acosta; Byron Zamora; Oscar Villa; Richard Acosta; Roger
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Preciado; Marcos Mazzini; Vincent Najar; Jason Delatorre; Charles Taylor; Uriel
Bustamonte; and Neal Polus.
Marc H. Robert, Barnett, Allison & Robert, Albuquerque, New Mexico, for
Appellees Hector Gabriel Lopez, Jaime Villa, and Frank Lara.
Steven G. Farber, Santa Fe, New Mexico, and Barbara Bergman, Albuquerque,
New Mexico, filed an amici curiae brief for National Association of Criminal
Defense Lawyers and New Mexico Criminal Defense Lawyers Association.
Before ANDERSON, McKAY, and BRISCOE, Circuit Judges.
ANDERSON, Circuit Judge.
We must determine in this case whether the press has a constitutional,
common law, or statutory right of access to court-sealed fee, cost, and expense
applications and related information filed under the Criminal Justice Act (“CJA”),
18 U.S.C. § 3006A, by court-appointed criminal defense attorneys, as well as
transcripts from hearings and court orders concerning those applications. If there
is a right of access, then at what time and under what conditions.
Construing Intervenor Albuquerque Journal’s appeal and the Defendants’
cross-appeals as petitions for writs of mandamus, 1 we hold as follows: (1) there
1
Because “mandamus is the proper vehicle for reviewing court orders
sealing or redacting court documents in criminal proceedings,” United States v.
McVeigh, 119 F.3d 806, 810 (10th Cir. 1997) (per curiam), cert. denied, 118 S.
(continued...)
-5-
is no First Amendment right of access to documents provided as backup detail for
CJA vouchers, or certain related motions, orders, and transcripts; (2) there is no
right of access to CJA vouchers or related information pursuant to the common
law because, even if relevant common law previously existed on this subject, it
has been supplanted by the CJA; and (3) the press has no statutory right of access
to the materials in question, but the court has discretion to release certain material
subject to the conditions outlined below. Applying these principles to this case,
we hold that the court acted within its discretion in ordering the release of the
CJA vouchers (as defined below) at the end of all Defendants’ sentencing
hearings and in ordering the release of the total amounts expended in individual
cases at the end of each Defendant’s sentencing hearing; but the court abused its
discretion in ordering the unconditional release of the sealed backup documents,
motions, orders, and transcripts at the end of all Defendants’ sentencing hearings
because the court incorrectly concluded that the interests governing whether or
not particular information should be redacted or remain under seal terminate at
1
(...continued)
Ct. 1110 (1998) (“McVeigh II”), we treat the appeal and cross-appeals as
petitions for writs of mandamus. Although there may be a strong argument in
favor of reviewing the cross-appeals as appeals from a collateral order under
Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541 (1949), we would reach the
same result applying the applicable standards under either doctrine.
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the conclusion of the trials. Accordingly, we deny the Journal’s application for a
writ of mandamus and grant a writ of mandamus to the Defendants.
I.
BACKGROUND
Twenty-three Defendants were indicted by a federal grand jury in the
District of New Mexico for various offenses, including murder, attempted murder,
drug distribution, and racketeering. All of the Defendants are indigent, and
accordingly, the district court appointed each Defendant counsel pursuant to the
Criminal Justice Act, 18 U.S.C. § 3006A. 2 The Defendants are allegedly members
of the “Sureno 13” street gang in Albuquerque, New Mexico, and the case has
attracted wide-spread media attention. Several of the Defendants (“Cooperating
Defendants”), as well as other non-indicted individuals, entered into agreements
with the government to cooperate in the investigation and prosecution of the case.
Some of these Cooperating Defendants will testify at the trials of the other
Defendants and several of the Cooperating Defendants and cooperating
individuals have been admitted into the Witness Security Program, 18 U.S.C.
§§ 3521-28. Many of the remaining Defendants (“Non-Cooperating Defendants”)
2
One Defendant, Uriel Martinez, has not been apprehended.
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have also entered into plea agreements with the government. The government
seeks the death penalty as to three Defendants. R. Vol. I at 164-65.
A. The CJA Payment Process
Pursuant to the CJA and the Administrative Office of United States Courts’
Guide to Judiciary Policies & Procedures, attorneys appointed by the court to
represent indigent defendants in criminal cases are paid by the government out of
funds appropriated for that purpose. These attorneys claim compensation and
expenses by submitting prescribed forms: CJA form 30 for death penalty cases
and form 20 for all other cases. 3 These forms are generally submitted at the end
of trial in non-capital cases, but the court may grant an attorney’s request for
interim billing, which is more common in capital cases because the proceedings
are typically longer. The forms require the attorney to list any expenses incurred
and to categorize his or her time spent in each of the following areas:
arraignment and/or plea, bail and detention hearings, motions hearings, trial,
sentencing hearings, revocation hearings, appeals court, other in-court hearings,
3
The rate of compensation for counsel is not to exceed the statutory
maximum and may not exceed a total amount in each case unless the total
maximum amount is waived by the district court upon approval by the chief judge
of the circuit. See 18 U.S.C. § 3006A(d). In death penalty cases, the rate of
compensation is not to exceed the statutory maximum, but there is no statutory
limit on the total amount that may be paid. See 21 U.S.C. § 848(q)(10)(A).
-8-
interviews and conferences, obtaining and reviewing records, legal research and
brief writing, travel time, and investigative and other work. The voucher consists
of a single page. A current version of form 20 is attached hereto.
On application by appointed counsel, and after an ex parte hearing, the
court may also allow the defense to engage the services of law clerks,
investigators, experts in various fields, and others, whose compensation is not to
exceed amounts specified by statute, unless that amount is waived. See 18 U.S.C.
§ 3006A(e)(3); 21 U.S.C. § 848(q)(10)(B). 4 Requests for compensation for these
services are submitted on CJA form 31 for death penalty cases and on form 21 for
all other cases. These forms require information as to the type of services
performed, such as psychiatric, fingerprint, or ballistics, and an itemization of
services rendered and expenses incurred. These forms are also generally
submitted at the end of trial in non-capital cases, but the court may allow interim
billing and generally does so in capital cases. Both forms 21 and 31 consist of a
single page. A current version of form 21 is attached hereto.
In addition to the information contained on forms 20, 21, 30, and 31, the
applicants must submit backup documentation, including detailed time sheets
4
We have repeatedly emphasized that defendants must provide the district
court with explicit detail showing why the requested services are “necessary” to
an adequate defense and what the defendant expected to find by using the
services. See, e.g., United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir.
1995); United States v. Mundt, 508 F.2d 904, 908 (10th Cir. 1974).
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specifying the specific services performed and receipts for expenses incurred.
The district court has discretion as to the amount of supporting detail it will
require, and therefore the amount of detail contained in the backup documentation
varies depending on the judge as well as the complexity of the case. Motions and
orders relating to the appointment of individuals other than counsel as well as
transcripts from ex parte hearings related thereto are generally placed under seal.
CJA vouchers and backup documentation related to services of counsel and non-
counsel and any motions, orders, and hearing transcripts related to services of
counsel are not required to be placed under seal. The practice of sealing these
materials varies with the circumstances.
Our analysis, then, deals with three categories of information: (1) the CJA
forms (vouchers) themselves; (2) backup documentation to the vouchers; and (3)
motions, orders, and hearing transcripts. 5 For convenience in this opinion we
refer to the first type of document, which includes only the single page form, as
CJA forms or vouchers. The second category of documents includes any material
attached to the vouchers, including receipts, time sheets, and other detailed
5
The sealed record on appeal contains transcripts of interviews with
numerous Defendants conducted by attorneys for several other Defendants. Our
reading of the district court’s order leads us to believe that these transcripts are
not included in those “CJA-related documents, motions, orders, and transcripts”
to be released after the last remaining defendant is sentenced. United States v.
Gonzales, No. CR-95-538-MV, 1997 WL 155403, at *13 (D.N.M. Feb. 11, 1997).
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information, which we will refer to as backup documentation. The third category
includes any motions, orders, and transcripts of hearings regarding the
appointment and compensation of attorneys, experts, law clerks, investigators, and
others. In addition, in this case the total amounts to be released under the district
court’s order are compiled by the court clerk from the vouchers, but they are not
the entire or partial vouchers themselves, so we are also dealing with a category
of extracted and summarized information.
B. Proceedings in the District Court
In this case, the court granted, on November 28, 1995, defense counsels’
joint motion to submit requests for compensation on a monthly basis pursuant to
18 U.S.C. § 3006A and the rules governing the administration of the CJA,
specifically, VII Administrative Office of United States Courts, Guide to
Judiciary Policies & Procedures (“AO Guide”), chap. II, part C, § 2.30; chap. III,
part A, § 3.06; app. E, F, because of the complexity and the anticipated length of
the proceedings. But in doing so, the court required that the documentation
supporting requests for interim payments contain a very high level of detail,
including information that, according to the district court, would reveal privileged
information. Supplemental R. Vol. I, Tab 2073 at 5-6 (district court order
granting in part defendants’ motion to stay pending appeal). Realizing that some
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of the materials submitted to the court had not been placed under seal, Defendants
jointly moved the court to place all vouchers, backup documentation, motions,
and orders related to CJA billing under seal. On February 20, 1996, the court
granted the motion. Additionally, all CJA-related hearings have been held ex
parte and the transcripts of those hearings are sealed.
On July 26, 1996, the Albuquerque Journal filed a motion to unseal all CJA
vouchers, backup documentation, motions, orders, and other documents that had
been filed, as well as the hearing transcripts. The government consented to the
motion, “except to the extent that unsealing of filings would disclose the
identities or location of cooperating witnesses or informants.” R. Vol. II, Tab 923
at 4. The Defendants opposed the motion.
Construing the motion as a petition for a writ of mandamus pursuant to 28
U.S.C. § 1361, the district court, on February 11, 1997, ordered that the clerk
release (1) the total attorney fees and overall total paid through CJA funds as to
each Defendant as soon as that Defendant was sentenced, 6 and (2) all of the other
CJA materials, that is, the vouchers, backup documentation, motions, orders, and
hearing transcripts pertaining to all Defendants, as soon as the last remaining
6
Because some of the Defendants had already been sentenced at the time of
the district court’s order, the court ordered the immediate release of the totals as
to those defendants, and those amounts have already been made public. Since
then, many other defendants have been sentenced, and those amounts have also
been made public. Obviously, this case is moot as to that particular information.
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Defendant had been sentenced. The court based its order primarily on the theory
that the press has a qualified First Amendment right of access to the information
in question, but that the interests of the Defendants and a fair trial outweighed
those of the press until the end of trial. The court held, alternatively, that the CJA
statutory scheme supplants the common law and embodies traditional concepts of
confidentiality, giving the court discretion to seal documents when fair trial or
privacy interests are threatened.
C. The Appeal
The Albuquerque Journal appeals from the district court’s order, arguing
that under the First Amendment, the common law or the CJA statute, all of the
CJA-related vouchers, backup documentation, motions, orders, and hearing
transcripts should be released immediately, or, in the alternative, that the court
should narrowly tailor its restriction on the right to access by sealing only certain
documents and by redacting information in others.
The Cooperating Defendants and Non-Cooperating Defendants have each
filed a cross-appeal. 7 They contend that the court’s order violates the Defendants’
7
Although the Cooperating Defendants have interests peculiar to their
specific situations, they join the arguments made in the Non-Cooperating
Defendants’ briefs. Answer Br. & Br. in Chief for Lara, et al. at 1-2. The
distinct issue that the Cooperating Defendants raise—and that the Non-
(continued...)
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right to a fair trial, protection against self-incrimination, attorney-client privilege,
attorney work product, equal protection, and privacy interests, and that to protect
those rights, the backup documentation, motions, orders, and hearing transcripts
must remain permanently sealed. They do not dispute, however, the release of the
total amounts expended on each Defendant or the release of properly redacted
vouchers at the end of all proceedings. Amici curiae National Association of
Criminal Defense Lawyers and New Mexico Criminal Defense Lawyers
Association urge us in a joint brief to do whatever is necessary to ensure that
defendants facing the death penalty have effective assistance of counsel through
confidential attorney-client communications and trial strategies. Our analysis
disposes of both the appeal and cross-appeals.
Pending this appeal, the district court has stayed that portion of its order
which would release all of the CJA materials at the conclusion of all proceedings.
7
(...continued)
Cooperating Defendants agree with—is that information contained in the backup
documentation may jeopardize the safety of individuals who have cooperated with
the government, especially those who are now in the Witness Protection Program.
Disclosure of this information will not only hurt those who have aided the
government in this case, but it will also discourage future defendants, informants,
and witnesses from cooperating with the government. Id. at 4-8.
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II.
DISCUSSION
In determining whether to grant a writ of mandamus, we consider the
following “‘nonconclusive guidelines’”:
“(1) whether the petitioner seeking the writ has no other adequate
means to secure the relief desired;
(2) whether the petitioning party will be damaged or prejudiced in a
way not correctable on appeal;
(3) whether the district court’s order constitutes an abuse of
discretion;
(4) whether the court’s order represents an often repeated error and
manifests a persistent disregard of federal rules; and,
(5) whether the district court’s order raises new and important
problems or legal issues of first impression.”
McVeigh II, 119 F.3d at 810 (quoting United States v. Roberts, 88 F.3d 872,
882-83 (10th Cir. 1996)).
The first and fifth factors are satisfied here. The second factor is
applicable insofar as it asks whether the Albuquerque Journal could have any
wrong addressed in a direct appeal. The third and fourth factors are “inextricably
linked” such that the case “really boils down to whether the district court abused
its discretion in sealing and redacting the documents here sought by petitioners.
That requires an analysis of whether the documents are subject to the
[Albuquerque Journal’s] First Amendment and common law rights of access, and
whether the district court clearly violated a legal duty in its assessment of how
those rights apply to the documents.” McVeigh II, 119 F.3d at 810-11.
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A. The First Amendment
The Albuquerque Journal argues that it has a First Amendment right of
access to all of the CJA materials. Although we avoid deciding constitutional
issues where narrower grounds for a decision exist, see McKenzie v. Renberg’s
Inc., 94 F.3d 1478, 1488 n.11 (10th Cir. 1996), cert. denied, 117 S. Ct. 1468
(1997), since the district court here resolved the issue on constitutional grounds
and since the statute does not address all grounds of the Albuquerque Journal’s
argument, we address the constitutional issue first.
1.
We make two initial points at the outset in order to place the Journal’s
constitutional arguments in perspective.
First, to the extent the Journal bases its arguments on a claim that the
public has a right to know how public funds are being spent in individual criminal
cases, its logic is spoiled by the facts. The Journal does not seriously dispute that
it cannot get the type of data it seeks here from the Department of Justice with
respect to prosecution costs, 8 or from Federal Public Defender Offices (which
8
The United States Attorney’s Office pays its attorneys and other staff from
funds approved by the Attorney General, see 28 U.S.C. §§ 548-50, and
investigative, expert and other services performed by the FBI and other
governmental agencies are paid out of applicable agency budgets. Although the
(continued...)
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handle up to 75% of the indigent defendant caseload in districts where such
offices are located). 9 Those two sources of expenditures, when combined,
account for the bulk of public funds spent on criminal prosecutions involving
indigent defendants—all unavailable to the press in the type of detail sought here.
The Journal’s fall-back refinement of its position is that a constitutional
right of access springs into being as to the public funds here because a judge is
involved in approving the requests for funds (presumably as opposed to judicially
unsupervised expenditures by the government, for example). That brings us to
our second point.
Just as trial-related expenditures, reviews, requests, and approvals for funds
in the Department of Justice and Federal Public Defender’s Offices are
administrative, not judicial, functions, so is the CJA voucher process. Forms 20,
8
(...continued)
Department of Justice is subject to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, we have been directed to no authority thereunder that provides for
the release of detailed case-by-case information, much less the minute detail
sought in this particular case.
9
See Theodore J. Lidz, “Summary of Defender Services Issues under the
CJA,” in II Federal Courts Study Committee Working Papers & Subcommittee
Reports, part IVB at 9 (July 1, 1990) (hereinafter “Fed. Courts Study
Committee”). Federal public defenders and their para-legals, investigators, and
experts who represent indigent defendants are paid from that organization’s
budget, which is administered through the Administrative Office of the United
States Courts, under the direction of the Judicial Conference of the United States,
see 18 U.S.C. § 3006A(g)(2)(A); 28 U.S.C. § 605; AO Guide, chap. IV,
§§ 4.02-.03, but is not subject to FOIA. See 5 U.S.C. § 552(f); AO Guide, chap.
V, § 5.01.
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21, 30 and 31, and the guidelines promulgated for their use by court and counsel,
are all generated through the Administrative Office of the United States Courts
under authority granted to the Judicial Conference of the United States. They are
purely administrative. And, the court essentially acts in an administrative, not a
judicial, capacity when approving voucher requests and related motions for trial
assistance. See, e.g., United States v. Davis, 953 F.2d 1482, 1498 n.21 (10th Cir.
1992) (“Fee determinations by the district judge pursuant to the Criminal Justice
Act are administrative in character and do not constitute final appealable orders
within the meaning of 28 U.S.C. § 1291.”).
The administrative nature of the process is apparent from its format as well
as its forms. The process is nonadversarial. That is, the court acts ex parte, and
there is no appeal from the denial or reduction of compensation. 10 At most,
grounds for a later appeal might be created by the denial of funds for expert
witnesses, investigators, or other services relating to an adequate defense. In that
latter sense, perhaps, the court at most is acting in a quasi-judicial capacity in the
CJA process. 11
10
See Fed. Courts Study Committee at 6-7; Davis, 953 F.2d at 1498 n.21.
11
We note that there is much support for the replacement of judges with an
independent administrative board, which would handle the judiciary’s present
functions in administering the CJA. See generally Committee to Review the
Criminal Justice Act, Judicial Conference of the United States, Final Report, 1993
WL 69540, at *35-39, 108 nn.oo-ww (Jan. 29, 1993).
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Finally, the vouchers and related information are not trial documents in any
accepted sense of that term. They do not go to the guilt, innocence or punishment
of a defendant. They are not evidence of the crime. They are entirely ancillary to
the trial.
The fact that the information is filed with the court does not alter the
situation. Not all documents filed with a court are considered “judicial
documents.” See United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997);
United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). But see Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 782 (3d Cir. 1994). And, as indicated, the
CJA documents are not directly related to the process of adjudication. The
documents are not even related to the defendant’s indigent status, for which he or
she receives CJA aid.
The conclusion that CJA determinations are not trial documents is further
supported by the fact that neither prosecutors nor federal public defenders are
required to submit to the court documentation of their expenditures in criminal
cases. Cf. United States v. McDougal, 103 F.3d 651, 656-57 (8th Cir. 1996), cert.
denied, 118 S. Ct. 49 (1997).
Looked at as essentially administrative in nature, it is clear that no First
Amendment right of access applies to CJA documents any more than it applies to
administrative documents located in the executive branch. See El Dia, Inc. v.
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Hernandez Colon, 963 F.2d 488, 494-95 (1st Cir. 1992); see, e.g., Calder v.
Internal Revenue Serv., 890 F.2d 781, 783-84 (5th Cir. 1989) (denying First
Amendment right of access to IRS records held by that agency); Capital Cities
Media, Inc. v. Chester, 797 F.2d 1164, 1175-76 (3d Cir. 1986) (denying First
Amendment right of access to records of state agency).
2.
Even if we assume for purposes of argument that these materials are
judicial documents and even if we accept the Albuquerque Journal’s argument
that a First Amendment analysis should apply to these materials, we still reach the
conclusion that the Journal is not entitled to the relief it seeks.
The First Amendment guarantees the right of the press and the public to
attend criminal trials and certain preliminary proceedings in criminal cases. See
Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986) (“Press-Enterprise
II”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-06 (1982);
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-81 (1980) (plurality
opinion). But, that right is not absolute. Globe Newspaper Co., 457 U.S. at 606.
The Supreme Court has not yet ruled on “whether there is a constitutional
right of access to court documents and, if so, the scope of such a right.” McVeigh
II, 119 F.3d at 812. However, this court has rejected the argument that such a
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right exists as to certain court documents because providing access to such
information would stretch the First Amendment principles and the Supreme
Court’s analysis in Press-Enterprise II “well beyond their current bounds.”
Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1512 (10th Cir. 1994); see, e.g.
McVeigh II, 119 F.3d at 813-14 (rejecting press’s request for access to suppressed
evidence); Lanphere, 21 F.3d at 1511-12 (rejecting law firm’s commercially
motivated request for the names, addresses, and telephone numbers of persons
charged with misdemeanor driving offenses); United States v. Hickey, 767 F.2d
705, 709 (10th Cir. 1985) (rejecting defendant’s request for sealed plea bargain
and court file of his co-conspirator). The question is whether the materials sought
here fall into that category as well.
In Press-Enterprise II, 478 U.S. at 9, the Supreme Court established “tests
of experience and logic” to determine whether a First Amendment right of access
applies to a particular criminal trial related process. In McVeigh II, we did not
decide whether this court would apply the Press-Enterprise II analysis to media
requests for access to court documents, but we assumed without deciding that it
did. 12 McVeigh II, 119 F.3d at 811-12. We proceed the same way here and
12
We also noted that “[a] number of circuits have concluded that the logic
of Press-Enterprise II extends to at least some categories of court documents and
records, such that the First Amendment balancing test there articulated should be
applied before such qualifying documents and records can be sealed.” McVeigh
(continued...)
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assume, without deciding, that the Press-Enterprise II analysis applies to these
documents.
Under the Press-Enterprise II analysis, the “experience” test examines
whether the “place and process have historically been open to the press and
general public.” Press-Enterprise II, 478 U.S. at 8. The “complementary” test for
“logic” asks “whether public access plays a significant positive role in the
functioning of the particular process in question” by, for example, “‘enhanc[ing]
both the basic fairness of the criminal trial and the appearance of fairness so
essential to public confidence in the system.’” 13 Id. at 8-9 (quoting Press-
Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) (“Press-Enterprise
I”)).
If, applying these tests, a qualified First Amendment right is found to exist,
the right may be overcome “by an overriding interest based on findings that
closure is essential to preserve higher values and is narrowly tailored to serve that
interest. The interest is to be articulated along with findings specific enough that
(...continued)
12
II, 119 F.3d at 811.
The “experience and logic” analysis has not been without its critics. See
13
generally Press-Enterprise II, 478 U.S. at 21-29 (Stevens, J., dissenting); Lillian
R. BeVier, Like Mackerel in the Moonlight: Some Reflections on Richmond
Newspapers, 10 Hofstra L. Rev. 311 (1982); Eugene Cerruti, “Dancing in the
Courthouse”: The First Amendment Right of Access Opens a New Round, 29 U.
Rich. L. Rev. 237 (1995); Kimba M. Wood, Reexamining the Access Doctrine, 69
S. Cal. L. Rev. 1105 (1996).
-22-
a reviewing court can determine whether the closure order was properly entered.”
Press-Enterprise I, 464 U.S. at 510. Interests of those other than the accused may
be considered. See Press-Enterprise II, 478 U.S. at 9 n.2 (citing Globe
Newspaper Co., 457 U.S. at 607-10). Since the district court’s order separately
addressed the vouchers themselves and all backup and other information, our
Press-Enterprise II analysis proceeds on the same basis.
a. Backup Documentation, Motions, Orders, and Hearing
Transcripts
(1) The Experience Test
The Journal has not established and we have not found any general
history—whether prosecution or defense, state or federal judicial system—of
press access to the type of information that the Journal seeks here, or anything
reasonably analogous to it. Of course, the precise information sought here arises
as a result of the passage in 1964 of the Criminal Justice Act, which established a
system for payment of defense services to indigent criminal defendants. Prior to
1964, the private bar provided representation to such defendants without
compensation or payment of such expenses. 14
14
See Fed. Courts Study Committee at 1.
-23-
Obviously, the CJA is too recent in origin to have developed any “history”
or “tradition” with respect to press access to documents required by that Act.
And, no cases have addressed whether a First Amendment right of access applies
to the CJA backup documentation, motions, orders, and hearing transcripts to
which the Journal seeks access here. The two courts that have addressed a First
Amendment claim of access to CJA vouchers themselves both specifically note
that the press did not seek access to the detailed backup material attached to the
vouchers. See United States v. Suarez, 880 F.2d 626, 631 (2d Cir. 1989) (“[The
newspaper’s] request for CJA information is narrow. [It] disavows any
entitlement to the work product, trial strategy or privileged communications of
defendants or their counsel. . . . [I]t seeks only ‘the barebones data’ of who was
paid, how much and for what services, i.e., only the cover-sheets.”); United States
v. McVeigh, 918 F. Supp. 1452, 1464 (W.D. Okla. 1996) (“Media counsel have
shown their sensitivity to the secrecy required for the defense investigation and
trial preparation by restricting their requests to the amounts paid out to the
attorneys and others providing services to the defense.” (emphasis added)). 15
15
The only other CJA-related case in which a First Amendment claim was
made is United States v. Ellis, 90 F.3d 447 (11th Cir. 1996). There, the Eleventh
Circuit affirmed the release of the transcript from a hearing to determine whether
the defendant was eligible for an appointed attorney under the CJA. Id. at 449-
50. The court did not address whether there was a tradition of access to that type
of proceeding, but rather reasoned that because the press has a qualified First
(continued...)
-24-
The Albuquerque Journal argues summarily that the long history of
disclosure of attorney’s fees where there is a fee-shifting statute in certain civil
cases weighs in favor of finding a tradition of disclosure of attorney’s fees
authorized under the CJA. We disagree. Fee-shifting statutes such as 42 U.S.C.
§ 1988, are quite different from the situation before us. They do not arise
procedurally until after a civil case is completed, so disclosure of trial strategy
and violation of Sixth Amendment rights are never a concern. Furthermore,
because prevailing parties in these cases seek to obtain money from the opposing
party to cover fees already incurred, the adversarial process applies so that the
paying party may scrutinize and contest the amounts claimed. In the CJA process,
on the other hand, the outcome of the litigation is irrelevant, and the defendant is
in the position of explaining in advance why certain services are justified, in
addition to submitting requests for payment after those services are furnished.
Additionally, as we have noted above, the CJA process is non-adversarial. It is
the judge who protects the interests of the public fisc in a process that has
traditionally been closed to the prosecution. See McVeigh, 918 F. Supp. at 1462;
see also United States v. Rodriguez, 833 F.2d 1536, 1538 (11th Cir. 1987) (per
curiam). Parties in the civil context may also exclude from their requests for
15
(...continued)
Amendment right to attend post-trial proceedings, it has a right to the transcript of
the hearing at issue there. Id. at 450.
-25-
attorney’s fees information that is privileged or attorney work product if the
showing is otherwise sufficient, see Gates v. Gomez, 60 F.3d 525, 535 (9th Cir.
1995), or they may seek a protective order to avoid disclosure of that information.
See Reed v. Rhodes, 934 F. Supp. 1492, 1502 (N.D. Ohio 1996).
The most one could do is search for some pattern of access or non-access
which may have developed in the area. But, as indicated above, there is very
little litigation on the subject, and the litigation which exists establishes, if
anything, a practice of non-access to CJA backup materials and related
information. The record before us discloses nothing which would support the
Journal’s position as to a tradition of access in the history of this country.
In lieu of any history, tradition or established practice with respect to such
materials, we look to the Act and its governing guidelines for whatever insight
they may provide, although such a review is obviously not required (and perhaps
entirely inappropriate) as part of the “experience” factor of Press-Enterprise II.
The CJA itself specifically provides for ex parte applications and
proceedings requesting investigative, expert, or other services necessary for an
adequate defense. See 18 U.S.C. § 3006A(e)(1). 16 Likewise, the Administrative
16
Although the Criminal Justice Act of 1964 has been amended several
times, this section was included in the original act. See Criminal Justice Act of
1964, Pub. L. No. 88-455. The legislative history of the Act indicates that this
section provided for an ex parte proceeding to “prevent[] the possibility that an
(continued...)
-26-
Office of the United States Courts, under the direction of the Judicial Conference,
which pursuant to § 3006A(h), “may, from time to time, issue rules and
regulations governing the operation of plans formulated under this section,” has
provided in its Guide to Judiciary Policies and Procedures: 17
Ex parte applications for services other than counsel under
subsection (e) shall be heard in camera, and shall not be revealed
without the consent of the defendant. The application shall be
placed under seal until the final disposition of the case in the trial
court, subject to further order of the court. Maintaining the secrecy
of the application prevents the possibility that an open hearing may
cause a defendant to reveal his or her defense.
AO Guide, chap. III, part A, § 3.03 (third and fourth emphases added).
Another section of the Administrative Office Guide instructs that
information which is not otherwise routinely available to the public should be
made available unless its release might hurt the investigative process or violate
certain interests of the defendants, witnesses, or attorneys. Id. at chap. V, § 5.01.
However, CJA documents may be judicially placed under seal “until after all
judicial proceedings in the case are completed and for such time thereafter as the
court deems appropriate.” Id. (emphasis added).
16
(...continued)
open hearing may cause a defendant to reveal his defense.” H.R. Rep. No. 88-864
(1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990.
The Administrative Office Guide was amended slightly after the CJA was
17
amended in 1996 and 1997. The quoted sections are from the Guide as it
appeared when the district court was considering the Albuquerque Journal’s
motion to unseal the CJA documents.
-27-
We conclude, therefore, that no history, experience or tradition of access
exists as to the release at any time of backup documentation, motions, orders, and
hearing transcripts regarding requests for CJA assistance.
This conclusion could end our analysis on the ground, adopted by some
courts, that the Press-Enterprise II analysis requires both the experience and logic
prongs to be satisfied. See, e.g., United States v. El-Sayegh, 131 F.3d 158, 161
(D.C. Cir. 1997); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989).
However, we proceed to the logic prong because the procedure here is relatively
new. See Seattle Times Co. v. United States District Court, 845 F.2d 1513, 1516
(9th Cir. 1988); see also United States v. Chagra, 701 F.2d 354, 363 (5th Cir.
1983).
(2) The Logic Test
As indicated above, the logic test asks whether public access would play a
significant positive role in the functioning of the particular process. 18 Press-
In United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997) (per curiam)
18
(“McVeigh I”), we identified six structural interests used by the Supreme Court to
determine that a constitutional right of access to criminal trials exists. These
interests are identical to those identified by the Third Circuit as “societal
interests” cited by the Supreme Court in Richmond Newspapers that are fostered
by open court proceedings. See United States v. Simone, 14 F.3d 833, 839 (3rd
Cir. 1994). They include: “informing the public discussion of government
affairs, assuring the public perception of fairness, promoting the
(continued...)
-28-
Enterprise II, 478 U.S. at 8. For the reasons set forth below, we conclude that
public access to the backup documentation, motions, orders, and hearing
transcripts will not play a significant positive role in the functioning of the CJA
process, and that, in fact, access would play, as in McVeigh II, 119 F.3d at 813, a
negative role in the process. In short, logic does not support release of these
documents.
Just as the grand jury process is the “classic example” of a government
process that would be totally frustrated if conducted openly, see Press-Enterprise
II, 478 U.S. at 9 (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,
218 (1979)), so too would CJA proceedings be frustrated if conducted openly.
The CJA process is the defendant’s means of preparing a defense, and keeping
that process closed will prevent the government from being “tipped off” as to the
direction in which the defendant’s trial strategy is heading. See In re Grand Jury
Proceedings (Smith), 579 F.2d 836, 840 (3rd Cir. 1978); see also Franks v.
Delaware, 438 U.S. 154, 169 (1978).
18
(...continued)
community-therapeutic effect of criminal justice proceedings, providing a public
check on corrupt practices, intimidating potential perjurers, and generally
enhancing the performance of all involved in the process.” McVeigh I, 106 F.3d
at 336. These factors are illustrative, not exclusive, and no one factor controls or
predominates. We evaluate the circumstances in their entirety.
-29-
The CJA, which requires that a defendant reveal a high degree of detail
about his or her reasons for requesting assistance other than counsel in preparing
for trial, see United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir. 1995);
United States v. Mundt, 508 F.2d 904, 908 (10th Cir. 1974), recognizes that
confidentiality of that detail is vital to the proper functioning of the CJA process.
See Marshall v. United States, 423 F.2d 1315, 1317-19 (10th Cir. 1970); see also
Lawson v. Dixon, 3 F.3d 743, 751 (4th Cir. 1993); United States v. Edwards, 488
F.2d 1154, 1160-62 (5th Cir. 1974). Therefore, the CJA provides that the process
for requesting assistance other than counsel is to be ex parte, see 18 U.S.C.
§ 3006A(e)(1), so as not to reveal the strengths and weaknesses of a defendant’s
case and his or her trial strategy, including possible defenses, witnesses, and
evidence to be used at trial. Likewise, the backup documentation to the attorneys’
vouchers reveals much of the same information as that contained in requests for
services other than counsel, and the same reasons justifying closure of those
proceedings apply to the backup documentation.
Another reason grand juries function best in secret is because secrecy
“encourage[s] free and untrammeled disclosures by persons who have
information.” Douglas Oil Co., 441 U.S. at 219 n.10 (quotations omitted).
Without an assurance that the information revealed at CJA hearings and in
documents submitted to the court will not be disclosed, a defendant and his or her
-30-
counsel would be discouraged from fully disclosing the information to the court.
Cf. State v. Ballard, 428 S.E.2d 178, 183 (N.C. 1993) (“Only in the relative
freedom of a nonadversarial atmosphere can the defense drop inhibitions
regarding its strategies and put before the trial court all available evidence of a
need for psychiatric assistance.”); United States v. Huckaby, 43 F.3d 135, 138
(5th Cir. 1995) (“Disclosure of [presentence reports] to the public may stifle or
discourage that vital transmission of information by the defendants . . . and by
cooperating third parties.”).
Also, information obtained by the public prior to judgment could influence
the jury or prospective jury and would provide the government with “unauthorized
discovery which is forbidden under our concept of criminal procedure.” Edwards,
488 F.2d at 1162; see Fed. R. Crim. P. 16(b)(2); see also Marshall, 423 F.2d at
1318. And information obtained after judgment could still be used by the
government to investigate and bring new charges against a defendant or other
individuals, including potential witnesses and other sources of information.
These ramifications would ultimately decrease the information the court could use
to make a decision, would hinder the court’s fact-finding ability, see Grove Fresh
Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (fostering
more accurate fact finding should be a positive role of public scrutiny), and
-31-
would, therefore, impede its ability to correctly decide whether and how much
assistance to grant the defendant.
Moreover, much of the information disclosed to the court during the CJA
process does not ultimately become part of the criminal trial. A defendant’s
request for investigative services to look into possible defenses, for example, will
not always be fruitful for the defense. Likewise, a defendant’s request for funds
to interview potential witnesses does not always result in the defendant’s use of
those witnesses at trial. The danger in disclosing this type of information was
manifest in Marshall, 423 F.2d at 1319, where the government learned of the
existence of a witness who ultimately testified against the defendant only because
the district court had erroneously allowed the government to attend the CJA
hearing.
In McVeigh II, 119 F.3d at 813, we held that press access to suppressed
evidence would play a negative role in the functioning of the criminal process by
exposing the public and potential jurors in particular to incriminating evidence
not to be introduced at trial. Press access to information disclosed in the CJA
process, most of which will not be introduced in the trial, will also play a
negative role in the criminal process.
In addition, the CJA process is part of the means by which an indigent
defendant obtains discovery. The detail required of the defendant in the CJA
-32-
process includes the specific information he expects to find. See Kennedy, 64
F.3d at 1470; Mundt, 508 F.2d at 908. Discovery proceedings are fundamentally
different from other proceedings to which courts have recognized a First
Amendment right of access. See Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12
(1st Cir. 1986). Therefore, disclosing the information a court considers in making
what is essentially a determination of the scope of discovery would make the CJA
process more complicated and burdensome. Id. at 12; see also Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 32-33 (1984) (holding that party had no First
Amendment right to disseminate information obtained by the “legislative grace”
of discovery which “may be unrelated, or only tangentially related, to the
underlying cause of action”).
The Journal emphasizes the positive role access would provide by ensuring
the quality of the judge’s decision-making, by limiting the potential for abuse by
the judge and defense counsel, and by educating the public as to how its money is
being spent in criminal defense. Intervenor’s First Br. at 14-17. As we have
discussed above, we do not believe the judge’s decision-making will be improved
by an open process, and it may well be hindered. In addition, we point out that
the judge’s involvement in the process is the protection against corruption, as
opposed, for instance, to expenditures by the prosecution and Federal Public
Defenders Offices which in the detail sought here, are not subject to judicial
-33-
supervision or public scrutiny. We see little reason to believe that “public
scrutiny” would sway these types of rulings by the court.
Obviously, disclosure would provide some information to the public, but
we agree with the Ninth Circuit that “[w]ere we to accept this argument, few, if
any, judicial proceedings would remain closed. Every judicial proceeding, indeed
every governmental process, arguably benefits from public scrutiny to some
degree, in that openness leads to a better-informed citizenry and tends to deter
government officials from abusing the powers of government.” Times Mirror Co.
v. United States, 873 F.2d 1210, 1213 (9th Cir. 1989). Yet, “because the integrity
and independence” of proceedings such as the grand jury, jury deliberations, and
the internal communications of the court “are threatened by public disclosures,
claims of ‘improved self-governance’ and ‘the promotion of fairness’ cannot be
used as an incantation to open these proceedings to the public.” Id.
The Albuquerque Journal’s “information” arguments would apply to every
governmental process, including those of the executive branch, where the
Supreme Court has extended no First Amendment right of access. See El Dia,
Inc. v. Hernandez Colon, 963 F.2d 488, 494-95 (1st Cir. 1992); see, e.g., Calder
v. Internal Revenue Serv., 890 F.2d 781, 783-84 (5th Cir. 1989) (denying First
Amendment right of access to IRS records held by that agency); Capital Cities
Media, Inc. v. Chester, 797 F.2d 1164, 1175-76 (3d Cir. 1986) (denying First
-34-
Amendment right of access to records of state agency). Indeed, there is no First
Amendment right of access to government processes in general. See Houchins v.
KQED, Inc., 438 U.S. 1, 14-15 (1978). And although Congress can choose to
open some of those processes, Justice Stewart has commented that the
“Constitution itself is neither a Freedom of Information Act nor an Official
Secrets Act.” Id. at 15 (quoting Stewart, Or of the Press, 26 Hastings L.J. 631,
636 (1975)); see also In re Motions of Dow Jones & Co., 142 F.3d 496, 502 (D.C.
Cir. 1998) (“The Chief Judge can allow some public access [to grand jury-related
matters, b]ut it will be done because the Federal Rules of Criminal Procedure
confer this authority on district courts, not because the First Amendment demands
it.”).
Moreover, the linchpin of the Albuquerque Journal’s claim to a First
Amendment right of access is that judicial discretion has been applied. Yet, in
many contexts, courts have rejected a constitutional right of access where judicial
discretion has been applied, even in proceedings relating to the guilt or innocence
of the defendant and even though the public would have been educated and the
participant’s actions would have been checked. These include: presentence
reports relied on by the court in making a sentencing decision, United States v.
Corbitt, 879 F.2d 224, 229-30 (7th Cir. 1989); pre-indictment search warrant
affidavits used by the court in considering search warrant applications, Baltimore
-35-
Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989); Times Mirror Co., 873 F.2d
at 1218; documents considered by the court in ruling on civil discovery motions,
Cryovac, Inc., 805 F.2d at 11-12; grand jury proceedings and ancillary
proceedings or documents related thereto, In re Motions of Dow Jones & Co., 142
F.3d at 498-99, 502-03; and evidence actually ruled inadmissible by the court in
suppression hearings, McVeigh II, 119 F.3d at 813. 19 In the instant case, the CJA
process is not even a preliminary process relating to the guilt of the defendant,
nor does the information contained in the CJA documents relate to the core
proceeding—the determination of the guilt or innocence of the defendant.
As an alternative argument, the Journal contends that the process will not
be hindered if the court selectively redacts any information that may hurt the
process. Intervenor’s Third Br. at 13-14. After reviewing many of the materials
contained in the record of this case, we disagree. The hearing transcripts,
motions, orders, and backup documentation are replete with sensitive information,
the release of which would harm the CJA process as discussed above. The public
has an interest not only in the way its funds are used but also in seeing that
judicial processes are efficient and that defendants are given the “‘basic tools’”
19
We recognize that the courts are not in complete harmony on all of these
judicial proceedings. See, e.g., In re Search Warrant for Secretarial Area Outside
Office of Gunn, 855 F.2d 569, 572-75 (8th Cir. 1988) (holding qualified First
Amendment right of access applies to search warrant affidavits, but interests
weigh in favor of non-disclosure).
-36-
and “‘raw materials integral to’” the presentation of an adequate defense so as to
ensure a fair trial. See Kennedy, 64 F.3d at 1473 (quoting Ake v. Oklahoma, 470
U.S. 68, 76 (1985)).
Requiring the release of the requested materials would entail an
extensive—not to mention expensive—use of court and counsel effort by forcing
counsel to be more careful in the information presented to the court for fear of
future disclosure and by forcing the court and counsel to ensure that most of the
information in the CJA materials is ultimately redacted. Cf. In re Search Warrant
for Secretarial Area Outside Office of Gunn, 855 F.2d at 574-75 (holding that
even where the First Amendment right of access applied, line-by-line redaction of
the sealed documents was not practicable, and thus not required); see also Seattle
Times Co., 476 U.S. at 36 n.23; Cryovac, Inc., 805 F.2d at 12. Especially in a
high profile case like this one, effective, efficient, and fair procedures must be
employed. See McVeigh II, 119 F.3d at 813. Access only to those portions of the
materials that do not contain the implicated information would be a Pyrrhic
victory for access, with little benefit to the functioning of the system. See
Cryovac, Inc., 805 F.2d at 12.
In sum, neither experience nor logic lead us to conclude that there is a First
Amendment right of access to CJA-related backup documentation, motions,
orders, and hearing transcripts.
-37-
b. CJA Vouchers
We find it unnecessary to address whether there is a constitutional right to
the vouchers themselves because the district court’s order already requires release
of the vouchers—a decision we uphold on other grounds discussed below. As we
said at the outset of this discussion, we avoid deciding cases on constitutional
grounds if they can be resolved on another basis. Since the Journal already has
the relief it seeks as to disclosure in general, any opinion on constitutional
grounds would be merely advisory. 20
This conclusion still leaves unanswered the Journal’s arguments with
respect to the timing of the vouchers’ release. It is the Journal’s position that
access to the vouchers at the end of trial is not enough—immediate access is
required. We disagree. In our view, there is no constitutional right in this case to
timing as opposed to access itself. Here, the Defendants are represented by CJA
attorneys, who handle only a minority of the total criminal caseload, and of that
minority, only a minority of all CJA attorneys submit vouchers on an interim
basis, so, at best, we are dealing with a fraction of a fraction of cases. Further,
20
The CJA has recently been amended so as to specifically address the issue
of access to the vouchers and to specify the timing of that access. See infra note
21 and accompanying text. Therefore, any ruling here would be of limited import
in any case because this statute is now in effect and makes constitutional analysis
unnecessary. More to the point, it takes the issue here out of the “capable of
repetition yet evading review” category. Any future argument by the Journal will
necessarily begin with an analysis of the amended statute.
-38-
we must observe that while vouchers are required to be submitted, they are not
required to be submitted on an interim basis. Thus, it is fortuitous that here the
vouchers have been submitted on an interim basis, which depends to a large
extent on the attorneys’ financial strength. Certainly, the Journal could not argue
that the First Amendment would compel CJA attorneys to submit vouchers on an
interim basis because there is a constitutional right to immediate access to
accruing data, as opposed to access itself.
To support its timing argument, the Journal relies on United States v.
Suarez, 880 F.2d 626 (2d Cir. 1989), where the Second Circuit upheld on First
Amendment grounds a district court order permitting the press access to interim
vouchers. We think Suarez is distinguishable. In that case, the district court’s
order only addressed present access to interim vouchers. No order existed
allowing access to vouchers at the end of trial, and the district court was not
called upon and did not address the interim voucher issue in such a context.
Thus, the Second Circuit’s review was limited, and there is no way to discern
from the opinion how much the reasoning was driven by the subject of access
itself, and how much significance, if any, the court placed on timing. In short, we
do not know how the Second Circuit would have ruled if faced with a situation
like that before us, where the district court has already ordered release of the
vouchers at the end of the proceedings.
-39-
Likewise, we find the Journal’s reliance throughout its briefs on United
States v. McVeigh, 918 F. Supp. 1452 (W.D. Okla. 1996), contrary to its position
with respect to timing. There the court never made clear whether it found a
qualified First Amendment right or whether it based its decision on the common
law, see McVeigh, 918 F. Supp. at 1464, but its conclusion was that interim
vouchers should not be released. Id. at 1465.
If we were to apply the experience and logic test to the issue of immediate
access to the vouchers, it is clear for all the reasons stated earlier in this opinion,
and more, that it would fail. In the end, we agree with the McVeigh court that
revealing the amounts of interim payments is not a reasonable alternative to full
disclosure because it would “distort the public perception about the fairness of the
process because the expenditures, out of context, would emphasize costs without
any information about benefits obtained.” Id. at 1465.
B. Common Law Access and the CJA Statutory Scheme
The Albuquerque Journal argues that even if we do not find a First
Amendment right of access, all of the CJA materials should still be unsealed
pursuant to the common law and/or the CJA statutory scheme. We reject the
Journal’s common law argument for two reasons. First, the statute and
regulations discussed below occupy this field and would supercede the common
-40-
law right even if one existed. See United States v. Texas, 507 U.S. 529, 534
(1993); see also In re Motions of Dow Jones & Co., 142 F.3d 496, 504 (D.C. Cir.
1998) (common law right of access to grand jury-related information is
supplanted by Fed. R. Crim. P. 6(e)(5), 6(e)(6)); Lanphere & Urbaniak v.
Colorado, 21 F.3d 1508, 1511 (10th Cir. 1994) (common law right of access to
criminal justice records is supplanted by Colorado statute). Second, as we have
discussed above, the CJA materials are not “judicial documents” as that term is
used by courts that have applied the common law right of access. Rather, these
are administrative documents, see United States v. Davis, 953 F.2d 1482, 1498
n.21 (10th Cir. 1992), to which there is no right of access under the common law.
We therefore analyze to what extent the materials should be released under the
CJA.
The CJA was enacted in 1964 “to insure effective representation for those
charged with a crime or confronted with the risk of being deprived of
constitutional rights in ancillary proceedings.” United States v. Smith, 633 F.2d
739, 741 (7th Cir. 1980) (citing H.R. Rep. No. 91-1546 (1970), reprinted in 1970
U.S.C.C.A.N. 3982, 3983); see also United States v. Edwards, 488 F.2d 1154,
1161-62 (5th Cir. 1974). To achieve its purpose, the CJA provides for both
representation by counsel and “other services necessary for adequate
representation.” 18 U.S.C. § 3006A(e)(1).
-41-
The version of the statute in effect for this case provides that the Judicial
Conference of the United States “may, from time to time, issue rules and
regulations governing the operation of plans formulated under this section.” 18
U.S.C. § 3006A(h). Accordingly, the Administrative Office, under the direction
of the Judicial Conference, has promulgated rules relating to the release of all
types of CJA information. See AO Guide, chap. III, part A, § 3.03; chap. V,
§ 5.01. The AO Guide includes the forms to be used in conjunction with the CJA
process, including forms 20, 21, 30, and 31 discussed above. We apply the
version of the AO Guide applicable to this case in our discussion below.
Under the statute and regulations, the information related to counsel’s fees
is presumptively accessible to the public. It may be sealed at the discretion of the
district court upon motion of the defendant or on the court’s own motion.
Similarly, this information that is placed under seal may be released later at the
court’s discretion, after consideration of the interests discussed below. To the
contrary, information pertaining to the application for services other than counsel
is sealed from the outset. After trial, the court has the discretion, after finding on
the record that the same interests are protected, to release this information as
well.
Although the CJA has been amended twice since the present case was
commenced and both amendments have altered the provisions for access to CJA
-42-
vouchers, 21 the amendments essentially codify the regulations. However, one
21
The Judiciary Appropriations Act of 1998, Pub. L. No. 105-119, § 308,
applies, pursuant to the Act, to cases filed on or after January 25, 1998. This
amendment provides that compensation paid to counsel should be disclosed to the
public upon approval by the court. Any detailed information on vouchers
submitted prior to the end of trial is to be redacted, and in any case, the court
must consider Fifth and Sixth Amendment rights, the attorney-client privilege, the
work product privilege, safety of any person, and any other interest justice may
require in deciding what portions of the vouchers to release. The amendment also
provides that the compensation paid to counsel should be categorized essentially
as it currently is on CJA form 20. See form 20, attached hereto; 18 U.S.C.
§ 3006A(d)(4).
Prior to the most recent amendment, the CJA was amended by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
§§ 108, 903, which also amended 21 U.S.C. § 848(q) pertaining to death penalty
representation, and applies to cases commencing on or after April 24, 1996. This
amendment provides that “[t]he amounts paid” for representation by counsel and
for other services “shall be made available to the public.” 18 U.S.C.
§ 3006A(d)(4), (e)(4) (emphasis added). The subsequent amendment discussed
above replaced this language as to counsel only.
Although the version of the CJA applicable to this case does not include
either of these amendments, they are instructive in that they indicate a shift
toward increased access to the amounts paid out under the CJA. However, they
are equally informative in that they do not indicate a legislative desire to release
the other CJA information which the Albuquerque Journal is seeking here. The
legislative history of the amendments indicates that the change was intended to
reach the amounts listed on the CJA vouchers, but not the backup documentation
or other CJA-related documents. Senator Domenici, who introduced the language
in the most recent amendment, discussed the backup documents and the great
amount of detail that they contain. He then stated, “clearly if this information
were subject to public disclosure the alleged criminal’s sixth amendment rights
might be compromised. My bill does not seek to make this sensitive information
subject to public disclosure, but rather continues to leave it to the Judge to
determine if and when it should be released.” 143 Cong. Rec. S8069-70 (daily ed.
July 24, 1997) (statement of Sen. Domenici). While we recognize that statements
(continued...)
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amendment specifically provides that amounts expended under the CJA “shall be
made available to the public,” 18 U.S.C. § 3006A(e)(4), which apparently takes
the discretion away from the district court as to the release of the totals. In death
penalty cases, the amounts are to be made available to the public “after the
disposition of the petition.” 21 U.S.C. § 848(q)(10)(C). In addition, one of the
amendments, applicable only to death penalty cases, changes the presumption
from an ex parte hearing for services other than counsel to a process which is not
to be held ex parte “unless a proper showing is made concerning the need for
confidentiality.” 21 U.S.C. § 848(q)(9). Our interpretation of the statute in effect
for this case is consistent with the amendments, except as those amendments alter
access to CJA information in death penalty cases.
1. Motions, Orders, and Hearing Transcripts Related to the
Retention and Compensation of Services Other Than Counsel
Services other than counsel that are necessary for adequate representation
may be obtained by a defendant who is financially unable to obtain them, upon an
ex parte application, heard by the court in camera. See 18 U.S.C. § 3006A(e); AO
Guide, chap. III, part A, § 3.03. The application, which is not a voucher but is
21
(...continued)
like this are not conclusive or binding, we find it informative that our independent
review of the amendment is consistent with the drafter’s view.
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usually an ex parte motion followed by an ex parte hearing, “shall not be revealed
without the consent of the defendant. The application shall be placed under seal
until the final disposition of the case in the trial court, subject to further order of
the court. Maintaining the secrecy of the application prevents the possibility that
an open hearing may cause a defendant to reveal his or her defense.” Id. § 3.03.
Similar procedures are provided in death penalty cases under the version of the
statute applicable to this case. See 21 U.S.C. § 848(q)(9).
The legislative history of the act indicates that the need for secrecy in
obtaining services other than counsel is to prevent “the possibility that an open
hearing may cause a defendant to reveal his defense.” H.R. Rep. No. 88-864
(1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990; see also Marshall v. United
States, 423 F.2d 1315, 1318 (10th Cir. 1970). Because the Defendants are
“act[ing] jointly, sharing responsibility for motions and investigation and
attending joint strategy sessions . . . to avoid duplicative efforts and to minimize
expenses,” United States v. Gonzales, No. CR-95-538-MV, 1997 WL 155403, at
*12 (D.N.M. Feb. 11, 1997), the release of any CJA documents prior to the last
Defendant’s sentencing would prejudice that Defendant by causing him “to reveal
his defense.” H.R. Rep. No. 88-864 (1963), reprinted in 1964 U.S.C.C.A.N.
2990, 2990. Thus, we reject the Albuquerque Journal’s argument that materials
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related to services other than counsel should be released prior to the end of all
Defendants’ sentencing hearings.
The district court, however, because it found a First Amendment right of
access, ordered that all CJA-related documents, motions, orders, and hearing
transcripts be released after the last remaining Defendant is sentenced. Pursuant
to the CJA statutory and regulatory scheme, we conclude that this information is
presumptively closed. The scheme favors continuing confidentiality of the
information, and given the interests identified in the discussion of the logic prong
of the constitutional analysis above, we conclude that the district court abused its
discretion in ordering that the motions, orders, and hearing transcripts related to
services other than counsel be released.
2. Materials Related to the Appointment and Compensation of
Counsel and the Backup Documentation to Vouchers for
Services Other Than Counsel
The CJA provides that appointment of counsel is to be achieved after
determining that the defendant is financially unable to obtain counsel pursuant to
a plan implemented by each district court. See 18 U.S.C. § 3006A(b). Similar
procedures apply to death penalty cases. See 18 U.S.C. § 3005; 21 U.S.C.
§ 848(q)(4)-(8), (10). Neither the statute nor the Administrative Office’s rules
specify whether this procedure is to be done ex parte.
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Section 5.01 of the AO Guide changes the presumption from one of secrecy
in non-attorney retention and compensation to one of openness for information
not otherwise routinely available to the public, while still giving the court the
discretion to place CJA-related materials under seal “until after all judicial
proceedings 22 in the case are completed and for such time thereafter as the court
deems appropriate.” This section of the AO Guide also applies to the backup
documentation to the vouchers for services other than counsel. 23 Information
should be released unless “its release might . . . unduly intrude upon the privacy
of attorneys or defendants or compromise defense strategies, investigative
procedures, attorney work product, the attorney-client relationship or privileged
information provided by the defendant or other sources.” Id.
In our discussion of the logic prong of the Press-Enterprise II analysis
above, we considered several of these factors, concluding that access to CJA
materials, including backup documentation to CJA forms 20, 21, 30, and 31, and
motions, orders, and hearing transcripts related to the appointment of counsel,
would not play a significant positive role on the functioning of the CJA process.
In addition to those factors discussed above, we conclude that the other factors
22
The current version of the AO Guide, which is not applicable to this case,
clarifies that “all judicial proceedings” includes appeals.
23
We do not believe that § 5.01 changes the presumption in favor of sealing
materials related to the ex parte process for obtaining services other than counsel
as provided in the statute, 18 U.S.C. § 3006A(e) and the AO Guide, § 3.03.
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also favor continued sealing of these CJA materials, even after sentencing is
completed.
The district court considered several of these other factors, but did so in the
context of its Press-Enterprise II analysis of “higher values.” First, the district
court found, and we agree, that allowing disclosure of the backup documentation
to the attorneys’ requests for compensation may “subject innocent people who
have been interviewed or investigated by Defendants to public speculation about
their involvement in the crime.” Gonzales, 1997 WL 155403, at *8. This interest
is similar to one justification for keeping grand jury proceedings secret even after
trial is over. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219
(1979); see also United States v. Corbitt, 879 F.2d 224, 231 & nn.8-9 (7th Cir.
1989); Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989).
In addition, several witnesses are in the Witness Protection Program, and
information, such as the places to which defense counsel have traveled, which
could reveal their location should not be disclosed. See United States v. Hickey,
767 F.2d 705, 708 (10th Cir. 1985); cf. Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 607-08 (1982). Non-witnesses also have a privacy interest in
retaining anonymity for similar safety reasons. We disagree, therefore, with the
district court’s apparent conclusion that a non-defendant’s privacy interest is only
valid until the “conclusion of litigation.” Gonzales, 1997 WL 155403, at *8.
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Second, release of the backup documentation, motions, orders, and hearing
transcripts related to the appointment and compensation of counsel and of the
backup documentation to vouchers for services other than counsel will intrude on
the privacy interests of the Defendants and will reveal privileged information
provided by the Defendants. As discussed above, disclosure of this CJA
information may implicate the Defendants’ Fifth Amendment rights as to the
instant crime. It may also put the government “in a position to investigate and
bring new charges against [defendants who inculpate themselves in uncharged
criminal conduct in order to obtain an adequate defense].” Supplemental R. Vol.
I, Tab 2073 at 5 n.1 (district court order granting in part defendants’ motion to
stay pending appeal). These privacy interests also do not cease at the conclusion
of the litigation.
Third, unsealing the backup documentation, motions, orders and hearing
transcripts related to the appointment and compensation of counsel and the
backup documentation to vouchers for services other than counsel would reveal
information protected by the attorney-client privilege and by the attorney work-
product doctrine. In addition to the attorney being reluctant to provide the court
with information necessary to obtain services for the defense as discussed
-49-
above, 24 the specter of the release of detailed backup documentation to the
attorney’s vouchers and non-attorney’s vouchers, which, the district court found,
“often contain information directly or indirectly implicating the attorney-client
privilege,” would make a defendant “reluctant to reveal information that could
help the attorney in the defense of the case, or in analyzing the strength of the
case for trial.” 25 Gonzales, 1997 WL 155403, at *8; see Crystal Grower’s Corp.
v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980). The importance of this privilege
and doctrine is well-established, see Upjohn Co. v. United States, 449 U.S. 383,
389-92 (1981), a point which the Supreme Court just recently reemphasized in
holding that the attorney-client privilege extends beyond the death of the client.
See Swidler & Berlin v. United States, No. 97-1192, — S. Ct. —, 1998 WL
333019, at *3-7 (U.S. June 25, 1998). Certainly, then, the privilege does not
terminate when the Defendants’ trials are over.
Accordingly, we conclude that the district court abused its discretion in
ordering that the backup documentation, motions, orders and hearing transcripts
24
We also point out that potential disclosure of the information while the
trial is still pending would encourage defense counsel to wait until the trial is
over before submitting vouchers for compensation. In complicated cases such as
death penalty prosecutions, where “[i]t is urged that the court permit interim
payment of compensation,” AO Guide, chap. VI, § 6.02(C), such a choice to be
made by counsel is yet another disadvantage indigent defendants face.
Disclosure of work product and privileged information would also give
25
the government information as to the methods particular defense counsel use in
combating prosecutions.
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related to the appointment and compensation of counsel and the backup
documentation to vouchers for services other than counsel should be unsealed
after the conclusion of all Defendants’ sentencing hearings.
3. Vouchers and Total Expenditures
Finally, we address the district court’s order that the total attorney fees and
overall total paid through CJA funds be released for each Defendant after that
Defendant is sentenced and that all of the vouchers themselves (without the
backup documentation) be released at the end of all Defendants’ sentencing
hearings. The district court found that because the vouchers (forms 20, 21, 30,
and 31) themselves contain trial strategy, Gonzales, 1997 WL 155403, at *7,
release of the entire vouchers prior to the conclusion of all Defendants’ trials
would harm Defendants not yet tried. The court considered the interests involved
and properly applied its discretion to release the total amount spent on counsel
and the total amount spent overall on each Defendant at the end of that
Defendant’s sentencing hearing and to save the release of the vouchers
themselves until all Defendants’ sentencing hearings are completed. We find no
abuse in the court’s conclusion that forms 21 and 31, relating to the compensation
of experts, investigators, and others, contain trial strategy. Although we question
how much trial strategy is revealed on forms 20 and 30 regarding compensation to
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counsel, we cannot say the court abused its discretion in waiting to release them
until the end of all sentencing hearings since the forms themselves require the
attorneys to specify certain information, which could reveal strategy. 26
The district court’s order that the vouchers should ultimately be released is
also consistent with the two recent amendments to the CJA, which require that the
amounts expended for counsel and other services under the CJA be disclosed.
See supra note 21. The most recent amendment provides that the amount paid to
counsel is to be divided into twelve categories, which roughly match the
26
There is no disagreement between us and the dissenting opinion on the
proposition that there is a presumption of openness with respect to the cover
sheets, at least as to counsel fees. See supra p. 47. This presumption has long
been in the Guidelines and has been codified by amendments to the CJA effective
January 25, 1998. See supra note 21. But the presumption is only the beginning
of the analysis. Both the cited Guidelines and the amended statute contain a
laundry list of items which can override the presumption. Overarching the
presumption and these conditions is the proposition that the determination
whether to disclose immediately or to defer disclosure, whether in redacted or
unredacted form, is a matter of discretion for the trial judge. There are sound
reasons for this, which are especially apparent in this case. The trial judge is in a
position to evaluate at first hand the costs and benefits associated with disclosure
or deferred disclosure. The case before us is particularly illustrative because of
the number of defendants, the fact that some are testifying against others, the fact
that the court has ordered the defendants to share certain information and
otherwise work with one another, and, in general, the extraordinary size of these
proceedings. This case presents a perfect example of the appellate court’s
responsibility to respect its standard of review in cases involving discretionary
judgment calls by the district court. Obviously, if we were exercising a de novo
standard of review, we might come to a different conclusion than did the trial
judge. But our review is necessarily deferential, and we should be slow to
second-guess the trial judge’s prerogative in a matter this complex. It is this
latter point where, we believe, the dissent misses the mark.
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categories presently on CJA forms 20 and 30, to be released pursuant to the
court’s order. Therefore, all of the vouchers may properly be disclosed, without
the backup documentation, at the end of the last Defendant’s sentencing hearing,
in accordance with the district court’s order. And as the district court has made
clear, its order has not foreclosed the Defendants from seeking a protective order
with regards to sensitive information that may be contained on the vouchers
themselves. See Supplemental R. Vol. I, Tab 2073 at 6 n.2 (district court order
granting in part defendants’ motion to stay pending appeal).
Finally, even if we were to assume that a qualified First Amendment right
applied to the vouchers as the Second Circuit held in Suarez, 880 F.2d at 631, the
interests we have already identified, and that the district court balanced, lead us to
agree with the district court’s narrowly tailored conclusion that the vouchers
should remain sealed until all Defendants are sentenced, except for the total
amount paid to the attorney and the total amount spent overall, which will be
released at the conclusion of each Defendant’s sentencing hearing.
III.
CONCLUSION
We GRANT a writ of mandamus on the cross-appeals and DENY a writ of
mandamus on the appeal. We VACATE that portion of the district court’s order
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which releases the backup documentation, motions, orders, and hearing
transcripts. That portion of the district court’s order which releases CJA forms
20, 21, 30, and 31, without accompanying backup documentation, at the
conclusion of the last Defendant’s sentencing hearing, unless interests favor
keeping the forms sealed until after any direct appeals, shall remain in force. In
addition, that portion of the district court’s order releasing, upon completion of
each Defendant’s sentencing, the total amount paid to that Defendant’s attorney
and the total amount spent overall for that Defendant shall remain in force.
All outstanding motions are DENIED.
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Attachments not available electronically.
Nos. 97-2064, 97-2095, 97-2101, United States v. Gonzales
BRISCOE, Circuit Judge, concurring and dissenting:
I agree there is no First Amendment right of access to CJA documents
because they are administrative in nature, 1 and that any common law right of
access was preempted by the CJA. I also agree that under the CJA and rules
promulgated under it, the district court should not have ordered that the backup
documentation, motions, orders, and hearing transcripts be unsealed at the
conclusion of all defendants’ sentencing hearings. 2 However, I do not agree that
the district court could properly keep the CJA forms and the amounts paid for
counsel and other services sealed until the conclusion of each defendant’s trial.
The version of § 5.01 of the guide to Judiciary Policies and Practices in
effect when this case commenced governs “Procedures for the Release of
Information Pertaining to Criminal Justice Act Activities,” and provides:
Generally, such information which is not otherwise routinely
available to the public should be made available unless it is
classified pursuant to an executive order or its release might
adversely affect the national defense or foreign policy interest of the
United States, unduly intrude upon the privacy of attorneys or
defendants or compromise defense strategies, investigative
1
However, I question the majority’s alternative conclusion that, even if
CJA documents are judicial rather than administrative in nature, there would be
no First Amendment right of access to them. See United States v. Suarez, 880
F.2d 626 (2d Cir. 1989).
2
I question whether they must remain sealed in perpetuity. At some point,
after appellate and post-conviction review is over, the interests served by keeping
the materials sealed may no longer justify denial of access.
procedures, attorney work product, the attorney-client relationship
or privileged information provided by the defendant or other sources
(see 5 U.S.C. § 552(b)).
Upon request, or upon the court’s own motion, documents
pertaining to Criminal Justice Act activities maintained in the clerk’s
open files, which are generally available to the public, may be
judicially placed under seal or otherwise safeguarded until after all
judicial proceedings in the case are completed and for such time
thereafter as the court deems appropriate. Interested parties should
be notified of any modification of such an order.
Under § 5.01, CJA information is presumptively available unless the court
concludes it should be sealed to avoid undue intrusion upon the privacy of
attorneys or defendants, compromise defense strategies, investigative procedures,
attorney work product, the attorney-client relationship, or privileged information.
CJA voucher forms for attorney services specify the hours claimed for generic
categories of services: interviews and conferences, obtaining and reviewing
records, legal research and brief writing, travel time, and investigative and other
work. I do not see how disclosure of this basic information during trial could
intrude upon privacy or compromise defense strategies, investigative procedures,
attorney work product, the attorney-client relationship, or privileged information.
See United States v. Suarez, 880 F.2d 626, 631-32 (2d Cir. 1989). The categories
of work delineated on the CJA voucher form are commonplace to all criminal
defense work. To reveal that defense counsel had worked for a certain number of
hours interviewing witnesses, obtaining records, researching, writing briefs,
traveling, and investigating would only confirm what anyone familiar with
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criminal defense work would expect.
Disclosure of the fees and the number of hours expended would not be so
shocking to the public that defense counsel would be castigated to such a degree
that the ability to defend their clients would be impaired. While disclosure of
fees during the proceedings might fuel controversy, this litigation shows that
keeping fee information sealed has in fact caused controversy. The public might
be outraged at the amount of fees paid for the legal defense of persons charged
with crimes, but might be equally outraged at being denied access to that
information. “People in an open society do not demand infallibility from their
institutions, but it is difficult for them to accept what they are prohibited from
observing.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986).
Because there is no reason to deny access to this basic information, it is an abuse
of discretion to keep it under seal during trial.
Disclosure of unredacted CJA voucher forms for expert and other services
during trial could compromise defense strategies by revealing the types of experts
consulted and their names. However, the forms could easily be redacted by
deletion of the types and descriptions of services requested, the names of experts,
and any other identifying information. See Suarez, 880 F.2d at 631-32. There is
no reason to keep the amounts paid for expert and other services sealed during
trial.
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I would grant the Journal’s petition for writ of mandamus in part and vacate
that portion of the district court’s order keeping CJA voucher form cover sheets
sealed during trial.
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