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5.15.2001 00:05
Sealed documents
accumulating quickly in federal court file
• No explanation is being offered for the secrecy in the
high-profile corruption case.
BY TRACY BRETON
Journal Staff Writer
For the past few weeks, lawyers involved in the
federal corruption case against Mayor Vincent A. Cianci Jr. and his five
codefendants have been busy drafting and exchanging documents.
But
virtually nothing they have been doing has been put in the court record.
A flurry of secret filings has occurred since last month, when the top
federal judge in Rhode Island, Ernest C. Torres, was named to preside over the
Cianci case -- after Rhode Island's two other federal judges, Ronald R. Lagueux
and Mary M. Lisi, recused themselves.
Torres declined to comment
yesterday when asked why the flow of information has been moved out of the
public record. Public filings by prosecutors in the U.S. Attorney's office and
defense lawyers in the case have virtually stopped since the date of Torres's
first meeting with the lawyers in the case, on April 24.
The recent
spate of sealed filings began the very day the lawyers had their initial meeting
with Torres. On April 24, the court docket shows, two sealed documents were
filed with the court.
Another sealed document was filed on April 27.
Still another was filed May 7.
And a fifth sealed document was
filed last Wednesday.
No explanation is being given for the recent
secret filings in this high-profile corruption case. There is nothing in the
record to show whether the lawyers have good reason for keeping this material
out of the public record, or whether Torres reviewed the material before it was
sealed. And there is nothing indicated on the court docket which party in the
case -- the government or the defense -- is filing the sealed documents.
Torres is scheduled to meet in chambers again this morning with lawyers
for the government and the defendants in the extortion/racketeering case, who in
addition to Cianci, include Frank E. Corrente, Artin H. Coloian, Richard
Autiello, Edward Voccola and Joseph A. Pannone.
Usually, the only
material that would be kept out of the public domain in a criminal case, once an
indictment is returned, are things related to grand-jury proceedings -- which
are secret under the law -- and anything covered by a protective order issued by
the court.
And usually, each time a lawyer seeks to keep something out
of the public domain, a motion to seal is filed -- and ruled upon by a judge --
before any documents are sealed.
If the Cianci case were being
prosecuted in state court, a lawyer who wanted something placed under seal would
have to make a motion to do so -- which would be part of the public record --
and a judge would have to grant the motion before a court clerk would accept a
sealed document.
"The clerk wouldn't accept it without a court order,"
says Superior Court Presiding Justice Joseph F. Rodgers Jr. And in the Superior
Court, once a judge grants permission to seal something, it would be placed in a
sealed manila envelope in the public court file. The judge who authorizes the
sealing signs the envelope over the seal and indicates the date.
"I'm
not aware of any matter where a person could file something under seal without
filing a motion first," Rodgers said. "An attorney would have to request
permission of the court to file something under seal" and "there must be some
sort of stenographic record made about the decision to seal something."
But access to information in the federal court system is much more
restrictive than in the state courts.
In state courts, material that is
exchanged between parties in criminal cases is generally put in the public court
record during the pretrial discovery process.
But pretrial discovery in
federal court is not filed in the court file.
And historically, the U.S.
District Court for the District of Rhode Island has been unusually restrictive
when it comes to the filing of material.
Although there is nothing in
the local federal rules that require this, it has been the practice in the U.S.
District Court in Rhode Island for lawyers to file all memoranda of law only
with the judge assigned to the case, with no copy being put in the court file.
Rhode Island is the only district in the First Circuit that has this
practice. Personnel in every other District Court in the First Circuit --
Massachusetts, New Hampshire, Maine and Puerto Rico -- say that all legal
memoranda are part of the public record and are put in court files.
In
recent years, federal courts around the country have wrestled with the question
of the public's right of access to materials in high-profile cases.
In
1996, U.S. District Judge Richard P. Matsch, who presided over the trial of
Timothy McVeigh -- the man awaiting execution for the bombing of the Alfred P.
Murrah Federal Building in Oklahoma City -- ruled on motions filed by several
media entities who complained that they were improperly being denied access to
hundreds of documents that had been placed under seal in the case, including
applications and orders for payment of interim fees for court-appointed defense
lawyers.
"The crucial prophylactic aspects of the administration of
justice cannot function in the dark; no community catharsis can occur if justice
is 'done in a corner [or] in any covert manner,' " Matsch wrote.
As has
occurred recently in the Cianci case -- Matsch said that in the McVeigh case
"the docket sheets reveal a routine practice of sealing documents without
adequate recognition of the public interest in obtaining information concerning
the progress of this criminal proceeding. Many entries give only a data base
number with the phrase 'sealed (in vault)' without any identification of the
source of the document, the nature of it, the reason for not including it in the
case file or who directed or authorized such secrecy."
Based on the
media's objections, Judge Matsch set up standards for a system of records
control to evaluate claims for secrecy.
Matsch ruled that no documents
could automatically be sealed in the case.
He said that if parties
wanted to seal anything in the case, they would have to submit a motion asking
court permission to do so. All motions to seal, the judge said, would be put in
the case file and be open to public inspection. And except in emergency
circumstances, no court order would be entered for three days after the filing
of the motion to seal, to give people who might object a chance to make such
objections known to the court. Matsch ordered that public notice of any motion
to seal must be displayed in the clerk's office upon the filing of such a
motion, and said that the motion to seal and any objections would be heard in
open court.
No such standards have been set by the judge in the Cianci
case. Currently, there are three issues pending adjudication in the Cianci case
that were left hanging in the public record last month, when the flurry of
secret filings began.
One of them has to do with the constitutional
question of Cianci's right to have a private lawyer of his choice represent him
in the proceedings. The U.S. Attorney's office indicated in a public filing last
month that it wanted a few more days to decide whether it would object to
Richard M. Egbert's representation of Cianci "based on possible conflicts of
interest."
The other two other matters pending before Torres:
•
A motion by The Providence Journal to unseal a 94-page affidavit that details
corruption in City Hall. Investigators drafted the sworn document to obtain
warrants for the searches of City Hall and other Providence city offices on
April 28, 1999, the day Operation Plunder Dome became public.
• A
defense motion asking for a hearing to determine who is leaking undercover tapes
in the case. Channel 10 (WJAR) recently aired a videotape that purportedly shows
Corrente, Cianci's former top aide, in his City Hall office, taking a cash bribe
from the government's star witness in Operation Plunder Dome, Antonio Freitas.
The tape was the same one the lead prosecutor in the case, Richard Rose, showed
to two friends and his sister last summer, according to Rose, but the government
-- and defense lawyers -- claim that they did not give the tape to the media.
Keep up with Operation Plunder Dome developments at:
http://projo.com/extra/plunder/
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