In North Jersey Media Group, Inc. v. United States, the Third Circuit addressed another interesting legal issue that arose within the Bridgegate scandal in New Jersey. You can read more about that case here.
The media’s right to access information about this ongoing trial conflicted with the right of an unindicted co-conspirator to remain unknown. The unindicted co-conspirator won. He remains John Doe.
It turns out that whether a document is a court filing or a discovery letter makes a very big difference.
The Motion for a Bill of Particulars
Like many complex white-collar cases, the indictment of New Jersey government officials Bridget Kelly and William Baroni alleged that they committed their scheme to misuse government funds with several co-conspirators. A defendant’s normal strategy is to file a motion for a bill of particulars, so you can find out who the government thinks is a co-conspirator. Ms. Kelly and Mr. Baroni did just that.
The government, as it always does, opposed the request. (It never likes to tell the defense anything it doesn’t have to.) But the government agreed to provide “in a document to be filed under seal, identify any other individual against whom [it] has sufficient evidence to designate as having joined the conspiracy.”
The government provided a “Conspirator Letter” to the defense on January 11, 2016. The government also provided a copy to the district court judge but did not file a formal motion to seal it. The government apparently did not file the Conspirator Letter with the court clerk.
When Mr. Baroni objected to how the letter was submitted to the court, the government again objected. It cited the U.S. Attorney’s Manual that directs prosecutors to “avoid unnecessary public references to wrongdoing by uncharged third-parties. The government argued that maintaining the letter under seal was in line with DOJ policy.
(This amuses me. I agree with DOJ’s policy here. But DOJ always says the USAM is not binding and creates no substantive rights for a defendant if DOJ violates the policies in it. But when it suits DOJ’s purposes, it relies on the USAM’s policies.)
Ultimately, the court did not rule on the motion for a bill of particulars. At a motions hearing, the court dismissed all discovery motions (which included the motion for a bill of particulars) as moot.
The Media’s Motion to Intervene and the Appearance of John Doe
This was all well and good until the media learned of the Letter’s existence. A group of media companies then filed a motion to intervene to obtain a copy of it. The identification of unindicted co-conspirators in a major public corruption case (including one that implicates Governor Chris Christie) makes for good copy.
The district court ruled that the Letter should be disclosed, concluding that it was equivalent to a bill of particulars. The privacy interests of the unindicted co-conspirator did not outweigh the public interest in disclosure.
John Doe (not his real name, of course) intervened, seeking a stay of the Letter’s release. The district rule ruled against him. This time, it reasoned that the government had never provided the court with discovery material before, so the provision of the Conspirator Letter to the court supported the conclusion that it was a (public) judicial record and not merely a (non-public) discovery letter.
This emergency appeal followed.
The Third Circuit’s Decision
The Third Circuit first explained the important role the media plays in the judicial system. It has a right to access documents involved in criminal proceedings When the media’s right to access is challenged, however, courts use a two-part test.
First, they look to whether “there has been a tradition of opening to the press the matter in question.” This is called the “experience” prong.
Second, courts evaluate the “logic” prong. In this prong, courts
look to whether “public access plays a positive role in the judicial process by, inter alia, ‘enhancing both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.’” (quoting United States v. Wecht, 537 F.3d 222, 233-34 (3d Cir. 2008).
If both prongs are satisfied, then the media has a presumption of access. However, this presumption 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.” Press-Enterprise Co. v. Superior Court of Cal. for Riverside City, 478 U.S. 1 (1986).
Was the Conspirator Letter a Bill of Particulars or a Discovery Letter
For the “experience” prong, the media argued that the Conspirator Letter was akin to a bill of particulars. The Third Circuit agreed that bills of particulars are public documents.
The question, then, was whether the Conspirator Letter was a bill of particulars or a discovery letter. As the court stated, the
difference of opinion over the character of the Conspirator Letter is no mere battle over labels. It is the issue that, at least on the constitutional point, decides this case.
Ultimately, the Third Circuit concluded that the document was not a bill of particulars for four reasons.
First, the government did not treat it like a bill of particulars—providing only limited information and maintaining its opposition to the defense motion for a bill of particulars.
Second, the district court did not treat it like a bill of particulars. Most telling, it did not order the government to provide a bill of particulars, as it ruled that the motion was moot.
Third, the defendants did not treat it like a bill of particulars. For example, they did not insist that it be filed with the court clerk.
Fourth, “the Conspirator Letter does not serve the purpose of a bill of particulars.” According to the court of appeals, a bill of particulars will “fill the holes” when an indictment is too vague to allow the defense to understand the nature of the charges against him. Here, though, the indictment was 36-pages long and quite detailed.
The court rejected the media’s argument that the letter should be disclosed because it contained information that could have been included in a bill of particulars. It also rejected the media’s argument that the letter was a direct result of the motion for a bill of particulars. Neither of those factors could convert what the court viewed as a discovery letter into a bill of particulars.
The “Logic” Prong
The court also noted that the “logic” prong was also in Doe’s favor, in part because the information in the letter does not have any “evidentiary significance.” It may have significance down the road, but this chance of significance is not sufficient to show that it should be disclosed now.
As a more practical matter, the court also explained that
were we to apply a right of access in this case, it could stunt future efforts by prosecutors to resolve pretrial discovery disputes and motions practice without having to involve the district courts.
Is There a Common Law Right of Access?
Finally, the Third Circuit rejected the media group’s contention that the common law right of access to judicial records that requires disclosure here.
This common law right applies only to “judicial records.” Generally speaking, a court filing is a judicial record and discovery letters are not.
Here, the Conspirator Letter was not filed but was emailed to the district court judge. This was sufficient for the court to conclude that it was not a court filing and thus not a judicial record that subjected it to the common law right of access.
John Doe Won, and He Should Have
I think the Third Circuit got this ruling right. The media’s right of access is not absolute and the analysis of the prongs seems fair. Someone who has not been charged should not be publicly named as an “unindicted co-conspirator” – that kind of smear may ruin someone’s career for no reason whatsoever.
I’m as curious as the next person about who is named in that Letter. Is it Governor Chris Christie? We’d all like to know and anyone who reads my Twitter feed knows how I feel about the candidate he is supports.
But if the government has concluded that it is not charging John Doe with a crime, and the government has not yet decided to place him on a witness list, then I don’t see how smearing his name across the front page would be fair to him. If producing the Letter to the media would help the defendants, then I’m all for it. But that is not the case here.