10:05:03 AMBoston bombing court files cloaked in secrecy
More than three months after the deadly bombing at the Boston Marathon, the court cases stemming from the attack remain cloaked in an unusual degree of secrecy, stirring concern from transparency advocates and First Amendment lawyers.
In the high-profile criminal case against alleged bomber Dzhokhar Tsarnaev, only 27 of 69 numbered court filings or orders are publicly available, with at least 42 entirely missing from the public docket.
Across the four criminal prosecutions related to the bombing, at least 56 legal filings are under wraps, based on gaps in the sequences in the public dockets.
In addition, in the weeks after the April 15 attack, the U.S. District Court in Boston opened dozens of criminal-related matters that remain completely sealed. At least 137 such cases were opened in the 30 days after the bombing.
Due to the secrecy, it’s difficult to know how many of the "Sealed v. Sealed” matters pertain to the bombing investigation, but many seem likely to be search warrants, supporting affidavits and lists of items seized in connection with the attack that killed three people and wounded scores more near the finish line just outside Boston’s Copley Square.
"My initial thought is, frankly, I’m shocked to see the quantity of sealed filings or otherwise unrevealed motions or whatever that shows up on the docket,” said Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. "It tells you that major parts of this case are being conducted out of the public view. If ever there was a case that cries out to be conducted in a public forum, this is it. It’s pretty shocking.”
A media lawyer who tackled secret docketing practices in neighboring Connecticut also said he was disturbed by the secrecy in the marathon cases.
"When it comes to sealing cases or files or documents is that judges are supposed to make written findings on the record that justify the conclusion that the normal presumption in favor of openness is outweighed by some particular compelling interest in non-disclosure,” Daniel Klau, a Hartford, Conn. media lawyer.
"When you go onto a docket and what you have is just completely missing entries with no capability for a member of the public or press to ascertain whether a judge has complied with their constitutional obligation to make those necessary findings, that’s disturbing,” he said.
A court official in Boston acknowledged that the gaps in the docket indicate a significant number of sealed pleadings.
"The missing docket numbers represent motions to seal, which are given docket numbers, and the actual motions, documents or pleadings, which are also given individual docket numbers,” said the official, who asked not to be named. "Requests to seal a matter can be made by counsel for either party, i.e. the defense or the government. The decision to seal is at the discretion of the judge. "
The official said the "most frequent reasons for sealing” include "ongoing investigations, which could be jeopardized by the dissemination of the information: ex parte requests for funding by the defense; and issues of privacy, i.e. personal identifying information, medical information covered by [a health records privacy law] or some other privilege.”
Asked about the volume of sealed filings in the criminal cases, a spokeswoman for the U.S. Attorney’s Office in Boston cited the ongoing investigation.
Spokeswoman Christina Sterling offered the same explanation regarding the search warrants, which she acknowledged remain sealed three months after the bombing. "It is not unusual for search warrants to remain sealed during an ongoing investigation,” she said.
A lawyer for Tsarnaev, federal defender Miriam Conrad, did not respond to an e-mail seeking comment on the secret filings.
Some of the sealed filings in the Tsarnaev case appear to pertain to defense requests relating to the defendant’s treatment at a prison hospital near Boston.
In a pair of public orders issued in May, Magistrate Judge Marianne Bowler ordered the prison to turn over certain activity logs, photographs and other records to the defense, instructed the prison to take some photos of Tsarnaev, and rejected the defense’s request to block the prosecution from examining the records.
Bowler wrote that the pleadings were submitted under seal — and, in at least one instance, without notice to prosecutors — but she said she saw "no basis” to seal her orders. She did not explain what basis, if any, there was to seal the related filings, which appear to account for only a few of the secret pleadings.
The number of entirely sealed cases in the federal magistrates’ criminal docket appears to have jumped sharply after the bombing, though the practice was a common one before the attack: A total of 81 matters filed in the month leading up to the bombing remain completely under seal, versus 137 under seal in the 30 days after the attack.
In the same 30-day period a year ago, 82 matters remain under seal, though others that were under seal early on have been made public now.
Asked about the sealed search warrants, a court official said simply: "Search warrants are unsealed upon motion allowed by the court or upon the court’s own initiative. The unsealing can occur at any point during the course of the case.”
While a First Amendment right to filings and orders in criminal prosecutions is well established, the law surrounding access to search warrants is more murky.
One appeals court, the St. Louis, Mo. based 8th Circuit, has found a qualified constitutional right of access. Another, the Richmond, Va.-based 4thCircuit, found a weaker, common-law right of access. And another, the San Francisco, Calif.-based 9th Circuit found no public right to examine search warrant records during an ongoing investigation.
However, even the 9th Circuit said such a right might exist once a suspect has been indicted, as Tsarnaev was in late June.
The pervasive sealing has left unclear whether the court or prosecutors are complying with some aspects of federal court rules.
For instance, under the Speedy Trial Act, an indictment is required to be filed within 30 days of a person’s arrest. That did not happen with Tsarnaev, who was indicted on 30 felony charges more than two months after his arrest on April 19.
Three men facing preliminary charges for helping to cover up Tsarnaev’s connection to the bombing, Azamat Tazhayakov, Dias Kadyrbayev, and Robel Phillipos, were arrested on May 1 and have not yet been indicted—at least not publicly.
It seems likely that all four men waived their right to be indicted within 30 days, but this fact can’t be ascertained from the modest number court records the public can access.
Is this why it's sealed?[click link below]
By JOSH GERSTEIN
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