The Justice Department wants a federal appeals court in Washington to keep secret proceedings that involved two girls who were arrested and detained as material witnesses in a sex trafficking prosecution.
Last year, a federal trial judge in Washington denied a defense lawyer's request to unseal the hearings, which were rooted in the prosecution of a man named Jaron Brice. Brice’s appeal of his 25-year prison sentence is on hold pending resolution of his attorneys’ access to the material witness hearings.
The Justice Department’s Matthew Nicholson, a Bristow fellow in the Solicitor General’s Office, argued today in the U.S. Court of Appeals for the D.C. Circuit that the government has an interest in keeping the material witness proceedings confidential. Judge Rosemary Collyer last year sided with DOJ, denying Brice’s access to the closed hearings.
In court today, Nicholson said the proceedings contain highly personal information about the two girls—victims of Brice’s sex crimes—who were jailed as witnesses. Brice’s crime, Nicholson said, was a “painful point” in the lives of the two girls, who are now adults.
Nicholson said that Brice’s First Amendment argument about his right to access the sealed hearings “isn’t the right way to go about it.” Brice, for instance, could have raised a due process argument in the trial court. Nicholson argued that Brice does not stand in the shoes of the public in seeking access to the confidential proceedings.
The government, Nicholson also said, has an interest in keeping secret the names of witnesses during pretrial proceedings, to minimize the potential for intimidation. He assured the panel judges—Judith Rogers, Karen LeCraft Henderson and Brett Kavanaugh—that safeguards are built into the material witness laws to reduce the potential for abuse. He noted the two girls in the Brice case each had access to an attorney.
In court papers in the case, Nicholson said there is no “established tradition of public access to material witness hearings.” Such hearings, Nicholson said, “involve imparting sensitive investigatory information to judicial officers to show why a witness should be arrested and, if necessary, detained.”
Nicholson said public access to material witness hearings “would often hinder” the function of the proceedings. “Most obviously, if the proceedings to issue material witness warrants were open to the public, there would be a serious risk that the subject of a warrant would flee before he could be apprehended,” he said.
Brice’s lawyers, led by assistant federal public defender Jonathan Jeffress, said in court papers that Brice is not challenging the sealing of the material witness warrant itself but the confidentiality of the follow-up judicial proceedings.
The sealing of a material witness warrant “does not remotely justify precluding the press and the public” access to the subsequent proceedings, Brice’s attorneys said.
“Material witness hearings frequently involve a judicial determination of whether to detain indefinitely mere witnesses to crimes,” Jeffress said in court papers in the D.C. Circuit. “Judicial proceedings involving decisions of such importance undoubtedly enjoy First Amendment protection.”
Collyer, the trial judge, sealed both of the material witness cases. Jeffress said there are no publicly available docket entries for either case. Collyer referred to the material witness hearings when she sentenced Brice in 2009 to 25 years in prison. In April 2010, Brice’s attorneys asked Collyer to unseal the proceedings.
In denying Brice’s request, Collyer said in an order that the hearings “contained substantial amounts of material of an especially personal and private nature” related to the medical, mental and educational history of the two girls.
Collyer found that no measure short of detention would secure the appearance of the two girls—alleged victims of Brice’s sex trafficking crimes—at trial. Collyer said detention was necessary for the safety of the girls and to foster their emotional well-being.
Jeffress argued today that Collyer did not consider reasonable alternatives to complete sealing. The redaction of records, he said, is one of the many tools in the hands of district judges to ensure protected, private information is not released wholesale to the public.
The government, Jeffress argued, has failed to offer any reasonable reason why the actions of Collyer and the prosecutors in the Brice case should remain under seal. “These are things the First Amendment right of access attaches extremely strongly to,” he said.
What needs to come to light, Jeffress said, is Collyer’s legal reasoning for detaining the two girls. “We’re talking about a process where people are detained, deprived of their liberty,” he said.
The appeals court did not immediately rule.