A group representing the interests of the press has asked a federal appeals court in Washington to reexamine its decision blocking access to material witness proceedings that were held behind closed doors.
The Reporters Committee for the Freedom of the Press, an association of editors and reporters, filed a friend-of-the-court brief in a pending dispute in the U.S. Court of Appeals for the D.C. Circuit.
The appeals court in June ruled for the U.S. Justice Department, saying the public does not have a right to access hearings in which two victims in a sex crimes case testified in a closed courtroom. The victims were held as witnesses against their will.
The defendant, a man named Jaron Brice, asked through his lawyer to review transcripts of the material witness proceedings. The appeals court upheld a “compelling interest” in keeping the hearings secret.
The trial judge, Rosemary Collyer, said the transcript should remain confidential to not expose “intimate medical and other facts about these then-juveniles to all and sundry.”
The reporters committee said in its brief (.pdf) that it has a strong interest in advocating for the public’s right to review and report on court hearings.
“The panel’s opinion at issue here raises a significant concern about the proper application of the well-established procedure courts must undertake before sealing court proceedings and records to which the First Amendment right of access attaches,” the brief said.
The D.C. Circuit panel said no federal appeals court has ever examined whether the First Amendment right to access judicial proceedings extends to material witness proceedings. The court declined to address that larger question.
The committee’s brief, which supports Brice’s request for a rehearing, said Collyer and the D.C. Circuit failed to follow procedural steps necessary to protect the right to access judicial proceedings. Collyer, the brief said, should have made specific findings “demonstrating that closure was necessitated by a compelling government interest.”
The panel opinion, according to the reporters committee, suggests there’s a “presumption of closure” to court proceedings and documents once a privacy interest has been identified.
“A court cannot simply default to a presumption of closure every time a compelling privacy interest is implicated and still ensure that the public‘s First Amendment right of access is protected to the greatest extent possible,” the brief said.
The brief said the public’s interest in the Brice material witness proceedings is “not mere curiosity but rather about the very integrity of the courts—the judiciary’s ability to detain people who have not been charged with any criminal offense.”
The D.C. Circuit decision, the committee said, allowed Collyer to keep secret private facts and to “suppress public inquiry into—and understanding of—the government’s justification for detaining crime victims against their will.”
Brice was convicted on charges that included prostituting young girls. He is serving a 25-year prison sentence. His lawyer, Jonathan Jeffress, an assistant federal public defender, has also asked the appeals court for a rehearing.
The court has not yet asked the Justice Department to respond to the calls for a rehearing.
In its brief in the D.C. Circuit, DOJ lawyers said the material witness hearings were properly kept secret from Brice and his attorneys.
Brice, according to the Justice Department, sought to extend a limited First Amendment right of access to a hearing that “had no direct effect on his trial and solely concerned the government’s then-ongoing efforts to secure material witnesses.”
“Nothing in this court’s or the Supreme Court’s precedents warrant such a dramatic extension,” DOJ lawyers said.
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