Updated 4:27 p.m.
Trumpeting the First Amendment, a federal trial judge in Washington today said a defense lawyer charged in an obstruction case has a right to review court documents that are under seal in a case that involves a cooperating witness for the government.
The lawyer, Charles Daum, a longtime Washington solo practitioner, is charged with orchestrating a scheme to exonerate a client in a drug case in U.S. District Court for the District of Columbia. Daum and two defense investigators were indicted earlier this year.
Prosecutors are relying on the cooperation of several people, including Daum’s former client, Delante White. Government lawyers contend Daum and the two investigators, Daaiyah Pasha and Iman Pasha, participated in a plot that involved fabricated evidence and false testimony in the prosecution of White on drug charges. The case ended in a hung jury.
After the mistrial, the proceedings in the White case went under seal, and prosecutors have fought for months to keep the information from Daum’s lawyers, including David Schertler and Danny Onorato at Schertler & Onorato, and from the attorneys for the investigators. Daum and the investigators have pleaded not guilty.
Prosecutors said Daum and the Pashas were not entitled to access the documents in the White case. That information includes statements White and others made to investigators about Daum and the investigators. Prosecutors allege White and at least one brother were involved in the conspiracy to fix his drug case.
Daum's lawyers said they need the information to challenge the integrity of cooperating witnesses.
Judge Gladys Kessler of Washington federal district court today ruled against the government, saying that Daum and the two investigators have a First Amendment right to access and review the proceedings that unfolded in the White case. One of White’s brothers, Jerome, is expected to be a witness for the government against Daum.
“Now I consider the defendants on an even playing field with the government in this case,” said Cozen O’Connor partner Bernie Grimm, who represents Daaiyah Pasha. “At this stage, there are no more secrets.”
Gladys Weatherspoon, the Greenbelt, Md., solo practitioner who represents Iman Pasha, was not immediately reached for comment this afternoon. William Miller, a spokesman for the U.S. Attorney’s Office for the District of Columbia, declined to comment on Kessler’s ruling.
In urging Kessler to keep the White proceedings under seal, prosecutors said they were concerned about the safety of Jerome White.
“The question, then, becomes whether the government can establish that there is a compelling interest in denying defendants in this case access to court proceedings and documents included in the White case,” Kessler wrote in her ruling (PDF). “The government has failed to do so.”
Kessler said the White proceedings went under seal more than two years ago and that Daum and the investigators are already aware of the government’s chief sources of information. The judge said there is “simply no reason, other than perhaps the government’s strategic needs” to bar Daum from access to the documents in the White proceedings.
Prosecutors argued that the government would, in advance of Daum’s trial, disclose the identity of witnesses and any plea deals they reached. Kessler said that the government believed Daum’s attorneys should not receive the favorable information so far in advance of trial. Kessler rejected the government’s position.
Kessler said the legal principles that govern prosecutors’ obligations to turn over exculpatory information and witness statements apply to information in the government’s custody.
What Daum and the two investigators wanted, the judge said, “is material that is presumptively protected by the First Amendment, absent any compelling interest. There is no such compelling interest and, therefore, the defendants have a First Amendment right to access the material.”
Daum’s trial is scheduled for March in Washington federal district court.
"We are pleased with Judge Kessler's order, which unseals presumptively public court documents that are critical to Mr. Daum's defense," Schertler said in an e-mail. "The court correctly ruled that the government was unable to carry its burden of justifying the continued sealing of these materials under the current circumstances of the case."