Updated at 1:06 p.m.
For the second time since the 2010 trial in the murder of 24-year-old intern Chandra Levy, a District of Columbia Superior Court judge is facing a challenge over orders keeping information in the case under seal.
A year ago, the District of Columbia Court of Appeals found that Judge Gerald Fisher wrongly denied the press access to jury questionnaires from the trial of Ingmar Guandique, who was found guilty of killing Levy. Yesterday, a group of media organizations filed a motion challenging Fisher's orders keeping post-conviction records and proceedings regarding recent developments in the case under seal.
According to the motion (PDF), first reported by McClatchy, prosecutors recently notified the court of evidence that could potentially impeach a government trial witness. More information wasn't available because Fisher held subsequent hearings starting in December at the bench or in a closed courtroom, and transcripts and other documents haven't been made available to the press or the public.
The media groups argued in their motion that the "rights of access to these proceedings and records are not outweighed by any demonstrated compelling interest that could justify the near total secrecy that has been cast over this case in recent weeks."
The Associated Press, Gannett Co. Inc., The Washington Post, McClatchy Company, and the Reporters Committee for Freedom of the Press are pursuing the motion. They are being represented by Patrick Carome and Steven Lehotsky of Wilmer Cutler Pickering Hale & Dorr. Carome declined to comment.
The court docket did show that the D.C. Public Defender Service, which is representing Guandique, filed a notice of appeal of Fisher's orders sealing proceedings. According to the media groups' filing yesterday, Guandique's lawyers moved on January 18 for a summary reversal of Fisher's orders.
In a statement, PDS general counsel Julia Leighton said that they were pleased the press had joined their efforts to open the proceedings. "On behalf of Mr. Guandique we have repeatedly objected to Judge Fisher's orders closing these proceedings as overly broad and legally unfounded," she said. She added that PDS could not comment further in light of a protective order in place.
A spokesman for the U.S. attorney's office, William Miller, said they have no comment.
Last January, the D.C. Court of Appeals ordered Fisher to make the jury questionnaires available. A three-judge panel found that although Fisher promised jurors the questionnaires would be kept secret, the public's constitutional right to access information about criminal trials included jury selection. The Washington Post, which brought the challenge, and other news outlets were entitled to the questionnaires as surrogates for the public, the court ruled.
The jury questionnaire ruling last year "reinforced for the court that openness is not just a convenience but a constitutional mandate," said Gregg Leslie, legal defense director at the Reporter's Committee for Freedom of the Press. When it comes to the possible re-evaluation of witness testimony or other issues, he added, "you shouldn't have those discussions or determinations of what to do in secret."
The appeals court's ruling on the questionnaires was cited throughout the motion filed yesterday. The media groups noted that Fisher hadn't made specific findings about why he was keeping the latest round of proceedings secret, a requirement to overcome the presumptive right of access to case information under the First Amendment. According to the brief, Fisher stated that the disclosure of information "may create safety issues."
Another hearing is scheduled for February 7. The media groups said in their brief that it wasn't clear whether that hearing would be open.
Guandique, who was found guilty of two counts of first-degree murder in November 2010, appealed his conviction to the D.C. Court of Appeals. According to yesterday's filing, the briefing schedule on that appeal has been put on hold.