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Gun From Brooklyn Shooting in 2013 Will Not Delay Trial in SDNY In 2019 Circuit Judge Sullivan Rules

By Matthew Russell Lee

SDNY COURTHOUSE, August 2 – For a narcotics conspiracy trial set to begin August 12 in the U.S. District Court for the Southern District of New York before Circuit Judge Richard J. Sullivan, a wildcard arose on August 2. It is a gun from a 2013 shooting in Brooklyn that may be connected to defendant Ernest Murphy but is not, the government concedes, connected to the narcotics conspiracy.

   Judge Sullivan fired off hypotheticals at Assistant US Attorney Matthew Hellman: if you, Ms. Portlock and I were in a conspiracy and I asked you to buy me lottery tickets, would that be evidence of the conspiracy?

  When Hellman said that a gun or disposing of a gun is different in that it is a crime, Judge Sullivan ask if the three of them were in an insider trading conspiracy, would it be relevant if he asked Hellman to go rob a convenience store?

  That may be the operative word, convenience. The defense sought an adjournment of the trial date to hire an expert; the government indicted it would consent to an adjourment from August 12 to September 9.  "You're trying to take over my schedule?" Judge Sullivan asked. He said the trial will go forward on August 12, with a final pre-trial conference next week. Inner City Press will follow this case, US v. Tyshawn Burgess, Ernest Murphy et al., 18-cr-373 (RJS), and another case:

Back on July 26 a man who pleaded guilty to narcotics charges back in June 2005 was belatedly set to be sentenced by Judge Sullivan but then asked that it be delayed three weeks and sealed, in a joint request with the U.S. Attorney for the Southern District of New York. Inner City Press was present; Circuit Judge Richard J. Sullivan corrected told Assistant US Attorney Nicholas Chiuchiolo that he should make his request to seal in writing.

  But apparently the government's request to seal will itself be sealed. How then can the Press or public address whatever arguments the government may make?

   Because the still undisclosed argument seems to be that the individual to be sentences after all this time might be at risk, Inner City Press is choosing not to disclose his name at this time. But it should have an opportunity to be heard on any possible sealing of the publicly announced sentencing which it went to attend and cover and was then pulled back.

   Tellingly, the sentencing submissions by the government due July 11 and by the Defendants due July 18 were not even listed in the docket as sealed documents. It is as if they were never filed. This should not occur with whatever is filed by Judge Sullivan's August 16 deadline for requests to seal.

  The case was initially assigned to then-Judge Scheindlin. It appears that Judge Sullivan to whom it was assigned, and who asked for an update, discovered that it was simply pending. Would the defendant ever have been sentenced? This and the decision not to allow the government to seek sealing at a fast whispered sidebar are much to Judge Sullivan's credit.

 Inner City Press now understands that because in the Department of Justice a US Attorney's office can only seek sealing with the approval of the Attorney General, the practices has been to simply hold the session and hope, usually correctly, that no press would come.

 Now in 2019 that the Press goes, the first move to was move the proceedings to the robing room. Then to simply order the Press to leave. Then to do so after a whispered sidebar. Now this - in context, progress. But what about the opportunity to be heard? Watch this site.

Back on July 22 in a court proceeding that began as open, with the defendants' family members and even legal interns present, Inner City Press was ordered to leave, leaving no media or member of the general public present.

  It took place in the U.S. District Court for the Southern District of New York at 500 Pearl Street in Courtroom 14C before Judge Paul A. Crotty: USA v. Perlson, 18-cr-751.

  When Inner City Press went in at 11:30 am, at first Judge Crotty was asking why a transcript in the case said it was from November 31, when November has only 30 days.

  "Good catch," the Assistant US Attorney said, adding that he thought it was from October 31. He added that Perlson would now be allocuting to Count 2 and that there was a cooperation agreement.

  Suddenly the lawyers pointed out Inner City Press in gallery, and said while legal interns were OK then objected to Inner City Press' presence. Judge Crotty asked Inner City Press to identify itself.

  "I am a reporter. If you are going to try to close a public courtroom there must be specific findings, for specific portions. There is case law."

  There followed a sidebar, apparently transcribed, from which Inner City Press was excluded. At the end Judge Crotty while ordering Inner City Press to leave said that the government's case is moving along well and that he hoped to unseal the transcript in a month.

  But is that enough? Inner City Press left the courtroom as ordered, adding as it left that a case on point is United States v. Haller, 837 F.2d 84, 87 (before closing a proceeding to which the First Amendment right of access attaches, the judge should make specific, on the record findings demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest).

  But Inner City Press was not given an opportunity to make its argument before being ordered out. And once back to the PACER terminal at which it has been working for months, searching by "Perlson" resulted in nothing, and 18-cr-751 "case not found."

  On 9 July 2019 before SDNY Judge Loretta A. Preska: listed on PACER and in the SDNY lobby for 10 am before her was the case of USA v. Connors Person, et al, 17-cr-683, complete with letters of support from the head bank regulators of the state of Alabama.

  But when Inner City Press arrived at 10:10 am, there was a shackled defendant with corn rows at the defense table. His lawyer stood and summoned Assistant U.S. Attorney Frank Balsamello out into the hall by the elevators.  When they returned, at the same time as two of the defendant's family members, Judge Preska asked about those present in the room, and summoned the lawyers up for a sidebar - with a court reporter, which may later be significant.

  After the sidebar discussion, Judge Preska called the case as US v. Santino-Barrero (phonetically - it was not written down anywhere.) Then Judge Preska asked the defendants' family members to stand, then the legal interns, then other interns introduced by one of the Marshals.

  "Is that you in the back, Mister Lee?" Judge Preska asked.  Inner City Press previously reported daily on the UN bribery trial and sentencing of Patrick Ho before Judge Preska, once answering in open court her question about press access to exhibits in that case. So the answer was Yes.

  I'm going to have to ask you to leave, Judge Preska said. Inner City Press considered asking why, right there, but decided against it. It has recently been advised to not ask so many question, even as its question about a suddenly sealed June 17 sentencing by SDNY Judge Lorna Schofield remains unanswered, see below.

  The PACER terminal in the SDNY Press Room does not list a Santino Barrero as a defendant. The Bureau of Prison's website is only searchable with a first name, which was not given.

  Back on June 17 the sentencing of a defendant seeking time served, seemingly for cooperation with the government, was abruptly declared "sealed" by SDNY Judge Lorna G. Schofield on June 17.

She said she was going to seal the transcript, but that once this reporter walked into her open courtroom 1106 in 40 Foley Square, she moved the entire proceeding into her robing room, closed to the Press and public.

  Nowhere on the electronic board in the SDNY lobby at 500 Pearl Street was any proceeding before Judge Schofield at that time list. Nor in the day's PACER calendar.

  So it is both a confidential sentencing, and a confidential case?

Judge Schofield's Rules for Criminal Cases, ironically, provide that there is a presumption that all sentencing submissions are public, and that if anything is redacted only those pages with redactions can be withheld from the public docket.

  But no such distinction is possible when an entire proceeding is moved into the judge's robing room barred to the press and public, with no notice or opportunity to be heard. Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.


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