| As
Avenatti Gets Free Lawyer in Stormy Case
Seeks To Seal Info As Inner City Press
Opposes
By Matthew
Russell Lee, Patreon
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SDNY COURTHOUSE,
Aug 27 – When after three days
of jury selection the trial of
Michael Avenatti for allegedly
extorting Nike began on
January 29, Assistant US
Attorney Robert Sobelman told
the selected jurors that
Avenatti was supposed to look
out for the interests of his
client, but he did not - he
had a weapon, social
media. More on 1st day
on Patreon here.
On August 7
in the Stormy Daniels case,
Avenatti had motions heard by
U.S. District Court for the
Southern District of New York
Judge Jesse M. Furman. Inner
City Press live tweeted it, here.
Now on
August 27, Inner City Press
has filed a formal request
that documents in the case not
be sealed, full filing on
Patreon here:
"PLEASE TAKE NOTICE that Inner
City Press and its undersigned
reporter, in personal
capacity, will move this Court
before Honorable Jesse M.
Furman, U.S. District Judge
for the Southern District of
New York, at a date and time
directed by the Court, for
entry of an order granting
permission to the heard on/and
the unsealing of the CJA Form
23 and associated documents
including but not limited to
affidavit in US v. Avenatti,
19-cr-374 (JMF) pursuant to
Docket No. 86 in that case and
the Court's inherent power,
and such other and further
relief as the Court deem just
and proper.
As
the Court is aware, the public
and the press have a
presumptive First Amendment
and common law right of access
to criminal proceedings and
records. See Press Enterprise
Co. v. Superior Court of
California, 464 U.S. 501, 508
(1984). The presumption of
openness can only be overcome
if “specific, on the record
findings are made
demonstrating that closure is
essential to preserve higher
values and is narrowly
tailored to serve that
interest.” Press–Enterprise
Co. v. Superior Court, 478
U.S. 1, 13-14 (1986)
Non-parties such as Inner City
Press and myself have standing
to intervene in criminal
proceedings to assert the
public’s right of access.
United States v. Aref, 533
F.3d 72, 81 (2d Cir.
2008).
Only this month in SDNY
Magistrates Court the content
of CJA Form 23s have been read
out in the public record,
including for the appointment
of Federal Defenders. See,
e.g., US v. Castro, et al.,
20-mj-8994 (Freeman) & here.
Those and
other defendants whose CJA
Form 23 and financial
information have been
disclosed including in
Magistrates Court this month
had the same arguments as made
by Federal Defenders in their
August 21, 2020 letter, that
the information might be used
against them. And yet the
other defendants' information
was disclosed.
While Inner City Press'
interests are journalistic,
since Federal Defenders states
that "there is no dispute over
Mr. Avenatti's eligibility to
be represented by Federal
Defenders of New York, Inc., "
for the record consider this
letter as disputing that,
including in light of the sums
of money discussed and proved
in the Nike trial before Judge
Gardephe. If despite this
defendant still claims there
is no dispute about
eligibility, consider this a
request for a hearing (or
additional, focused letter
briefing) on that
issue.
As stated in US v. Harris, 707
F.2d at 663 (which Federal
Defenders asserts is
distinguishable but we contend
is not), facts should be
determined through adversarial
proceedings.
While beyond the scope of this
letter, the Court could limit
the use in this case by the
prosecution of the unsealed
information, without
unnecessarily overriding the
presumption of public access.
Here, the sealing(s) and
withholding of the CJA Form 23
and affidavit in their
entirety go beyond those
requested even in the CIA
trial before Judge Crotty, US
v. Schulte, 17 Cr.
548.
In that
case, Inner City Press
vindicated the public's right
to know, in the docket, see here
and here.
Inner City Press recently got
even more sensitive filings
unsealed in a North Korea
sanctions case before Judge
Castel, US v. Griffith,
20-cr-15 (PKC), Docket No. 33
(LETTER by EMAIL as to Virgil
Griffith addressed to Judge P.
Kevin Castel from Matthew
Russell Lee, Inner City Press,
dated 5/18/2020, re: Press
Access to documents in US v.
Griffith, 20-cr-15), 40 (order
to unseal) and 41 unsealed
filings). See also Inner City
Press' May 9, 2020, filing to
this Court for openness in US
v. Randall, 19-cr-131,
No. 343.
The U.S. Supreme
Court has recognized that
reporting by the news media
allows members of the public
to monitor the criminal
justice system without
attending proceedings in
person. Richmond Newspapers,
Inc. v Virginia, 448 U.S. at
572-73 (1980). By
attending and reporting on
court proceedings, members of
the press "function[] as
surrogates for the public."
Id. at 573. Inner
City Press has covered the
case(s) against Mr. Avenatti
for some time, see e.g., May
13, 2020, ESPN Louisville
Sports Live, "On this episode
of LSL, the guys speak with
court reporter, Matthew
Russell Lee about the lack of
fallout from the evidence
exposed about Nike in the
Michael Avenatti trial," for
example on radio here.
Inner City Press and I are
submitting this a day early in
part because we are unsure if
the US Attorney's Office will
be pushing for openness to the
public. In another pending
case, US v. Edwards, 19-cr-64
(GHW), the Office had
initially said that documents
submitted by the defendant
(described as the leaker of
Paul Manafort's Suspicious
Activity Reports) should be
put in the public docket.
Then, while Inner City Press
is pursuing
that, the US Attorney's Office
has stopped pushing. So, just
to preview, we may seek leave
to sur-reply depending on what
not only the defendants /
Federal Defenders but also the
US Attorney's Office have to
say.
Federal Defenders
say that the US Attorney's
Office lacks third-party
standing to assert any right
on behalf of the public to
access the defendant's sworn
financial statements, cited US
v. Hickey, 185 F.3d 1064 (9th
Cir. 1999). But here, Inner
City Press is timely asserting
the public and press' right of
access. The
documents at issue should not
be sealed and should be made
available. Please confirm
receipt & docket this
timely responsive filing.
Thank you. Respectfully
submitted, /s/ Matthew Russell
Lee, Inner City Press." We'll
have more on this.
This case is US v. Avenatti, 19-cr-374
(Furman).
***
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