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Covid and the Courts Overheard From SDNY Press Room With Access Increasing and Redactions Opposed

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, June 13 – How U.S. Federal courts have continued during the COVID-19 pandemic looks or sounds different from the press room than from the bench.

The U.S. District Court for the South District of New York has issued more written orders per week since it went virtual than before. This is perhaps a function of judges having more time, ruling from their homes, or of more lawyers in civil cases asking for decisions on the papers, without oral arguments.

SDNY Judge Jed S. Rakoff has mourned the inability to see and send visual signals to the lawyers making oral arguments before him, and the cases in which lawyers forego oral argument by phone. Things sound different from the press room and this is the beginning of that story. 

   Inner City Press has been covering or listening in on up to 16 proceedings a day, sometimes three at a time, from the PACER terminal in the SDNY Press Room since mid-March. At first it was mostly emergency motions for compassionate release or release on bond to escape the spread of COVID-19 in the prisons.

Each prison has a difference record: the MCC just across Pearl Street, the MDC in Brooklyn already famous for its lack of heat, and the cooperators' GEO private prison in Queens, here and picked-up here.

Then there are the state facilities used by the Federal Bureau of Prisons, like those in Valhalla in Westchester County and the Newark's Essex Country Correctional Facility where, Inner City Press reported, visiting lawyers were made to use a shared oral thermometer to be checked. Further north there's the Auburn Correction Facility where Judge Katherine Polk Failla to her credit has inquired into the lack of a DVD player for an inmate to review video of alleged abuse by law enforcement.

   Soon, though, civil litigation started back up. Some were as mundate or telling as cases against restaurants closed down by COVID, some never to reopen and those losing jurisdiction. Others were habeus and immigration petitions, with detainees being sent back to countries with less known COVID conditions.

    Inmates' medical conditions, for obvious reasons, are often redacted in the public PACER docket. But there seems to be an increase in unilateral requests to withhold whole filings and issues, some overturned when challenged by the Press, some upheld.

Subpoenas about North Korea's United Nations Mission's e-mail account, originally "ex parte and in camera," where ordered unsealed by SDNY Judge P. Kevin Castel when Inner City Press requested. But information on CJA lawyer Lisa Scholari's conflict of interest with regarding to a Takashi #6ix9ine co-defendant was, for now, been entirely withheld, while another perhaps related "sealed proceeding" was held. 

 To their credit, SDNY Judges Ronnie Abrams in 40 Foley Square for the sentencing of "meth warlord" and wanna-be Bitcoin miner Paul Leroux and from the White Plains Federal Courthouse Judge Cathy Seibel in a racketeering case have sua sponte suggested that filings should be unredacted.

  As with Judge Rakoff's run in with an unmuted listener who opined, "This is so boring," live-tweeted by Inner City Press and then reported elsewhere, there have been hiccups.

There was the supervisee who mid-rant asked, "Berman, you sound differen than usual, is that you?" This drew a typically good-natured response from SDNY Judge Richard H. Berman.

There was the Bronx immigration attorney who talked over SDNY Judge William H. Pauley III to say that she could not or would not submit a brief on the schedule he suggested. (Judge Pauley has been telling a joke about lawyers resisting agreeing to briefing schedules by saying their electronics had been taken by the Court Security Officers downstairs, an excuse not available from home. As an aside, starting June 15 those phones will be taken in single-use plastic bags). 

  Some judges and their deputies make a point of asking, Who is on the line? This led, in at least some proceeding listed as open to the public, to Inner City Press being asked to "bow out," by SNDY Magistrate Judge Robert W. Lehrburger, still unexplained.

District Judge Gregory H. Woods makes a point of a saying, I am not monitoring who is on this call, it is up to the lawyers to understand that this is an open proceeding. 

    Some lawyers still don't understand, or pretend that they don't, including one who wrote to an SDNY judge complaining about Press coverage of their own discussion, in "open court," of settlement numbers. While litigants can and somtimes due threaten each other with sanctions for frivolous threats, the media has less recourse and such threats or even filings could lead to self-censorship or simply not calling in.

   Chief Judge Colleen McMahon, as she does when in her courtroom, makes a point of welcoming family members to a sentencing, even if only over the phone.

But on the CourtCall platform, they cannot thank her back. Some judges has taken to Skype for Business, sometimes without listing the call-in number for the press and public, at least not on PACER.

    Judge Lorna G. Schofield schedules back to back status conferences in civil cases, and moves from one to the other with aplomb. Other judges use a single AT&T toll free line such that lawyers from the next case sign or beep into the last one, and hear what is going on.

Covering Magistrates Court presentments as more hit and miss than in person. Inner City Press cannot simple go to Courtroom 5A and sit in the back, trading stories about The Bronx as one charge of plea follow another under a just-detained defendant is brought out.

There seems to be no way to know when the CourtCall line is in use. The press officer of the U.S. Attorney for the EDNY announces many of these presentment, not only in the Molotov cocktail cases that went to the Second Circuit but even more day to day crimes. His SDNY counterparts sometimes mention presentments only after they have happened.   

As some of these proceedings go back to being in person, what will change, and what will remain? Big picture, Judge Alison J. Nathan's rulings to move and cleanse courtrooms and then allowing for a virtual juror may be a harbinger, although the Iranian banker's guilty verdict it resulted in has been walked away from amid controversy by the U.S. Attorney for Brady violations.

 Inner City Press hopes that, given public areas in courtrooms reduced by social distancing remodeling and rules, call-in lines remain including for trials. (One difficulty, as opposed to the very few trials with in-house live-feeds, will be knowing who is speaking). Judge Rakoff is right that forgoing oral arguments is a loss, not only for judge who want to ask questions but also journalists who want to report them to the public.

One innovation is forthcoming from the Central District of California: a deposition, albeit in the criminal case against Michael Avenati, made available live by phone to the public and press.

Inner City Press intends to "be" there. Watch this site, and and live-tweeted proceedings on this feed. 


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