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By Matthew Russell Lee, Patreon Song Filing
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SDNY COURTHOUSE, March 13 – Does the right to access to Federal court proceedings extend to listen-only telephone lines, in the time of COVID and beyond? Should it?

 The question has been raised in the ongoing Honduras narco-trafficking case US v. Geovanny Fuentes, which Inner City Press has been covering in-person in the U.S. District Court for the Southern District of New York, where it is "in-house press."

   On the morning of March 13, Inner City Press filed a challenge to the cut-off of audio access to the US v. Fuentes trial, citing the First Amendment, COVID and real-world politics:

"Dear Judge Castel:    This concerns, in the above-captioned criminal case, your Order of March 12, 2021 (Docket Number 261). The Order would seem to terminate the call-in line through which people have been able to follow the trial, stating "[t]here is no right of access to a call-in conference line. It is merely a courtesy  when and if appropriate. The Court has endeavored to provide it where  appropriate." 

   While acknowledging this Court's efforts on access in such cases as US v. Virgil Griffith, 20-cr-15, responding to an Inner City Press application to unseal, and US v. Peter Bright, (same), on behalf of Inner City Press and in my personal capacity this is an application to maintain or resume the call-in line.   

 The First Amendment to the U.S. Constitution guarantees to the public a right of access to court proceedings. U.S. CONST. AMEND. I; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982). The public’s right of access is strongest when it comes to criminal proceedings such as these, which are matters of the “high[est] concern and importance to the people.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980) (plurality opinion).    Clearly, this long-standing right has to be affirmed differently in this time of COVID-19, in which in this case one prospective juror left on the first day, and another juror's possible exposure canceled proceedings in this case on March 12. In this context, even an additional overflow room in the courthouse is not enough.  

  That some individual, of the many interested inside and beyond the United States interested in this case may have recorded and republished online some of the audio should not eviscerate the right of access of all.

Beyond being akin to collective punishment, it may be important to consider the possibility that supporters of the Honduras political figures being named in the trial as taking bribes could record and republish precisely in order to trigger the cut-off of access, so that fewer learn of these alleged bribes. 

By US analogy, what if the Proud Boys uploaded audio of the detention proceedings now in the District for the District of Columbia, so that fewer (including Inner City Press) could call in and learn and report on what is said in these judicial proceedings?   

 This is a formal application that the call-in line for these proceedings be maintained or resumed."

Inner City Press after filing waiting nine hours, including this song, here, to report about it. Full letter on Inner City Press' DocumentCloud, here.

   When COVID hit in March 2020, nearly all proceedings went virtual, with call in numbers provided. Now as vaccinations (or herd immunity) become more prevalent, trials like US v. Fuentes are slowly re-starting.

  Still, from the beginning of the trial on March 9 SDNY District Judge P. Kevin Castel provided a call in line, along with the admonition that it should not be recorded and rebroadcast under threat of sanctions, including the possible loss of court press credentials.

   But how could this be policed against people who call in from far away, say, from Honduras?

  On March 11 cooperating witness Leonel Rivera testified about bribing among others the current president of Honduras, Juan Orlando Hernandez. Inner City Press from in the court live tweeted it, and in the afternoon went on Honduras television to describe it.

  Later in the day, someone posted the audio from the phone line. On March 12, Judge Castel issued an order ending the call-in line, stating that there is no Constitutional right to a call-in line. But might there be such a right, especially but not only in the time of COVID?

   Tellingly, also on March 12, the US v. Fuentes trial day was canceled by a juror through spouse potentially being exposed to COVID. So telling even those in New York City that they would have to come in and congregate in an overflow courtroom might be questioned, even as a matter of public health.

What is so bad, actually, about rebroadcast of the audio? If the audio can be heard in real time anywhere, what is the problem with its being re-listened to on delay? Is it only to make the (expensive) written transcript the only record of the proceeding?

  Inner City Press itself obeys all existing rules and is grateful for the additional access as in-house media (particularly since it is banned from covering the UN, which now Constitutional rights such as the First Amendment exist).

  But others have rights too - including journalists and regular citizens of Honduras. If the SDNY prosecutors are going to exercises essentially universal jurisdiction for any wire transfer that passes through lower Manhattan, how ever briefly, they should not oppose access to their trials by those impacted, for better and worse.

Judge Castel is a good judge, in Inner City Press' experience. When petitioned he has ordered the unsealing of certain court documents, in a North Korea crypto-currency conference case and the tech / child sex sentencing of Peter Bright former of ArsTechnica, both of which Inner City Press covered and requested. And Judge Castel is certainly in the mainstream in his March 12 psoition. But should it be rethought? Is there a right? Should there be? Watch this site.

 The Honduras narco-trafficking trial of US v. Geovanny Fuentes Ramirez began on the morning of March 9.  Inner City Press was there.

Inner City Press live tweeted the first opening argument here. And then the first witness, DEA Agent Brian Fairbanks, to the end of the day, here.

 Geovanny Fuentes was sitting at the defense table, with two U.S. Marshals citing six feet behind him. The prosecutors were the table in front, closest to the judge.

U.S. District Court for the Southern District of New York Judge P. Kevin Castel has been asked about docuemnts still sealed in the record, and not yet provided. On the afternoon of March 10, more of the first cooperating witness: Leonel Rivera. Inner City Press live tweeted the morning here and the afternoon here.

 On the morning of March 11, Leonel Rivera testified that los Cachiros bribed JOH, and that the defendant told him he had twice paid JOH is cash. Inner City Press live tweeted it, including:

AUSA: Who is this?

Leonel Rivera: Juan Orlando Hernandez, the president.

AUSA: Did the Cachiros bribe Juan Orlando Hernandez with drug money?

Leonel Rivera: Yes. [Si, senior] With $250,000.

AUSA: How was it delivered?

Leo Rivera: In cash. To his sister. USA: What was the bribe for?

Leo Rivera: So that we would not be arrested or extradited. AUSA: Do you recognize this person?

Leo Rivera: Tony Hernandez, the president's brother. AUSA: Gov't offers Exhibit 113. Defense: No objection.

AUSA: What did you give Tony Hernandez?  Leo Rivera: I gave him $50,000 in cash. In Tegucigalpa. In a restaurant named Denny's.

The case is US v. Diaz, 15-cr-379 (Castel).

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