| EDNY Seals
Video Arguing Sentencing Memo Is Not A
Judicial Document So Press Opposition
By Matthew
Russell Lee, Patreon Maxwell
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EDNY COURTHOUSE,
August 12 – Seeking a lengthy
sentence for a defendant, the
U.S. Attorney's Office for the
Eastern District of New York
on August 11, 2021 wrote to
EDNY Judge Eric C. Komitee to
seal a 40 minute video,
stating that "the government
does contest that 'a party’s
sentencing submission is a
judicial document.'"
To be a
judicial document and
presumptively available to the
press and public, all that is
needed is that it impacts or
could impact a judge's
decision. So this DOJ argument
was ludicrous, and a negative
precedent for open
courts.
Inner City
Press filed opposition with
Judge Komitee, including:
"In the above
captioned criminal case,
Assistant US Attorneys Emily
J. Dean and Benjamin Weintraub
in their August 11, 2022
submission (Dkt No. 105)
requesting the sealing in full
of a 40 minute video and state
that "the government does
contest that 'a party’s
sentencing submission is a
judicial document.'"
Inner City Press opposes
both. It is
extraordinary to argue that a
sentencing memo, intended to
influence the Court's decision
on incarceration of a
defendant, is not a judicial
document.
Inner City
Press has sought clarification
of this stated policy of the
US Attorney for the EDNY from
his spokesman John Marzulli,
without any response. (Mr.
Marzulli has told Inner City
Press, You can follow us
through the press releases on
our website, of which this
entire week there have been
precisely two, none about this
case or
policy).
The Second
Circuit has observed that a
document is a judicial
document “not only if the
judge actually relied upon it,
but also if ‘the judge should
have considered or relied upon
[it], but did not.” Bernstein
v. Bernstein Litowitz Berger
& Grossmann LLP, 814 F.3d
132, 140 n.3 (2d Cir. 2016)
(citing Lugosch v. Pyramid Co.
of Onondaga, 435 F.3d 110, 119
(2d Cir. 2006)...
Please act on, and docket,
this request, as soon as
possible before the
sentencing. Similar Inner City
Press requests are routinely
docketed in the SDNY,
regardless of not being
submitted on ECF. Inner City
Press and the undersigned,
while admitted in the SDNY,
are not parties to this
criminal case, nor filers in
the EDNY." Full filing on
Inner City Press'
DocumentCloud,
here.
Inner City Press cc-ed both
prosecutors, the named EDNY
spokesman (to be fair), and
defense counsel, who
separately wrote in suggesting
a two minute redaction from
the video. After Inner City
Press' opposition, the EDNY
prosecutors quickly wrote in
that they agree with the
defense. But that does not
resolve it, the presumptive
public nature of the
sentencing submission, much
less the outrageous EDNY
argument that sentencing memos
are not judicial documents.
Watch this site.
Ongoing
disclosure: This was prepared
without any assistance or
answers from Eastern District
of New York US Attorney's
Office spokesman John
Marzulli, ex-Daily
News, who without
hearing or appeal on August
8, 2022 decreed that
said "his" / EDNY's
publicly-funded information
will henceforth go to some
(including outside of New
York) but not others, or
other, like NYC-based Inner
City Press. Requests for
reconsideration have been
submitted, so far without
response. We'll have more on
this.
***
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