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EDNY COURTHOUSE, August 16 – 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, who docketed it ("Letter as to Tyreik Jackson addressed to Judge Eric R. Komitee from Matthew Russell Lee, Inner City Press, dated August 12, 2022, in opposition to filing under seal of certain portions of the Government's sentencing submission").

Judge Komitee asked the EDNY US Attorney's Office to respond by August 16 at 5 pm. That Office did respond - but misquoted itself, and made assumptions. Response here.

Inner City Press immediately replied:

"Dear Judge Komitee:     Thank you for docketing Inner City Press' August 12, 2022 letter opposing the sealing of a 40 minute video exhibit to the US' sentencing memo in the above-captioned case, and requesting that the government respond by today at 5 pm.    This is Inner City Press' reply.

To be clear, contrary to the Government's assumption Inner City Press does not oppose its redactions, we have not been able to see any of the video, so there is no way to agree to redactions not yet done. Both prior to, and since, our August 12 submission we have asked EDNY spokesman John Marzulli about the video and proposed redaction, and about what still seems to be an untransparent policy. (Also, no answers on US v. Angwang, 20-442 (EK)).  

The Government today misquotes its own August 1, 2022 letter, claiming it said it "does not contest that “a party’s sentencing submission is a judicial document.” But simply look at the top of page 2, here, which continues to state "The government does contest that 'a party’s sentencing submission is a judicial document.'" Here

   While not unsympathetic to the stated safety rationale, the basis for redacting - would it be, pixelating? - "Adult Woman" is not clear. Not having seen any of the video, nor gotten any response to reasonable requests and questions to the US Attorney's Office spokesman, Inner City Press remains opposed to the sealing and / or redactions.

On the evening of August 17, Judge Komitee ruled: " ORDER granting in part and denying in part [105] Motion to Seal as to Tyreik Jackson (1) -- The court is in receipt of the Government's motion to seal Government Exhibit 16 [105] and the submissions of a media outlet, the Inner City Press, in opposition thereto [108] [111]. The Government's motion to seal is granted in part and denied in part. The Government shall be permitted to obscure the faces of the Victim, the Adult Woman, the Child, and the other unidentified individuals in the video. By 5:00 p.m. on August 19, 2022, the Government shall file GX 16 with the Court, redacted accordingly. Ordered by Judge Eric R. Komitee on 8/17/2022."  Inner City Press will be asking EDNY Spokesman Marzulli for the video. Watch this site.

Inner City Press on the morning of August 15 again asked EDNY US Attorney Breon Peace's spokesman John Marzulli: "This is a Press request for, again, the basis for EDNY US Attorney arguing that sentencing memos are not judicial documents... There will be more questions about US v. Angwang, a case Inner City Press has reported on since it's beginning - this is a request to be sent any and all information your Office sends out about this case and proceedings." Still not answered.

From the opposition: "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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