| As
Avenatti Seeks To Seal Info in SDNY Stormy
Case Federal Defenders Ignore Double
Standard
By Matthew
Russell Lee, Patreon
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SDNY COURTHOUSE,
Sept 2 – 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.
On August
27, Inner City Press filed a
formal request that documents
in the case not be sealed,
full filing on Patreon here:
"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.
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.
Respectfully
submitted, /s/ Matthew Russell
Lee, Inner City Press."
On August
28 Judge Furman entered an
order: "The Court received the
attached communication from
Matthew Lee of Inner City
Press “seeking leave to be
heard and for the unsealing of
the CJA Form 23, affidavit,
and all associated documents”
relating to this litigation.
To the extent that Mr. Lee
(who is admitted to the bar of
the Southern District of New
York) seeks leave to be heard,
his application is GRANTED.
The Court reserves judgment on
the question of whether
Defendant’s CJA Form 23 and
related documents should be
unsealed. SO ORDERED. Dated:
August 28, 2020 New York, New
York JESSE M. FURMAN." Docket
No. 85, on Inner City Press'
DocumentCloud, here.
Now on
September 2 Federal Defenders,
rather than attempt to explain
why they routinely divulge and
put in the public record the
financial information of less
high profile and lower income
clients, stating in
Magistrates Court exactly how
much their clients make and
where they and even their
spouses work, has written in
this: "The defense
acknowledges that the Court
granted Matthew Lee, a
representative of “Inner City
Press,” leave to be heard on
this matter. The defense
requests leave to respond to
Mr. Lee one week from the
timely filing of any
substantive brief or letter.
For now, it bears emphasizing
that the Court’s measures
requiring the Federal
Defenders to keep an accurate
record of the hours spent on
Mr. Avenatti’s defense, and
also requiring Mr. Avenatti to
regularly update the Court on
his finances, are sufficient
to protect the public fisc and
to ensure that funds for
court-appointed counsel are
being properly spent. Further,
“neither the First Amendment
nor the common law provides a
right of access to financial
documents submitted with an
initial application to
demonstrate a defendant’s
eligibility for CJA
assistance.” In re Boston
Herald, Inc., 321 F.3d 174,
191 (1st Cir. 2003). And “even
if there were a common law
presumption of access, then it
would be outweighed here … by
[Avenatti’s] countervailing
privacy interests” and rights
under the Fifth and Sixth
Amendments. Id." Full
letter on Patreon here.
It is UNacceptable -- the
public's and press' right of
access is not limited to the
public fisc, it is based on
the FIRST Amendment.
We'll have more on this, once
the situation becomes clearer.
And later the US
Attorney's Office said, " in
light of the presumption of
openness in criminal
proceedings and the approach
favored by the Second Circuit,
the defendant has failed to
provide a legally sufficient
basis for wholesale and
indefinite sealing of the CJA
23 Form and supporting
affidavit." Full letter on
Patreon here.
Now we await Avenatti's / his
Federal Defenders' reply.
Watch this site.
This case is US v. Avenatti, 19-cr-374
(Furman).
***
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