Monday, January 4th, 2010

Summary Summary

United States v. Doe, No. 08-4064-cr (2d Cir. December 14, 2009), looks the First Amendment implications of a defendant’s request to seal his case. At sentencing, Doe had asked for the total and permanent sealing of his sentencing transcript. The court denied the request, and Doe appealed. After the government agreed that the decision should be reversed, the court appointed amicus counsel to defend the district court’s ruling. The appellate court noted that there were no serious First Amendment concerns, since the order concerned the denial of a sealing request. Moreover, the district court’s analysis of the issue correctly treated the public’s right of access to sentencing proceedings as qualified, and not absolute. The lower court also correctly recognized that the right of public access to criminal proceedings is presumptive, and that the party seeking to overcome the presumption bears a heavy burden, one that increases the more extensive the closure sought. Since Doe sought the total and permanent sealing of the record, his burden was “heavy indeed” and his reasons for seeking it were insufficient to support a permanent and total denial of public access. Accordingly, the court affirmed the order denying the request for a total and permanent sealing of the record, and remanded to give him an opportunity to apply for a partial and/or non-permanent sealing.

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