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Dzhokhar Tsarnaev Docket: Missing Entries

Yesterday, the Judge in the Boston bombing case of defendant Dzokhar Tsarnaev issued an order denying a motion filed under seal in which the defense asked to take periodic photographs of Dzhokhar (Jahar) at Devens Medical Facility to be able to document his evolving physical and emotional state. The court declined to interfere with BOP policy which disallows visitors to have cameras on security grounds. It ruled that the staff at the prison can take the photos which will be shared with both parties (not just the defense.) Here is the Court's order, referencing the motion which was filed under seal as Docket Number 29. The order also refers to a response the Government filed under seal.

Looking at the docket, it appears that there have been many motions filed under seal, because so many numbers are missing. Instead of listing the docket number with a descriptive notation like "Motion to Suppress, Sealed, by Defendant", there's a big nothing. See below: [More..]

This is what the docket looks like:

The Massachusetts court policy on sealed documents differs from that of at least some other federal district courts. Here is a portion of the docket in the Chicago case of David Headley and Tahawwur Rana. There's a listing for every docket entry with a description of what was filed, including documents filed under seal. The sealed document isn't accessible, but at least there is the transparency of recognizing that something was filed and by who.

I'm surprised the media isn't objecting to this policy. In Colorado, every motion sought to be filed under restriction (the court no longer uses the word "sealed") is listed on the court's home page and the public is given three days to object.

It appears that in Mass., the clerk doesn't even put the fact of a sealed pleading on the docket. So if Tsarnaev has filed a motion to suppress his statements made at the hospital, there's no way for the public to know that the motion was filed if the defense seeks to seal it. It's one thing to keep the contents of the motion sealed, I think it's another to keep secret the filing of the motion.

The only reason the public knows about the defense request to take the photographs is because the Judge in her order says while the motion and the Government's response were filed under seal, she sees no reason for her order to be sealed. Had she felt differently, and decided to enter her order under seal, there would be no way to know about it.

The Mass. rule on filing sealed or "impounded" documents is 7.2. From the court's Attorney Guidebook:

SEALED OR IMPOUNDED DOCUMENTS XXXXX
SEALED AND/OR IMPOUNDED DOCUMENTS MAY NOT BE FILED ELECTRONICALLY.

Qui tam cases and actions involving grand jury proceedings are automatically sealed, by statute.
Attorneys wishing to file any other cases or documents shall follow the provisions of Local Rule 7.2.

Motions to seal must meet the requirements of Local Rule 7.2. The court will not enter blanket impoundment orders. A motion for impoundment or motion to seal shall be presented each time a document is to be filed under seal.

By contrast, Colorado federal court rule 7.2 says:

D.C.COLO.LCivR 7.2 PUBLIC ACCESS TO DOCUMENTS AND PROCEEDINGS (also applicable to criminal cases)

A. Policy. The public shall have access to all documents filed with the court and all court proceedings, unless restricted by court order or as provided in Section D of this rule.

B. Motions to Restrict Access. Any motion to restrict public access will be open to public inspection and must:

1. Identify the document or the proceeding for which restriction is sought;

2. Address the interest to be protected and why such interest outweighs the presumption of public access (stipulations between the parties or stipulated protective orders with regard to discovery, alone, are insufficient to justify restricted access);

3. Identify a clearly defined and serious injury that would result if access is not restricted;

4. Explain why no alternative to restricted access is practicable or why only restricted access will adequately protect the interest in question (e.g redaction, summarization, restricted access to exhibits or portions of exhibits); and

5. Identify the restriction level sought (i.e., Level 1 = access limited to the parties and the court; Level 2 = access limited to the filing party and the court; Level 3 = access limited to the court).

C. Public Notice of Motions to Restrict Access; Objections. Notice of the filing of such motion will be posted on the court’s website on the court business day following the filing of the motion. Any person may file an objection to the motion to restrict access within three court business days after posting. Absent exigent circumstances, no ruling on a motion to restrict access will be made until the time for objection has passed. The absence of objection shall not, alone, result in the granting of the motion.

D. Filing Restricted Documents. Any document that is the subject of a motion to restrict access may be filed as a restricted document, and will be subject to restriction until the motion is determined by the court. If a document is filed as a restricted document without an accompanying motion to restrict access, it will retain a Level 1 restriction for fourteen days. If no motion to restrict access is filed within such time period, the access restriction will expire and the document will be open to public inspection.

Apparently, in Mass., the lawyers file motions to seal and the pleading sought to be sealed by paper directly with the clerk, and while the clerk gives them a sequential docket number, it doesn't register them on the electronic docket (as opposed to including the docket number and description on the electronic docket and making the document itself inaccessible.)

The public is not going to get true sense of how the case is being prosecuted and defended with a docket missing 22 entries to date. I think this is bad policy. It's one thing to seal the actual motions and orders, it's another to seal the fact that a sealed motion was filed and/or an order entered granting or denying the request to seal. I wonder how many federal districts have sealing policies similar to Mass.

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