MARIA E. STRATTON
Federal Public Defender
CARLTON F. GUNN
Chief Deputy Federal Public Defender
EVAN A. JENNESS
Deputy Federal Public Defender
Suite 1503, United States Courthouse
312 North Spring Street
Los Angeles, California 90012-4758
Telephone (213) 894-7336
Attorneys for Defendant
xxxxxxxxxxxxxxxxxxx
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
xxxxxxxxxxxxxx, et al.,
Defendants.
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NO. CR xxxxxxxxxxxxxx
MEMORANDUM OF POINTS AND AUTHORITIES OF
xxxxxxxxxx RE: IMPROPRIETY OF PROSECUTION'S REPEATED UNDER SEAL
FILINGS
Defendant xxxxxxxxxxxxx, through his attorneys of record, Deputy Federal Public Defenders Evan A. Jenness and Carlton F. Gunn, hereby files its memorandum of points and authorities re: impropriety of prosecution's repeated under seal filings.
This is based on the accompanying Memorandum of Points and Authorities, all of the files and records in this case, and such further evidence and argument as may be adduced at any hearing on this motion.
Respectfully submitted,
L:\USERS\MJ\FILES\motions seminar\pro.precSeal
INTRODUCTION
On no less than three separate recent occasions, (1) the prosecution has filed documents under seal and in camera in this case. While the defense obviously has no ability to evaluate the propriety of these particular filings, the defense is seriously concerned about this pervasive litigation which is being concealed from the accuseds. Such litigation runs counter to the most fundamental principles of our criminal justice system, and poses a serious threat to the fair trial and other rights of those accused of crimes. With respect to the instant filings, Patrick xxxxxxxx seeks the disclosure of the material submitted under seal and in camera, subject to whatever reasonable protective order(s) the Court may deem proper.
II.
ARGUMENT
It is well-established that ex parte
communications are an "extraordinary deviation from the customary safeguards provided
by the Confrontation Clause and the adversary system," (2)
and are "clearly at odds with the principles of the open, adversarial system of
justice guaranteed by our Constitution" (3). The
prosecution's repeated attempts to litigate behind closed doors strikes at the heart of
the fundamental constitutional due process confrontation and fair trial rights of Patrick
xxxxxxxx must not be condoned.
Ironically, the offensive nature of under seal
filings to fundamental constitutional principles has been argued the prosecution itself
when faced with a private party's submission of materials under seal.
In Northrop Corp. v. United States, Nos.
CA 90-70062 (9th Cir.) & CR 89-303(A)-PAR (see
Exhibit "A" attached), The prosecution itself has argued that under seal
filings are "antithetical to the adversarial process and appear[] to . . . attempt to
influence the court's decision without giving the government an opportunity to respond to
the factual allegations raised." In advancing this position, the prosecution quoted
(now Ninth Circuit) Judge Pamela Rymer's sage opinion in In re Intermagnetics America, Inc., 101 B.R.
191, 192 (C.D. Cal. 1989): "ex parte proceedings pose a threat to the adversary
system . . . . ex parte contacts with the court pose ethical problems for both the bench
and the bar." (copy attached). (4) In asking the Ninth
Circuit to strike or unseal materials filed under
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