In Re Special Proceedings, 842 F. Supp. 2d 232

Two motions to permanently seal Mr. Schuelke’s five-hundred-page Report were denied and unredacted copies were ordered for comment; the Report investigated prosecutorial misconduct in the Stevens case and its handling after trial.
The Stevens case drew intense public and media scrutiny; the Report concludes there was systematic concealment of exculpatory evidence harming Stevens’ defense.
The November 21, 2011 Order allowed review by DOJ and Stevens’ counsel and set a process for adding comments to be published with the Report.
DOJ advised no legal prohibition on disclosure of references in the Report to grand jury material or sealed items and did not assert privilege.
The Court held the First Amendment right of public access applies, weighed with North factors, and concluded disclosure is warranted; it allowed subject-attorneys to submit comments as addenda.
The Court’s final orders provide for public filing of the Report, release from confidentiality for subjects, and unsealing related pleadings on March 15, 2012.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the First Amendment right of access applies to Schuelke’s Report	Public has a compelling First Amendment right to monitor misconduct	Report is an investigative, grand-jury-like work not subject to access	Yes; right applies and favors disclosure
Whether the North framework supports public release	North factors weigh in favor of releasing the Report	North factors weigh against release	North factors overwhelmingly favor disclosure
Whether grand jury secrecy rules apply to Schuelke’s investigation	Rule 6(e) secrecy should apply	Rule 6(e) does not apply; secrecy not needed	Rule 6(e) does not apply; secrecy not mandated by the investigation
Whether the Court adequately protected against potential prejudice to subjects while releasing the Report	Release would prejudice subjects due to untested findings	Subjects already public; addenda accommodate objections	Court allowed subject-attorney comments/addenda and public filing

Press-Enterprise Co. v. Sup. Ct. of Cal., 464 U.S. 501 (U.S. 1984) (opening criminal proceedings must be justified by a compelling interest)
Press-Enterprise Co. v. Sup. Ct. of Cal., 478 U.S. 1 (U.S. 1986) (pretrial proceedings open unless compelling reasons to close)
Globe Newspaper Co. v. Sup. Ct. for Norfolk Cnty., 457 U.S. 596 (U.S. 1982) (media access to trials involving sensitive topics)
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (U.S. 1980) (open trials promote accountability and reduce misconduct)
Robinson v. Washington Post, 935 F.2d 282 (D.C. Cir. 1991) (First Amendment monitors prosecutorial/judicial misconduct)
In re North, 16 F.3d 1234 (D.C. Cir. 1994) (independent counsel reports released with appendices under North framework)
Cisneros, 426 F.3d 409 (D.C. Cir. 2005) (North factors applied to independent counsel reports)
Espy, 259 F.3d 725 (D.C. Cir. 2001) (North framework used for disclosure analysis)
In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004) (private attorney appointment for contempt proceedings where appropriate)