United States v. Connolly

LYNCH, Circuit Judge. Jr.,

John Connolly, J. the defendant in a highly publicized trial, applied un- (CJA), der the Criminal Justice Act (2000), U.S.C. government 3006A for funding portion attorneys’ of his fees expenses. and legal Connolly in- had formed the court that already he was debt to the counsel he had previously re- tained, could longer pay no afford to legal his bills. He submitted affi- davits additional document sum- marizing legal his total debt. The court granted and, him CJA assistance re- motions, sponse to placed his the docu- ments he had submitted under seal. After conviction, Connolly’s Herald, the Boston one of major daily two newspa- Boston’s pers, sought to intervene in the case and to documents, unseal these financial arguing for the District District Court the U.S. them under of access that it had appealed his con- has He Massachusetts. the com- the First both pending viction, appeal remains and that magis- A Connolly opposed. law. mon separately. but intervention allowed judge trate unseal, the dis- 2002, and 5, motion denied the on March hearing pretrial At a then The Herald affirmed. the district court informed attorney trict Connolly’s and a interlocutory appeal counsel owed defense Connolly an that filed both court this court with fees. The unpaid legal of mandamus a writ petition for substantial complex case that, in the with a trial noted court. later, substi- only months begin two due to our appeals, court of No federal To not feasible. was of counsel tution there whether has considered knowledge, possibility court raised delay, avoid category narrow access to the of is appointed and attorney could be that the those submit- at issue here: of documents Connolly if dem- could paid the CJA under finan- to show by a criminal defendant ted applies The CJA eligibility. his onstrate We conclude for CJA funds. cial unable financially person is] “any [who this access right of is no that there representation.” 18 adequate to obtain either under of documents category 3006A(a). U.S.C. law. the common First later, an Connolly submitted days Two pre- law a common if there were Even assistance application CJA access, no was abuse sumption of there of Pre-Trial Services. court’s Office here. We denying discretion magistrate to a was referred application deny manda- and the district court affirm lawyer Connolly’s appointed judge, who mus. on a written order the CJA in under that al- appears stating, “[I]t March I. number possesses a though the defendant was agent FBI who a former Connolly is assets, the total of these of substantial relationships in his impropriety accused of of his current liabil- less than half is assets orga informants, including alleged liabilities, order Most these ities.” “Whi such as James figures nized crime Connolly had said, legal bills were More Stephen Flemmi. tey” Bulger fund- order limited already incurred. The chapters of detail about earlier provided services only legal ing cover v. found in United States saga can be first informed when counsel March after (1st Cir.2000); Flemmi, Unit F.3d 78 Connolly’s problems, the court Salemme, F.Supp.2d ed v. court re- recommended and it (D.Mass.1999); Sa States v. at the close Connolly’s eligibility evaluate (D.Mass.1997). lemme, F.Supp. 343 rate for compensation cáse. The relationships Connolly’s about Information be- significantly is CJA-appointed counsel govern reluctant extracted from a was attor- rates for prevailing private low the judge who heard by persistent shortly trial May ment As of neys in Boston. Connolly’s cases. an began, it was Connolly’s the earlier trial $90 before hour garnered hour, trial extensive it was prosecution and then $75 and before for work public interest nation an hour coverage work and $55 media for in-court area, a waiv- There is outside court. wide, performed in the Boston where especially $5,200 lawyer per the FBI. On total employed by able maximum had he been See 18 U.S.C.A. felony case. 28, 2002, for a Connolly was convicted May 3006A(d)(2)-(3)(West Supp.2002). §§ justice in and obstruction racketeering magistrate judge granted parties also Con- urge there jurisdiction. See nolly’s motions to seal three documents S6, BIW Deceived Local Indus. Union that he had submitted to his demonstrate Workers, Marine & Shipbuilding eligibility. The orders to seal these Cir.1997). To be sure of documents were issued without written prompt review, receiving pru- Herald findings; objection there was no to them dently request made its for access through at that time. Two of the three sealed two procedural means, different each rais- original documents are an and an amended ing the same substantive issues. On Au- Connolly’s version of completed Form gust 2002, the Herald filed an interloc- (the forms”), “CJA a standard “financial utory appeal from the district July court’s affidavit” signed under penalty of perjury. order; 21, 29 on October it a petition filed A copy blank appended of Form 23 is for a writ of mandamus. ordered We opinion. It requires comprehensive two cases consolidated and received brief- data, including employment in- ing and oral argument from Herald come of the defendant and his or her Connolly. and income, spouse; cash, all other prop- and erty; identification of the defendant’s de- appeals An court may exercise its pendents; obligations, debts, and all and power advisory mandamus under All monthly document, bills. The third sub- when, Act, § Writs (2000), 28 U.S.C. 1651 response mitted in question to a from the petition “presents an great issue impor magistrate judge, states the total of Con- novelty, tance and and one the resolution nolly’s outstanding legal fees from the date of which will likely jurists, aid indictment, par other 22, of his 1999, December ties, 28, lawyers.” through In re February Supe Justices magis- judge’s trate rior Dep’t Court, written order Court appointing Mass. Trial 218 Connolly’s 11, (1st under lawyer Cir.2000). the CJA has al- F.3d 15 This court has ways public. remained found advisory type of power mandamus present in at least two arising cases from 7, 2002,

On June shortly after Connolly’s similar procedural settings, conviction, where media the Herald filed a motion to outlets challenged placed intervene and limitations to vacate the on sealing orders the three documents. their Connolly opposed access to proceeding or document the motion. The district court referred a district court. See In re Providence the matter to the same magistrate judge, Co., (1st Journal Cir.2002); 9 who allowed the Herald to intervene. In a (In United States v. Hurley Re Globe written order of June 2002 denied he Co.), (1st Newspaper 90 Cir. the Herald’s motion to vacate sealing 1990). The conditions for mandamus re order. States v. Connolly, 206 similarly view are satisfied here. F.Supp.2d 187, (D.Mass.2002). 188 On 29, 2002, July the district court overruled The Herald argues also that we objections the Herald’s magistrate jurisdiction over its interlocutory ap judge’s order. peal the collateral under doctrine. order Cohen v. Carp., Loan Indus. Beneficial II. 541, 546, 93 L.Ed. A. Appellate Jurisdiction (1949). 1528 This court recently open left question federal court satisfy must of whether ap itself the doctrine A jurisdiction case, of its over a if plied even all in similar circumstances. See Provi- “the cost of consider should that the court Journal, find that F.3d at 9. We dence dependents and his juris person providing for The standards here. applies it life.” VII Admin. “separa order are with the necessities collateral diction over Courts, Judiciary importance.” Guide finality, urgency, Office U.S. bility, (1st (2001) § F.2d 2.04 Corp., 637 Procedures Inv. Policies and In re Cont’l are met Cir.1980). “Inability to these conditions Guide].1 All of AO. [hereinafter Herald’s concerning the dispute or desti indigence here: not the same pay is easily separated States, to documents access v. United tution.” Museitef case; underlying (8th Cir.1997); from 3A C.A. see F.3d Her disposes of the denying access order Procedure Practice & Wright, Federal finality; right with claim an ald’s (2d (defining Supp.2002) & ed. 1982 information would value the news “pay inability eligibility as defendant’s interlocutory time, lending the over decline sub without adequate representation v. Romero-Barcelo urgency, see Soto appeal family”). his hardship to himself or stantial ( Co.), Star re San Juan information further may request The court pres Cir.1981); Herald and the court from the defendant or verification question. legal important unsettled ents an in officers, or other prosecution is a collateral denying order The relevant may present also parties terested order, jurisdiction over have and we in its deter assist the court information to manda well as the interlocutory appeal as § A. 2.03. VII O. Guide mination. See petition. mus engaged in judge here magistrate The by requesting and factfinding, further such and Disclosure B. The CJA Connolly’s legal summary receiving the merits, begin we to the moving Before prior legal found that those He then bills. about the CJA context general with some more than were and other liabilities bills analysis disclosure, informs the which assets, that Connol- Connolly’s double that follows. appointment of counsel eligible for ly was government provides for The CJA possible to Although it is the CJA. under services and related attorneys for pay for le- reimbursement provide retroactive below market (usually well specified rates applica- the CJA before gal bills incurred rates) defen eligible on behalf submitted, 18 U.S.C. see tion was anyone who applies to The statute dants. 3006A(b), allowed explicitly the order § adequate “financially unable obtain after provided only for services payments 3006A(a). § representation.” 18 U.S.C. March by the Adminis promulgated Guidelines recommended judge magistrate The also States Courts of the United trative Office at the close court consider that the district this terse stat slightly on have elaborated financial Connolly’s case whether of the definition, applies that it by saying utory pro- improved. had situation re whose “net a defendant “[wjhenever the United States vides that to en and income insufficient sources funds court finds that judge or magistrate counsel” qualified him to obtain able Amended, As Justice Act Criminal Massachusetts judges of the District of 1. The 3006A, (1993) (stating § § DÍ.B plan U.S.C. which looks adopted a local of Massachu- in the District binding. See 18 U.S.C. officers the A.O. Guide comply provisions” with the setts "shall 3006A(a) court to (requiring each district § concerning implementation of A.O. Guide Court for the States Dist. adopt plan); United CJA). Mass., Implementing Plan Dist. for 903(a) payment (1996).2 § are available for from or on be- None of the three person representation, half of a furnished documents at issue here type includes that it may person authorize or direct” that the of data. The CJA forms contain only per- expended reimburse the CJA on funds his sonal financial information about the Con- or legal her defense. 18 U.S.C. nolly family. The sealed statement of le- 3006A(f); Merric, see United gal fees Connolly’s previous summarizes (1st Cir.1999) F.3d (allowing private bills, legal were which specifically reimbursement of CJA funds as condition excluded from CJA coverage. Nothing in supervised release where defendant has the statute states types whether these Fraza, pay); means to States v. public. documents should be Cir.1997) (citing The A.O. Guide general sets out a rule v. Santarpio, United States gives disclosure and courts discretion to (1st Cir.1977)) (court must hold hear- particular override it in cases: ing determining when whether defendant funds). has means to now reimburse CJA Generally, such information which is not guidelines rely on opportunity otherwise routinely pub- available to the that, reimbursement to recommend initial- lic should be made available.... ly, “[a]ny person’s doubts as to a Upon request, upon the court’s own favor; be resolved in should his erroneous motion, pertaining to activi- eligibility may determinations of cor- be ties under the CJA and related statutes rected at a later time.” VII AO. Guide maintained in files, open clerk’s § 2.04. Thus a grant Connolly’s decision to which are available generally pub- trial, before application and revisit the is- lic, may judicially placed be under seal if sue afterwards there were doubts as to or otherwise safeguarded until after all eligibility, his an ordinary application was judicial proceedings, including appeals, of relevant law and rules. in the case are completed and for such The statute itself is about silent disclo- time thereafter as the ap- court deems sure of demonstrating documents a defen- propriate. eligibility dant’s financial for CJA status. require parte The Act does ex hearings for 5.01(A) (2000). § VII A.O. Guide The determinations, certain requests such guidelines specify that situations would expert fund services. See 18 U.S.C. justify departure rule, general from the 3006A(e)(l); Abreu, § United v. States 202 including those where disclosure “could (1st 386, 387, Cir.2000). F.3d 389 Access reasonably expected unduly be intrude course, requests may, to such of disclose upon the privacy attorneys of or defen- strategy defense to the prosecution, and so dants.” Id. do not involve the same interests as the hand, magistrate judge quoted pas- these issue before us. On other Con- sages and gress provision weighed competing added a new to the CJA in interests requiring discretion, involved. In 1996 disclosure of certain basic the exercise of his paid data about the he lawyers appropriate amounts concluded that it was Act, here, exceptions. under the seal the specified documents issue because § 3006A(d)(4); 18 U.S.C. Pub.L. No. 104- “unduly disclosure would intrude” on the (1997). provision § 2. The details of have since been 308 amendment Neither affected 106-113, twice. concerning eligibility amended No. Pub.L. silence See docu- A, 308(a) (1999); 105-119, Apx. Pub.L. No. ments. 180 Office, by the generated Administrative family. He Connolly and his of with the Office Connolly filed them at least be sealed they would

ruled that rather than with Pre-Trial Services appeals. We his Connolly until exhausted These judge. court or the clerk of the to be a sum- this order not consider do a conclusion that the CJA support facts magistrate judge mary dismissal. essentially are not documents eligibility consideration due the factors with weighed judicial in character. embodied disclosure presumption The court thus in the A.O. Guide. and the common the constitutional Both interest, which exists public’s weighed applied only to access have rights law issue, as well as the of this both sides on Dia, Inc. v. El judicial documents. See interest. defendant’s (1st Colon, F.2d Hernandez Cir.1992) of First (discussing scope rais- description process This the CJA access and its limita- First, it calls into important two issues. es activities); Fed. Trade tion to eligibility docu- whether the CJA question Mgmt. Corp., Fin. v. Standard Comm’n at all. “Not judicial documents ments are Cir.1987) (“Those are consid- filed with court all documents ” adju- which no role play ‘judicial ered documents.’ beyond ... lie reach” process dication (10th Gonzales, There is no presumption). common law Cir.1998). Congress Connolly argues right of access to general constitutional delegated the task easily could posses- in the government’s information a defendant’s determining KQED, Inc., Houchins v. sion. See non-judicial or to an aid to a officer 1, 15, L.Ed.2d 553 U.S. Indeed, states use agency. executive (“Neither (1978) opinion) (plurality govern their many different structures Fourteenth Amendment nor First of which some indigent programs, defense of access to Amendment mandates branch within the executive are housed of in- information or sources government independent agen- of which are and some government’s con- within the formation Spangenberg R.L. & generally cies. See Rush, 1, 17, trol.”); Zemel v. Beeman, Systems Indigent M.L. Defense (1965) (“The 1271, 14 L.Ed.2d S.Ct. States, Contemp. Law & in the United carry speak publish and does not right to 31, Probs., at 37-41.3 Cur- Winter gather with it the unrestrained delegates also practice rent under the CJA information.”). determining eligi- many responsibilities eligibility that the CJA non-judicial officers. See VII A.O. A determination bility to 2.03(B) judicial not desig- documents are (allowing § court to Guide claims alto- dispose of the Herald’s “obtain or would nate other court employees Franklin, D.A. eligi- gether. See M.A. verify upon facts which CJA [the made”). Cate, Anderson, Media Law F.H. Mass The & bility] determination is to be 2000) (“One (6th question that ed. assistance are apply forms used to CJA for level, (arguing for inde- at 69-75 also been Winter 3. At the federal there have CJA). But pendent to administer judges structure suggestions role for of a diminished 2.03(A) ("The See, § determina- e.g., VII A.O. Guide Gon- see the administration of the CJA. zales, ("We eligibility the Criminal Justice tion of under n. 11 note that 150 F.3d at 1255 by performed a judicial to be replacement of Act is function support there much for the is magistrate making ap- judge after federal judges independent adminis- with an [federal] concerning person's board....”); inquiries Cleary, propriate Federal De- trative J.J. condition.”). Probs., Contemp. Systems, Law & fender (1982). through many runs of these cases is The Court recognized there that judicial the materials at issue are protecting whether a minor’s well-being was a com- they If interest, records. the court decides pelling but found that this inter- not, appears there to be no of access justify mandatory est “does not closure common law or the First under either the rule, for it is clear that the circumstances Amendment.”). think that While we these particular may case signif- affect the documents, judicial we hesitate to are not icance of the interest.” Id. at the issue here on that basis alone. decide 2613; see also id. 102 S.Ct. judicial Disentangling judges’ and adminis- (“Massa- (O’Connor, J., concurring) tricky, trative roles can be as seen other chusetts has demonstrated no interest areas, judicial immunity. such absolute weighty enough justify application of its White, 219, 227, See Forrester v. cases, automatic bar to all even those in (1988) (“This 98 L.Ed.2d 555 victim, defendant, which the prosecu- never undertaken to articulate a Court has trial.”). objection tor have no an open precise general definition of the class Similarly, interpreted this court has a fed- [judicial] immunity. of acts entitled to authorize, eral law to but require, not clos- cases, however, an suggest decided intelli- ing juvenile certain proceedings, and de- judicial gible distinction between acts and termined that there was therefore no need ... judges administrative functions that to reach the question. constitutional See may assigned by on occasion be law to Juveniles, v. Three perform.”); Chemerinsky, E. Federal Jur- (1st Cir.1995). 86, 90-92 (3d 1999) ed. (“Although isdiction 8.6 process handling judicial the distinction between a function Connolly’s documents such as is not a clear, administrative one is often Rather, denying blanket rule it access. many there are instances in which the strikes a balance under which disclosure is problemat- characterization of the task is rule, presumed or default but one ic.”). rely do While we on this as the may displace by making which a court decision, basis for our we note that case-specific determination. Provi Cf. process determining administrative (“Safe Journal, dence 293 F.3d at 12 eligibility is far removed from the core of prejudice guards against imple can be function. case-specific mented on a basis. Where a by A second issue raised review particularized restricting public need for the distinction between the structure laid exists, legal access to memoranda out in the AO. Guide and the blanket need can tailoring be addressed prohibitions many found other cases relief.”); appropriate Globe Newspaper Co. concerning rights constitutional of access. 497, v. 868 F.2d 506-07 Cir. Pokaski Courts have disfavored blanket rules 1989) in (rejecting blanket rule favor of which failed to account for individual cir- case-by-case tailoring). magistrate The Supreme empha- cumstances. The Court in judge acted accordance with this frame overturned, point sized this when it on work. grounds, constitutional a Massachusetts If a First of right Amendment automatically required law which the clos- case, applies to then it ing of a trial this renders age when victim under the in eighteen of entire discretion-based framework concerning testified certain specified A.O. Guide unconstitutional. A court Newspa- sexual offenses. Globe Court, 596, per v. Superior “stringent” Co. 457 could meet the First Amend- U.S. 598, 602, 102 L.Ed.2d sealing only S.Ct. 73 248 ment standard for public in the open been interest ments have overriding “an articulating by accessibility closure is essential “because a tradition findings past, based on narrowly judgment experi- values and is preserve higher implies the favorable Provi- interest.” Press-Enterprise to serve 478 U.S. at tailored ence.” Journal, (quoting (internal at 11 293 F.3d dence omit- quotations 106 S.Ct. Court Superior v. Press-Enterprise ted). Second, Co. public ac- we ask “whether 501, 510, I), (Press-Enterprise 464 U.S. in the significant positive role plays cess (1984)). De- 104 S.Ct. 78 L.Ed.2d in particular process functioning of the and its presumption of disclosure spite its inquiry If our into these question.” Id. judicial exercising guidelines careful yield affirmative considerations were overcoming presumption, discretion answers, only be overcome right could falls this framework below the AO. Guide (quoting Id. “overriding interest.” by Constitutionalizing stringency. level of I, 510, 104 464 U.S. at Press-Enterprise the dissent would question, the access 819). ac- review constitutional We S.Ct. do, displaces policy established thus Journal, claims de novo. Providence cess If courts. constitution- Congress and the at 10. 293 F.3d alized, discretion would be the court’s these courts have treated consid Some and the balance much more constrained test, pair with a two-prong erations as a much further toward disclosure. would tilt See, that must both be satisfied. elements analysis to future Applying the dissent’s El-Sayegh, v. e.g., United States similarly legislative oust cases would (D.C.Cir.1997); 158, 160-61 Baltimore Sun prop- rulemaking determinations about (4th Cir.1989). Goetz, Co. v. disclosure and er balance between Connolly, surprisingly, urges us in the courts. are un adopt approach as well. We reading persuaded that this is the correct Access Right Amendment C. First “complementary considerations” recognized a Supreme Court II. find that Press-Enterprise Because we right of access qualified First here, met how neither of the standards is docu judicial proceedings to certain ever, question to we need not decide Inc. v. Newspapers, ments Richmond day. 555, 100 Virginia, 448 U.S. (1980). We examine two L.Ed.2d 973 First Amend- Applying 1. Case Law to deter “complementary considerations” ment Standards right mine if a constitutional of access scope full of the constitutional applies particular documents such as is not the law. Courts of access settled summary Connolly’s CJA forms and they evaluated individual cases when legal fees he owed for statement each arose and have determined whether Press-Enterprise prior representation. activities category fell within the (Press-Enterprise Superior Court Co. applies. generally See to which the II), 1, 8, 2735, 92 106 S.Ct. Access, Ovelmen, D. Paul & R.J. (1986); Newspa Richmond L.Ed.2d see Law (Bren (Practicing Law 7 Communications pers, 448 U.S. 1999) ac- (classifying case law nan, Institute J., concurring) (applying similar stan case); Pokaski, cording type proceeding of or document F.2d in earlier 868 dards issue). case-by-case process This of II at (applying Press-Enterprise at 502-04 documents). classification, First, the limited Su- based on we look at test produced has preme precedents, Court whether materials like these three docu-

183 general that are rule of proceedings grand jury secrecy list of and records with by right of exceptions); covered First enumerated narrow Hur cf. and a list of those where no such access ley, (noting 920 F.2d at 94 lack of right attaches. jurors). access to petit deliberations of secrecy grand jury impor is so

Supreme precedent clearly Court ex- tant that this court and others found right tends the First Amendment to cover right no of access attaches to distinct hear trials, access to criminal Richmond News- ings and documents they because could 580, 2814, papers, at 100 448 U.S. S.Ct. grand reveal secret jury information. including potential jurors, the voir dire of Pokaski, E.g., 509; 868 F.2d at In re Mo I, 509-10, Press-Enterprise 464 U.S. at Co., 496, tions Dow Jones & 142 F.3d 819, preliminary 104 and trial-like S.Ct. of (D.C.Cir.1998); 500-03 United States v. cases, hearings in criminal El Vocero v. Smith, (3d 140, Cir.1997). 123 F.3d 143 Rico, 147, 149-50, Puerto 508 U.S. 113 rejected Courts have also (1993) claims based on 2004, (per 124 60 S.Ct. L.Ed.2d First Amendment rights access to other II, curiam); Press-Enterprise 478 at U.S. documents, types of at least in certain 10, 106 2735. See also News- S.Ct. Globe circumstances. These have included dis 610-11, 457 at 102 paper, U.S. S.Ct. 2613 materials, covery Seattle Times Co. v. mandatory (overturning requiring law clos- Rhinehart, 20, 37, 2199, ing during testimony of criminal trials (1984); 81 L.Ed.2d 17 abuse). Cryo Anderson v. minors who were victims of sexual vac, Inc., Cir.1986), F.2d cases, Beyond Supreme these few Court plea agreements, withdrawn ECSayegh, right lower courts have extended the at 131 F.3d affidavits supporting types various of documents. This court warrants, Sun, search Baltimore right applicable legal has found the 64-65, presentence at reports, parties by memoranda filed the court Corbitt, (7th cases, Journal, in criminal see Providence Cir.1989). at complet- to records of that, ed criminal cases ended con- without appeals Two courts of have considered viction, Pokaski, see 868 F.2d at 505. See right the First Amendment access Hurley, (construing also 920 F.2d at 97 concerning documents the CJA. both require presumptive rules to access to lists cases, however, issue jurors). payments attorneys, related to CJA issues, Courts have also that no held which raise few rather than applies types pro- to some other to the CJA documents filed ceedings and paradig- documents. The defendants. The results these courts example matic the grand jury, entirely whose reached were not consistent. The proceedings are conducted secret. See Tenth Circuit found no First Amendment Press-Enterprise backup 478 U.S. at of access to the vouchers or (citing Douglas attorneys S.Ct. 2735 Oil Co. v. Petrol to receive materials submit N.W., 211, 218, Gonzales, Stops payment U.S. under the CJA. (1979)) (grand jury 60 L.Ed.2d 156 is F.3d at In a case concerned with example properly pro- “classic” data” closed access to “barebones found 6(e) ceeding); (establishing attorneys’ Fed.R.Crim.P. CJA vouchers4 but not the more congressional independently subject 4. Given the amendments noted to disclosure under earlier, there, however, type judge of “barebones data” is now statute. Even uses materials, pretrial hearings to other analogous Cir- backup Second detailed applies, de- First Amendment right of access. which cuit a constitutional found United, Suarez, by Puerto spite noted Rico v. distinctions II, Press-Enterprise Court); (2d Cir.1989); United States Supreme 630-31 cf. Cir.1996) (11th 10-11, (evaluating Ellis, at 106 S.Ct. 2735 450-51 U.S. pre-trial hearings by looking issue California deciding First Amendment (avoiding types and to other practices on textual of states resting decision other case probable cause hear- hearings, including of regulations). of interpretation treason). Burr’s trial for ing Aaron demonstrate, As these cases ones, analogies be solid how- must press grant does not First Amendment ever, proxies for which as reasonable serve constitutional or an automatic judgment experience” the “favorable connect every access to document right of actual concerning to the documents access Rather, judicial activity. courts ed to Id. at 106 S.Ct. 2735.5The question. II Press-Enterprise stan apply must particular far strays Herald too from class of documents or particular to a dards eligibility nature the CJA documents whether proceedings and determine proposes supposedly when it two analo- class. right attaches to that openness, namely gous traditions of and access to information to criminal trials 2. Tradition expenditure about the funds. in the “tradition” response to One “criminal trial” tradition is relatively recent The asserted point would quiry CJA, analogy. As seen from exam- first enacted in too broad an vintage of the ples grand jury pre- as materials and there has not been such and conclude a reports, the mere connection of longstanding practice sentence time for enough not develop un document with a criminal case does disclosure to across-the-board meant, itself link the document to tradition of Tradition is der the statute. think, also narrowly; argues so we access. Herald we to be construed poten- proceedings eligibility that CJA determinations analogous also to look “type tially implicate kind.” the defendant’s constitu- of the same Garcia-Rosario, and that an denial Rivera-Puig v. rights, tional erroneous Vocero, (1st El Cir.1992); for reversal see eligibility grounds 508 of could be conviction, 150-51, are (finding of a so that these decisions U.S. fundamentally Rico tied to the trial itself.6 The pretrial hearings Puerto type strong, specified fac- document is this is not to consider a set of discretion accord- such a case. and redact certain information tors 3006A(d)(4)(D). ingly. See 18 U.S.C. imagine 6. We can situations where defen- funding might suggests glossing for CJA over the re dant’s arise The dissent proceedings, examining "proceed in the core of criminal such of tradition when view appeal challenging the denial of on ings origin.” We think we in an aid of recent do not See, free, grounds. e.g., Press-Enterprise simply Sixth under Analogies frequently Manning, 79 F.3d 218-19 ignore States v. tradition. will Cir.1996) (reviewing lawyers district court prove reasoning tools denial useful which CJA). generally expert employ. See C.R. for trial under Those are well trained to services Sunstein, Analogical Reasoning, far from the case be- 106 Harv. scenarios are removed On (1993). pos- fore defendant is in a different While absence us—the L.Rev. involved are analogous might not a claim ture and interests different— tradition doom them here. argument access to a and we do not consider the functional where significant same could be said of other ion from Florida that used this analogy, Ellis, proceedings, including grand jury, v. 154 F.R.D. (M.D.Fla.1993), which remain closed. Documents submit- 695-96 on other aff'd (“In conjunction discovery proceed- grounds, ted 90 F.3d at 451 the civil example, ings, thereby context, for do not become there a long history is of detailed trial which the part of the to tradition of about attorney disclosure fees and the ser Anderson, applies. See vices rendered when there is a fee-shifting 12; see also State ex rel. contract.”). WHIO-TV-7 statute or That tradition is Lowe, 77 Ohio St.3d 673 N.E.2d very different from the facts at hand. See (1997) (applying on to discovery rule Gonzales, (re generally 150 F.3d at 1257 proceeding). jecting analogy similar between fee-shift CJA). ing and Fee-shifting disputes occur

Indeed, at- the breadth the Herald’s litigation. the context of adversarial Id. any in a go tack would to document crimi- public The claimant files a document stat nal case ordered sealed a court. The ing its fees and That costs. document is peripheral documents are more akin to a statement of CJA funds Connolly’s compared trial when to those paid attorneys they after have been processes where a tradition of access has appointed generally statement which is triggered right, the First Amendment such —a quite made and is different from jury, as the selection of a Press-Enter- personal data about a criminal defendant’s I, prise 464 U.S. at Moreover, financial circumstances. attor legal memoranda submitted about the ney’s conceptual fees civil cases can be case, Journal, merits of the Providence part ized as prevailing the award to a 293 F.3d at 11. To conclude otherwise party for unlawful against conduct it if every- would create a of access to See, certain are met. e.g., standards Tam thing remotely associated with criminal tri- Prods., ko Roofing Roofing Inc. v. Ideal als, contrary precedent and would be Co., Cir.2002) (ana 30-32 employing finely more honed classifica- attorney’s lyzing fee awards under Lan- tions. ham Act in context losing party’s unlaw suggests Herald also there is behavior). policy ful No such similar is “expenditure funds” tradition in the that a involved determination defen comparison collapses of access. This on appointed dant eligible have counsel premise examination as well. The is itself under the CJA. Prosecutors, instance, overbroad. for do traditionally publish detailed informa- Connolly analogy offers a better when explaining government tion their use of government programs he cites to benefits resources, much it less break down on a branch, by the executive administered Gonzales, case-by-case basis. See strong where the tradition is one of confi- contemplates F.3d at CJA itself See, dentiality e.g., rather than disclosure. parte ex proceedings non-adversarial 302(a)(7) (2000) (establishing 42 U.S.C. involving expendi- certain determinations safeguards prevent public disclosure of defense, despite for indigent tures the re- Security recipi- about information Social sulting expenditure funds. ents). exception, We would think it the rule, support “public ap- require applicants As for ben- for its funds” not the proach, programs private argues the Herald civil fee- efits to disclose shifting traditionally determinations have data about themselves and their immediate public, opin- public. been family and cites district court process.” in at tioning reliance on dicta of the U.S. Finally, the Herald’s Here, to demonstrate the Foley City process ques- Lowell of misplaced. is tradition “public funds” determining eligibility for tion is one of Cir.1991) (“[T]he 10, 19 contin- public ac- only assistance. Not does CJA pub- viability of and confidence in the ued to a defendant’s financial documenta- cess litigation depen- are funding lic of certain support application fall tion of a CJA that perception on the claims dent standard, likely short of this more it would subject ... to the inde- counsel fees are play negative a role. court.”) (emphasis a pendent review of by petitioner-appellant; internal added scope The of this standard war omitted). Foley nothing had to quotation The Herald misinter rants clarification. CJA; analyzed with it civil fee- do prets proper inquiry argues when it police brutality ease under 42 shifting a privacy may that interests receive no con § F.2d at 18. More U.S.C. 1988. See 948 stage. at all In during sideration fundamentally, Foley nothing had to do Herald, stead, according “counter to access; public it concerned a court’s not even enter into the vailing interests do plaintiffs independent duty probe a civil analysis qualified right until after the has attorney’s awarded fees calculation of point, Only been established.” at that defendant who governmental when the Herald, says the when the court considers pay meaning- would the fees “mounted no particular whether circumstances over (“At it. Id. at opposition” ful least access, it qualified right may come a of are where funds involved or the mili look to or other concerns that implicated, public interest is otherwise against given tate in a case. disclosure duty application court a to consider the has But a test is blind functional ”). critically to ensure overall fairness.... drawbacks of access becomes no test at all. any support None of this lends The reason is that “there are some kinds a existence of relevant tradition of government operations of that would be access. if totally openly,” frustrated conducted experience” “judgment The of does not at Press-Enterprise support right constitutional standard), (discussing functional S.Ct. 2735 eligibility CJA materials. may or would at least be hindered. It be 3. Positive Functional Role process determining eligi that the CJA bility is one of those. That cannot be The other consideration under Press- ascertained without some reference to the Enterprise II is whether access to CJA potential problems by public ac created eligibility “plays particularly in the func- significant positive advantages.7 role actual cess as well as to the attaches, right considering right 7. Once a First Amendment when attaches whether stage, during when the the next court decides process general. example, to that For Con- overcome, right qualified it whether the nolly notes that his CJA forms include the particular considers factors relevant to case. bills; family amount of certain medical this is Pokaski, See, e.g., 868 F.2d at 506 & n. 17 idiosyncratic to his case and would be an (discussing how some individual defendants inappropriate determining appli- basis for may particular demonstrate circumstances cability of the as a whole. broader sealing requiring case their records text, privacy concerns we in the articulate by qualified are otherwise covered First however, ap- would be common to most CJA access). rely We do plicants. atypical process on factors which are of a 3006A(d)(4). determinations, only if First, est version CJA all, aspects Connolly’s appli- far from the core significant lie they merits of the crim judicial power or the that were not made are the cation assets, liabilities, functional Many flagship family’s inal case. of his details thus become less justifications for access financial obligations. themselves, access Unlike trials

relevant. to a defendant’s financial Public access financial state defendant’s usually facilitate information would not for com provide not an “outlet ments does greater accuracy decisionmaking. concern, emotion” hostility, and munity are granting standards for CJA assistance Newspa crime. Richmond concerning a give flexible and the benefit of the doubt to And, 571, 100 at S.Ct. 2814. pers, 448 U.S. applies type who for aid. The a defendant “impose may unlike other decisions typically information on the forms is not practical consequences upon official public is public in the domain and so the society large,” at id. at members of well-positioned challenge accuracy. not (Brennan, J., concurring), accuracy judge If the has doubts about the never do so. determinations CJA submitted, the of the financial information “advantage” remaining A functional may investigated be or more informa- data the oft-cited the Herald advances is which defendants, officers, provided by tion court “full under- public to have the need for prosecutors. See VII A.O. Guide an necessary to “serve as effec- standing” inaccurate, § If 2.03. the data is the court Pokaski, system.” tive check on appointment and order may rescind the Journal, in Providence quoted F.2d at repay any spent. funds defendant isolation, In the “full at 10. 293 F.3d 3006A(f). § Since a defendant’s 18 U.S.C. proves too understanding” rationale usually investigated financial condition is it, proceed- grand jury much—under even preparing presentence process in the public. be As to the “effective ings would that, in the the court is aware report, rationale, about we have doubts check” conviction, of a there will be event scrutiny applicant’s of an public whether of a defendant’s independent examination actually improve financial data would addition, In financial status at that time. eligibili- as to judges’ decisionmaking CJA consequences possible are there Gonzales, at 1260. ty. See knowingly files false a defendant who for framework, Guide Under A.O. information; clear- Form 23 indicates fully open will eligibility decisions be submitted under ly signed that it is particu- no public scrutiny cases where penalty perjury. for what- privacy present lar concerns are appoint- each individual CJA Finally, reasons, or where the defendant does ever small may comparatively involve a ment object to The fact that an not disclosure. normally capped at money, amount of attorney ap- and an application was filed $5,200 felony 18 U.S.C. for a case. See public matters which are en- pointed are 3006A(d)(2). actual amount of mon- § general on the docket of a case. The tered public. ey spent appointed on counsel need, Connolly’s financial ra- reason 3006A(d)(4). the func- Under See id. face, articulated tional on its was II, the Press-Enterprise tional standard of appointing attorney, his also order scrutiny “positive role” of real-world paid to money The amounts of document. negligible at eligibility materials is be of CJA Connolly’s attorney presumably will in due course under the new- best. made hand, (“[CJA] other the disclosure of a

On the information ob- personal sensitive financial in- judgment defendant’s tained after could still be used formation, bearing government which has no on the investigate ”). trial, of the criminal could un- bring charges.... merits well new effects Such enhance, judicial process ways. disrupt, dermine the in other tend to the function- itself, ing process. the invasion of inherent in disclosing this data is of concern. See Under the Federal Rules of Criminal Corbitt, F.2d at (weighing 230-32 de- Procedure, presentence reports must con- personal privacy fendants’ interests when very type tain the same of financial infor- maintaining presentence reports). seal on mation as is found in CJA forms. See magnified by This concern is the crucial 32(d)(2)(A)(ii). presen- But Fed.R.Crim.P. role of the CJA as a vehicle to effectuate reports presumptively tence confiden- rights Sixth Amendment for defendants tial documents. courts typi- “[T]he who legal representation. cannot afford cally required special some showing of A constitutionally-based right, of they access need before will allow a party third to private personal otherwise financial data copy presentence report.” obtain a of a Julian, 1, of one’s own and family imposes Dep’t one’s a U.S. Justice v. 486 U.S. of high price (1988); on the exercise of one’s constitu- 108 S.Ct. 100 L.Ed.2d 1 right Smith, tional if in obtain counsel financial see United States v. 13 F.3d (5th system justice Cir.1994); Corbitt, need. of Our cherishes 879 F.2d at principle “the that defendants are not to 229. This standard for disclosure is obvi- avoidably be against ously standard, discriminated because not the First Amendment indigency.” of their presumes Holden v. United which disclosure. As another States, Cir.1968). noted, 393 F.2d circuit even in Brady the face of a But a requirement strict disclosure request could for information from another de- discourage eligible well presentence report, defendants from fendant’s the financial availing themselves of their right to coun- condition of the defendant is confidential by forcing sel them to intensely personal. choose between United States v. (4th privacy Trevino, Cir.1996). and CJA assistance —a choice that 89 F.3d spec- other defendants do not face.8 The No circuit court parties has held that third ter of disclosure also might lead defen- have a right constitutional of access to (or upon by presentence rather, dants other sources called reports; courts have court) Corbitt, contrary withhold information. Public dis- reached result. See closure of such may put information them Self-evidently, pre- 879 F.2d at 237. at of harm property risk to their or their report, sentence on which sentences are based, families if the by information is misused is closer to the heart of prospect their enemies. There a proceedings is of than the eligibility docu- unbalancing the scales in prose- a criminal ments. It why, is difficult to understand if cution if the applica- information no right there is First Amendment of ac- tion materials could prosecution, assist the cess to information about a defendant’s raising specter thus of of claims denial financial condition at sentencing and dur- Gonzales, of Fifth rights. Amendment ing imprisonment, his a there could be Cf. indigent 8. stronger, The dissent notes that de- closure not weaker. The law does accept fendants will have little choice but to not force criminal defendants to make such a funds; exchange the loss of for CJA choice. Hobson's against this observation makes the case dis- part process of a generated a ministerial right Amendment First trial. the review of ancillary in- While financial the defendant’s statement by conducted these documents is district trial, presumed when he is at formation magistrate judge, that could judge or role exercising his Sixth merely and is innocent assigned to another institution. have been right to counsel. considering In law cases common then, balance, would not disclosure On has often used a definition right, this court positive role particularly significant play “a “ma- “judicial of a record” which refers to process” functioning of in the actual a court relies in determin- terials on which eligibility. Press-Enter- determining CJA See, rights.” substantive ing litigants’ at prise Journal, at 16 e.g., Providence Rather, play nega- likely disclosure 13). Anderson, (quoting tradition the lessons of role. Nor do tive language argues Herald on this seizes access. support the wisdom that the to counsel a criminal trial grant does First Amendment is, course, right guaran- a substantive access, objection, to over the defendant’s argu- teed the Sixth Amendment. This to demon- documents submitted ment takes our shorthand definition out for CJA strate the defendant’s Anderson, originated, where it context. framework, in The current CJA funds. distinguish used docu- phrase was dis- typically these materials which presented judge ments to a connection the court closed unless decides discovery dispute a from the record sealed, constitu- should be is documents cen- judge actually a decides the on which tional. in a case. 805 F.2d at 13 tral issues Presumption Access Law D. Common (“[DJiscovery fundamentally different is proceedings [com- those for which a from constitutional any In addition to has right of access been law] mon presumption also a right, there applied Similarly, we have recognized.”). the com “judicial records” under access to a to documents on which this definition Nixon v. Warner mon Communica law. decree approving in consent court relied 589, 597, Inc., tions, 98 S.Ct. 435 U.S. en- approval settled civil because that Anderson, (1978); 1306, 55 L.Ed.2d Mgmt., Fin. forcement action. Standard argues The Herald at 13. F.2d 830 F.2d 408-09. at sealing of invalidates presumption As Connolly’s eligibility documents. Here, contrast, in the court not did any law has common suming in Connolly’s review of finances its conduct statute, by see Gon displaced been as to the dispose any issue order to zales, that the at we hold 150 F.3d charges against the criminal elements of applicable to these presumption is not Anderson, eligibility the CJA him. As in were, documents, if it and that types of merely judge’s related documents exercised judge still magistrate correctly trial. Stan management of the role Cf. by it finding overcome his discretion (exclud F.2d at 408 Mgmt., Fin. dard countervailing interests. which “documents from ing presumption process”). adjudication no role in the play is limited presumption law The common effec decisions that Other administrative As we have estab- “judicial records.” out rights made tuate constitutional that CJA already, we do not think lished entirely, and no judiciary create side the qualify as such. documents to the documents presumption of access Rather, paperwork they are administrative example, prison Recognition importance used the decision. For of finan privacy cial is also enshrined in constitutionally ers are entitled to medical Act, treatment, Gamble, 97, policy. The Freedom of Information Estelle v. applicable only to executive branch materi 102-104, 50 L.Ed.2d 251 als, exempts personal fi and confidential (1976), provide but the decision to treat nancial information from disclosure. See 5 thereby “judicial,” ment is not nor do 552(b)(4) (2000). Congress U.S.C. re prisoner’s thereby medical records become cently singled out financial information for Delie, “judicial documents.” Doe v. Cf. special protection ap when it (3d Cir.2001) (privacy 315-16 proved an overhaul banking of the nation’s information). prisoner medical

regulations. Gramm-Leach-Bliley See assuming eligibili (GLB Even that CJA Act), Act of 1999 Pub.L. No. 106- ty (1999) (codified were a common §§ covered 501-510 at 15 access, presumption (2000)); law we §§ would still U.S.C. 6801-6809 Trans Un Comm’n, affirm magistrate judge’s decision to ion LLC v. Fed. Trade (D.C.Cir.2002) (upholding maintain sealing Connolly’s regulations implementing application privacy provi GLB Act’s materials. The standard for sions). generally Privacy See Elec. Info. our review is abuse of discretion. Siedle v. Ctr., Act, Invs., Inc., Gramnu-Leachr-Bliley at Putnam http:/Avww.epie.org/privacy/glba. Cir.1998) (“The enjoys trial court consider protection are also considering greater leeway making able decisions of this privacy. Accounting See Gen. Of sort.”). decision as to “[T]he [common 2002) (sum fice, (April Financial Privacy law] access is one best left to the sound marizing implementation state of GLB court, discretion of the trial a discretion to provisions Act’s in concerning insurance in light be exercised of the relevant facts dustry); Clymer, A. Tight North Dakota particular circumstances of the case.” ens Law on Bank Data and Privacy, N.Y. Nixon, 98 S.Ct. 1306. The U.S. Times, 13, 2002, June at (reporting A28 magistrate judge’s short but clear order that 72 percent of voters in statewide ref balanced the in the interest informa supported tighter erendum priva financial interests, against privacy tion and his con law); Gold, cy than restrictions federal R. clusion was not an of discretion. abuse Rules, Optr-In, States Mull Optr-Out Wall J., 13, 2002, B8, St. Mar. information, available at Personal 2002 (reporting greater WL-WSJ 3388589 such as one’s income or bank account bal interest in state legislatures because “con ance, presumed universally pri is to be sumers increasingly [are] worried about vate, public. not See United States v. having open their financial data to scruti (Amodeo II), Amodeo ny”). (2d Cir.1995) (courts analyzing common presumption

law should “consider the de addition, Supreme Court has ex- gree subject to which the matter is tradi plained that a court considering the com- tionally private considered rather than mon presumption enjoys law “supervisory public”). The magistrate judge sensibly power” deny access where “court files Connolly’s concluded that strong interest might improper have become a vehicle for privacy family’s per his and his purposes” and to “insure that its records sonal financial outweighs any information gratify private spite are not ‘used to ” presumption Nixon, common law promote public these circum scandal.’ stances. U.S. at In re (quoting (R.I. portion attorney’s of a of his fees payment Caswell, 29 A. R.I. expenses. Two documents are legal and 1893)). judge would be magistrate The amended Form 23 original and CJA to consider his discretion well within affidavit, the third document reflects and factor as well. outstanding fees at the Connolly’s legal of the disclo- Finally, the invasiveness Form 23 application. time of his CJA intensified be- further sought here is sure provide detailed in- requires applicants pertains only information cause the status, family em- formation about their and children. also to his wife Connolly, but income, (including other assets ployment (giving 71 F.3d at Amodeo See cash, income, and debt property) other privacy interests weight increased obligations. parties”). third “innocent judge denied the Her- magistrate presumption Thus, if a law even common “[tjhere motion, that determining ald’s forms state- Connolly’s CJA applied right Amendment no First fees, would still legal we prior ment of documentation, backup mo- CJA-related judge’s decision. magistrate affirm tions, hearing transcripts.... orders Further, regulations statute and [CJA] III. law if one supercede ... the common presented has its case the Herald While originally he had Noting existed.” neither the First ably, we hold that their disclo- the documents because sealed provides common law nor the “unduly upon priva- intrude would sure financial documents of access to defendant,” magistrate judge cy of the application to with an initial submitted position: “I decline his earlier reaffirmed a defendant’s demonstrate my discretion to unseal to exercise that, if hold even We also CJA assistance. I find that at this time because law presumption a common there were of the defen- intrusion on the here, access, outweighed it would be then if the docu- family that of his dant and found, by Connolly’s below as the courts released would be as substan- ments were There privacy interests. countervailing sealing orders now as it was when tial of these time in the future may come a entered.” were appropriate it would be when proceedings Herald’s of the Boston disposition This applica- Connolly’s on to lift the seal ruling tantamount to a claims is decision, materials; like we leave that tion forms, only per- which contain eligibility seal, to to the discre- original the decision information, may be financial sonal tion of the district court. without public disclosure from shielded is of mandamus petition The for writ particu- in a the interest balancing the of the district denied and decision information eligibility applicant’s lar affirmed. court is into the of intrusion degree the against I conclude privacy. Because applicant’s LIPEZ, dissenting. Judge, Circuit at- public access right of qualified that a un- information eligibility in the taches to CJA intervened Boston Herald First Jr., law and the the common Connolly, der both trial of John J. Amendment, with the ma- agree I cannot submit- three documents seeking to unseal magistrate uphold jority’s decision application his Connolly part ted Boston of the (“CJA”), summary dismissal judge’s 18 Act Justice under Criminal right of ac- (2000), Herald’s claims. government § for 3006A U.S.C. 192 3006A(b), appropriate, §

cess under these two doctrines constrains 18 U.S.C. judges appoint- to seal CJA determination of the duration of discretion ments, 3006A(c), § I Accordingly, Form 23 information. 18 U.S.C. the waiver compensation case for a determina- the maximum would remand this rates demands, public’s right justice of ac- tion of whether when 18 U.S.C. 3006A(d)(3), § cess under the First Amendment is over- disclosure of counsel, “by overriding paid appointed come interest based on the amounts 3006A(d)(4), pre- § is essential to findings closure 18 U.S.C. and the authori- higher narrowly serve values and is tai- zation of investigative, reimbursement for interest.” In Prov- expert, lored to serve that re or other services deemed neces- Co., (1st sary adequate representation, idence Journal for Cir.2002) 3006A(e)(l). Indeed, § (citing Press-Enterprise v. Su- U.S.C. regu- Court, 501, 510, perior promulgated implement lations (1984) (“Press-Enter- explicitly L.Ed.2d state that determi- “[t]he ”)). prise I nation eligibility representation un- judicial der the Criminal Act is a func-

I. performed by tion to be a federal judge magistrate appropriate after making A. The Judicial Character the Docu- inquiries concerning person’s ments condition.” VII Administrative Office of generated Documents the course of a the United States Courts’ Guide to Judi- judicial “judicial” be proceeding must doc (hereinaf- ciary Policies and Procedures trigger presump uments to a common law Guide”) (2001) (empha- ter “AO. 2.03 judicial tion of access. This character is added). sis necessary also a but not sufficient condi qualified right tion to establish a of access Congress’s delegate decision to this au- under the First Amendment. See Provi thority exclusively judges is not sur- Journal, Thus, dence 293 F.3d at 9-10. prising ensuring that criminal defen- — claim Boston Herald has no of access dants receive the full benefits Sixth to materials classified as “administrative” guarantee Amendment’s of effective assis- Dio, documents. See El Inc. v. Hernan tance of always counsel has been the (1st Colón, Cir.1992); dez unique province judiciary. Judges Mgmt. Corp., FTC v. Standard Fin. alia, required, inter to establish that (1st Cir.1987). Therefore, I proceed criminal defendants pro who se question first address the of whether the knowingly and intelligently waived forms are docu counsel, their see United States v. ments. Manjarrez, 306 F.3d Cir. 2002), appoint appro- counsel who are Judges

1. The Role in the Eligibility priately represent “learned the law” to Inquiry facing capital charges, defendants Miranda, anticipates The the CJA involvement States v. F.Supp.2d 148 292 (S.D.N.Y.2001), of a magistrate judge “United States or exempt applicants nearly phase the court” in every of the from the statutory requirement filing of appointment process, including gener- the CJA Form 23 where doing prej- so would plan representa- ation of a furnishing for udice the defendant’s other constitutional tion, 3006A(a), § Gravatt, the rights, U.S.C. determi- see United v. States (3d 585, Cir.1989) nation appointment of whether of (reversing counsel F.2d trial appointed applicant may with moderate resources request for denial court’s qualify appointed with nevertheless for counsel applicant charged was counsel where complete representation the and refused to under the CJA for tax evasion trial, complex it be grounds that would murder whereas a defen- Form 23 on CJA considerably may States v. dant of lesser means self-incriminating); United (5th Cir.1982), Moore, eligible representation not be for in a denied, 859, 104 prosecution 464 U.S. less serious offense. cert. (1983) (same); judge conducting mag- United The the trial or a 78 L.Ed.2d (8th Anderson, judge equally istrate familiar with the States (same). Cir.1977) proceedings character facts and of the case is uniquely positioned appli- determines a the eligibility inquiry that assess position against Amendment cant’s financial the back- defendant’s Sixth drop past, present anticipated the fact that ex- not undermined counsel is occasionally action. personnel penditures underlying administrative judgments effectuate entrusted obliges further Significantly, settings outside the rights constitutional continually judge reevaluate the courtroom, expect one would not where underly- appointed need for counsel as See, initial decisions. judges to render ing proceeding progresses: Gamble, 102- e.g., Estelle v. appointment If at time after the any (1976) L.Ed.2d 251 magistrate counsel United States prison claim that (adjudicating prisoner’s person judge or the court finds that the by re Eighth violated doctor financially is able to obtain counsel or to care). provide adequate medical fusing to partial payment represen- make for the judge also mandated that the Congress tation, may appointment it terminate the inquiry into a undertake an individualized counsel, ... payment or authorize to retain coun- ability defendant’s financial justice may If the interests of dictate. sel: includ- any stage proceedings, at of the magis- ing appeal, the United States judge or magistrate United States

[T]he finds that the judge trate or the court court, appropriate if satisfied after financially pay coun- person is unable financially person inquiry retained, may ap- it counsel, he had appoint sel whom shall unable to obtain payment ... and authorize point counsel represent appoint- him. Such counsel to justice may ... dic- as the interests in- may ment be made retroactive to magistrate tate. The United States pur- any representation furnished clude in the interests judge may, or the court plan prior appointment. suant to the justice, appointed one coun- substitute magistrate or pro- any stage sel for another separate counsel for appoint court shall ceedings. that cannot persons having interests by the same properly represented be 3006A(c). CJA, § Under the 18 U.S.C. counsel, good cause is or when other magistrate personnel assist administrative shown. rendering eligibility judges and district forms, 3006A(b) added). by generating (emphasis determinations 18 U.S.C. application mate- accepting service of CJA Implicitly, provision acknowledges rials, verify helping “to obtain relationship between an important eligibility] determi- upon [the cir- facts which applicant’s financial status and the A. to be made.” VII O. Guide underlying case. An nation is cumstances of the 194 2.03(B). However, judicial power. these Article III individuals The rele- expertise weigh

lack the to “the interests reliability vance or of a statement or justice” considering when whether cannot document be determined until approve appointment at an withdraw counsel, and, heard or read if neces- proceedings, intermittent in the and stage sary, by judicial the court or other offi- hard-pressed continuously would also be result, temptation cer. As a to leave developments underly- in the monitor the no stone unturned in the search for evi- ing case. These reinforce the wis- realities judicial dence proceeding material to a repose dom of Congress’s decision CJA up only turns a vast amount of not irrel- authority in decisionmaking judges. evant but also material. unreliable Un- 2. The Role CJA Form 23 every up limited access to in item turned Informa- Eligibility Inquiry

tion in the the course litigation would be un- Reputations thinkable. would be im- judges play While the critical role that ruined, paired, personal relationships in eligibility inquiry judicial evinces the destroyed and they rely upon, character of the documents businesses on the basis of dispositive significance of those docu- misleading or downright false informa- “judicial” ments further enhances their tion. Amodeo, status. United States v. Amodeo, 1044, United States v. 71 F.3d (2d Cir.1995) (“Amodeo I”), F.3d 141 (2d Cir.1995) (‘Amodeo II”); 1048-49 see Second following Circuit established the Rhinehart, Times v. Seattle Co. “judicial functional definition of docu- 20, 33, 81 L.Ed.2d 17 think ment”: ‘We that the item filed must (1984); Inc., Cryovac, Anderson v. performance judi- be relevant (1st Cir.1986). F.2d Yet the rele judicial pro- cial function and in the useful reliability afflicting vance and vexations designated cess order for it to be discovery process inapplicable

judicial document.” Id. at 145.9 defi- This information, (1) eligibility which is nition distinguishes forms under penalty perjury submitted from generated judicial other documents (2) reliable, presumptively thus singu proceedings, produced such as materials larly relevant to the court’s determination during discovery, that courts are often re- applicant of whether an classify “judicial ap luctant to is entitled to documents”: pointed counsel. See v. United States Sa recognized [I]t must be that an abun- lemme, (D.Mass. F.Supp. dance of gen- statements and documents 1997) (“Typically, litigation actually erated federal CJA 23 form of fi little bearing or no on the exercise of nancial affidavit ... is used to determine exacting 9. This is a more adjudicatory proceedings, standard than the the course of be- employed jurisdictions. test in other presumption come documents to which the Circuit, example, Third has held that "it Financial, applies.” Standard filing trigger[s] the act [is] vel non that criteria, 830 F.2d at 409. Under these docu- Leucadia, presumption of access.” Inc. v. ments such as search-warrant affidavits Techs., Inc., Applied Extrusion presentence reports are classified as (3d Cir.1993) (listing 161-62 cases in which qualified documents to which a common law recognized princi- "other courts have also right of access re attaches. See In Baltimore ple filing gives that the of document rise Co., (4th Cir.1989) Sun access.”). presumptive right a deed, In- (search affidavits); warrant previously we have ruled that “relevant Corbitt, Cir.1989) (7th (pre- to, documents which are submitted and ac- reports). sentence cepted by, competent jurisdiction a court of public of I, right ruling qualified that the eligible for a defendant whether the transcript of counsel.”). access attached of appointment in potential jurors examination of voir dire the “Adminis- Scope The Narrow 3. of I, Press-Enterprise See trial. criminal Exception trative Document” Indeed, 501, 104 we at play in the judges that role The critical a com- that in Standard Financial ruled determination, with the coupled eligibility to public attached right of mon law documents of the significance that a district court financial documents determination, counsel that themselves ap- whether to determining in reviewed eligibili- classifying the in favor strongly the Fed- decree between prove a consent ma- judicial documents. forms as ty corporation Trade Commission eral however, that the suggests, jority market- deceptive in engaging accused category the forms fall outside eligibility Financial, 830 Standard ing practices. “ad- of their by virtue documents judicial the had condi- Because court F.2d at 405. the character, characterizing ministrative” be- the decree tionally approved consent paperwork as “administrative documents in question, the examining documents fore process of a ministerial part generated that “the statements argued plaintiffs we, along Yet to trial.” ancillary upon records have been court could not that Circuit, recognized Second adjudicato- judge] relied in the [the which III of their Article apex act at courts disagreed, Id. at 408. We ry process.” proceedings they conduct power whenever “takes plaintiffs’ argument finding that rights substantive that determine constitutes a a view of what too restrictive ac- to be strong weight “[T]he litigants: allowing purpose for court record judicial access to right of corded F.2d 404. at access.” Id. largely derived from [is] documents in determin- play[] are Here, eligibility those documents forms role the CJA rights court’s litigants’ substantive to a ing connected proximately more —conduct from III —and heart of Article than rights at the of substantive determination that con- monitoring of in Press- transcript need voir dire either the 1049; at see Amodeo duct.” the financial I or Enterprise Journal, 9-10 at Providence consent for a gain approval submitted access ex- (“[T]he right of common-law As a Financial. Standard decree relies a court on which to ‘materials tends matter, inquiry de- threshold litigants’ substantive determining the applicant’s substantive termines ” Cryovac, 805 F.2d (quoting rights.’ Amend- Sixth under both the to counsel 13)). itself, that the extent the CJA ment and concep- expand their may courts particular their

Thus, may pursuant act courts the statu- need such tion of financial ante- authority proceedings III Article standards constitutional tory and they trial even when cedent to a Moreover, oc- inquiry coextensive. peripheral that are matters address setting the same adversarial curs within dispute. underlying of the merits Cfi determinations (“The judicial typifies other Journal, at 10 Providence rights. See United of substantive access [to constitutional (D.Conn. Coniam, F.Supp. trial the actual is not limited records] in re- 1983) (“The government role pretrial itself, encompasses most but also appro- the CJA the utilization lation to ac- Supreme Court proceedings.”). of defendant’s guarantee for the priation Press-Enterprise knowledged as much 196

rights, specified, while nowhere is justice.... none- tration of Although courts appropriately by theless invited ap- the have a checks, number internal such proval of an process adversarial by which as appellate review multi-judge tribu- propriety insure the of defendant’s re- nals, professional monitoring ceipt of services of counsel under the is an essential feature of democratic con- CJA”) Harris, (citing United 707 trol. Monitoring provides both judges (2d Cir.1983)). F.2d Thus, 662 with critical views of their work and government is entitled and encouraged to deters arbitrary judicial behavior. appointments contest CJA for applicants it Without moreover, monitoring, pub- deems unworthy, see United States v. lic could have no confidence the con- (N.D.Cal. Hickey, F.Supp. scientiousness, reasonableness, or hones- 1998); Herbawi, United States v. ty judicial proceedings. F.Supp. (W.D.N.Y.1996), and to actively defend a court’s deny decision to Amodeo 1048. impor- appointed counsel if spurned applicant tance of this monitoring function does not challenges the decision appeal, on see fluctuate original between an appel- Lefkowitz, United States v. late CJA, under proceeding and there- (8th Cir.1997); Harris, 707 F.2d at any fore rule that purports to confine the 660-62. Article III imprimatur to documents that Under Connolly’s conception narrower directly inform adjudication of the un- III, of Article a court only exercises Arti- derlying case or controversy unduly cle power III to resolve the merits of the narrow. underlying case controversy: “Article i.e., III adjudication I of fed- acknowledge per- administrative functions — eral cases and controversies —are those sonnel play important an supporting role which the assigns Constitution uniquely to in the inquiry prior judi- the federal application courts.” The cial determination of eligibility. Never- this rule would have the odd result of theless, the administrative features of the creating qualified access eligibility inquiry do not erode the funda- to only those financial affidavits that be- mental Article III character eligi- of CJA come subject appeal, of an where the forms, bility thereby transforming them applicant’s financial information would be into “administrative” Except- documents. inextricably linked with the merits ing the decision of the Tenth Circuit in appellate proceeding. supposition Gonzales, United States v. 150 F.3d 1246 that a bona fide interest (10th Cir.1998), no court to my knowledge eligibility only materializes if and when a judicial/administrative has invoked the dis- party appeals the court’s initial eligibility tinction to carve “administrative” ex- determination is difficult to harmonize with ception to the presumptively judicial char- the principles underlying the common law acter of documents that must be filed with presumption of judicial access to docu- the court as a required judicial basis for ments: Indeed, decision making. jurisdic- many The presumption of is based on tions simply “judicial accord document” the need courts, for federal although status to all court, materials filed with independent indeed, particularly be- — regardless of they particular cause independent func- have a —to measure of tion accountability and for which for the the documents are relevant. public to have confidence adminis- supra. See as that control” government’s in the courts that some the extent

To Id. at in Houchins. “judicial” phrase is used between a distinction fashioned documents, this dis- and “administrative” terms in institutional been cast has

tinction public’s right of access to Although the and to shield state narrowly employed and the law under common judicial documents from branch materials executive federal “are not coter- and the First Amendment docu- access accorded presumption the minous, employed much the have courts Thus, in El judicial proceedings. ments evaluating their of screen type same issued order Dia, an executive upheld we Provi- particular claims.” applicability to limiting Rico of Puerto by governor the However, Journal, at 10. dence his off-island detailing access to documents differences between important are there “[wjhile observing that expenses, travel access: rights the two quali- a recognized has Supreme Court the af rights distinction between the access to right of First Amendment fied and by first amendment forded the to the connected proceedings and records common law is by the those afforded has ... Court the justice system right of A first amendment significant. right of corresponding a recognized never only proof of a denied access can be documents.” Branch to Executive access interest” “compelling governmental (internal cita- Dia, at 494-95 F.2d El 963 “narrowly tai proof that the denial omitted). Supreme Similarly, the tions Globe to serve that interest.” lored Amendment to extend First refused Court Ct.], 457 U.S. v.Super. Newspaper [Co. at- media of the members protection to 2613, L.Ed.2d [596], 606, 73 S.Ct. 102 county a and tour tempting photograph (1982) contrast, under the ]. 248 [ commit- recently inmate had jail where an grant the decision to common law to de- suicide, response purportedly ted the discre is “left to sound deny access prison. at teriorating conditions court, to be the trial discretion tion of Inc., 1, 3, 98 KQED, U.S. 438 Houchins facts of the relevant light exercised (1978). Ac- L.Ed.2d 553 particular1 of the and circumstances plurality: cording to the v. Warner Communica case.” Nixon nor First Amendment Neither tions, Inc., U.S. mandates Fourteenth (1978). 55 L.Ed.2d informa- government right of access within the information Sun, Accord- tion or sources F.2d Baltimore [Ujntil po- ... control scope of government’s to evaluate the ingly, proceed I otherwise, as decree Connolly litical branches access to the right of public no do, the media they are free common under both the judicial documents [jail] differ- right of access special Amendment. law and the First than that accorded greater ent from or Access Presumption Public B. The generally. public Law Common Under the The broad 15-16, 98 S.Ct. 2588. Id. at particular doc- that The determination considerations political institutional ipso fac- “judicial” documents uments El Día and the decisions in that informed right presumptive establishes re- by media implicated Houchins are law: under common filed for the information quests that recognized long have “Courts crimi- of a in the midst applicants by CJA fosters judicial system monitoring Indeed, these proceeding. nal honesty quality, values important with- considered “information could not be respect legal system. for our This Club Ltd. v. Selig, 955 F.Supp. recognition given presump- (S.D.N.Y.1997) has rise to a North, (citing Joy v. tion has a common-law (2d Cir.1982)). of access to documents.” While the supports caselaw recogni- Journal, (inter- Providence 293 F.3d at 9 tion of a presumption common law of ac- omitted). nal presumptive citations “This cess Connolly’s forms, right of access attaches to those materi- magistrate judge stated in his decision that als ‘which properly come before the “the regulations [CJA] statute and ... court in the course of an adjudicatory supercede the common law if one proceeding and which are relevant ” Gonzales, existed.” (citing 150 F.3d at adjudication.’ Id. (quoting Stan- 1263). That sweeping assertion must be Financial, dard 830 F.2d at 412-13 against measured familiar In standards. Cir.1987)). However, all presump- Texas, United States v.

tions of equal: access are created (1993), 123 L.Ed.2d 245 the We weight believe that the given to be Supreme recognized Court the presumption the must gov- be by erned the role of the material at issue longstanding ... principle that “statutes in the exercise of judicial Article III which invade the common law are to be power and the resultant value of such read with a presumption favoring the information to monitoring those the fed- long-established retention of and famil- Generally, eral courts. the information principles, iar except when statutory will fall somewhere on a continuum from purpose to contrary the is evident.” In matters that directly adjudica- affect an cases, such Congress does not write tion to matters that come within a upon a clean slate. In abrogate order to purview court’s solely to insure their principle, common-law the statute irrelevance. “speak must directly” question to the Here, Amodeo the addressed the common law. CJA Form 23 information unmistakably 529,113 (internal Id. at S.Ct. 1631 citations falls on “strong presumption” the end of omitted). Accordingly, under well-settled the Article III continuum. While the principles statutory construction, courts judge conducting the inquiry will not construe a statute derogative as has the discretion to consider other fac- the common law Congress unless tors, explicitly such as the nature of the proceeding articulates that intent: which the defendant appointed seeks counsel, applicant’s is, financial status The courts have consistently legis- held reasons, for obvious impor- the utmost lation derogative of the common law ac- cases, tance to the many court. countable to an expression, exactness of may documents only be the evi- and have not allowed the effects of such dence submitted in eligibility proceed- legislation to be beyond extended ing, a consideration that significantly necessary and meaning unavoidable strengthens the common law presumption its terms. The presumption runs of access: “Judicial presump- records are against such innovation. merely This is tively subject public inspection.... a familiar principle of statutory con- presumption [T]he is at strongest its when struction. question, here, document in has been submitted as a Richardson, basis for deci- Scharfeld sion making.” (D.C.Cir.1942). Greater Miami Baseball treatment not receive individualized do reflects Con- of the CJA language the statute itself: background to these sensitivity gress’s [pertaining Generally, such information Congress identified Where principles. under the Justice to activities Criminal confidentiality during preserve need to which is not statutes] Act related expressly did it appointment process, pub- routinely available otherwise narrowly statutory provisions through so unless it is lic should be made available particular addressed seal, placed under or could judicially 3006A(d)(4) § 18 U.S.C. See proceedings. reasonably expected unduly in- be limit dis- delay or courts (directing or attorneys upon trude where do- information payment closure of defendants; strate- compromise defense inter alia would undermine ing so attorney investigative procedures, gies, the attor- rights, constitutional defendant’s rela- product, attorney-client work product the work or privilege, ney-client pro- tionship privileged information or (authoriz- 3006A(e) 18 U.S.C. privilege); sources; by the defendant other vided for “investi- approve payment ing courts the defen- adversely or otherwise affect necessary services expert, or other gative, assistance dant’s effective [u]pon .... representation adequate trial, adju- counsel, impartial a fair or an in an ex inquiry appropriate finding, after dication. that the services proceeding, parte added). 5.01(A) (emphasis § AO. Guide financially person is and that the necessary con which provision guidelines, This of the them”) add- (emphasis to obtain unable not bar Congress does trols where ed).10 materials with particular CJA disclosure of contrast, the statute nor By neither see Schar expression,” of an “exactness to the confi- specifically refers A.O. Guide essentially regu a F.2d at is feld, 133 of dentiality or balancing disclosure exercise of the latory codification CJA.Form im- information, ordinarily does not public which qualified employ once a that courts judicial Fifth Amendment a defendant’s has attached plicate right of access Instead, regu- law. Com implementing common under the rights.11 1050-51, II, with 71 F.3d at by the Administrative promulgated pare Amodeo lations 5.01(A). By specifying § general a establish VII A.O. Guide of U.S. Courts Office un be released materials should encompass- that CJA that of disclosure presumption upon “unduly intrude materials that less and documents processes the CJA es dangers unique 3006A(d)(4) reflects the materials § of these U.S.C. The substance of 10. this in- authority poor attending premature disclosure why is Gonzalez underscores formation, judge’s potentially assertion "reveal magistrate for the which could law application of preempts common CJA a defendant's strengths and weaknesses only 23 affidavits. Not principles to the Form including strategy, trial his or her case and propo- authority for the cite no witnesses, does Gonzales defenses, evidence to possible statute Congress intended the CJA sition Id. at 1259. at trial.” be used "occupy field ... regulations [the] right [of law supercede the common Indeed, found that one has at least court 11. access],” Gonzales, but seemingly mandate nor does not "[t]he adjudicating a local in was court Gonzales presentation contemplate a closed payment petition to unseal newspaper’s are not parte proceedings Ex information. documentation, vouchers and reimbursement pro- adversarial traditional consistent spe- discussed whose disclosure materials Coniam, F.Supp. at 617 n. ceedings.” length 18 U.S.C. cifically great and at 3006A(d)(4). Congress’s extended treatment attorneys defendants,” the privacy of the functioning particular process of the 5.01(A) AO. Guide added), (emphasis question “logic” prong]. [the regulations signal judges that the mag- Press-Enterprise 8-9, 478 U.S. at nitude of the intrusion must be weighed (internal quotation S.Ct. 2735 marks omit- against the benefits of disclosure. ted).12 Connolly While contends that both Accordingly, guidelines the law and the prongs of this standard must be satisfied appear preempt, not to but rather to rati- for a qualified First right Amendment fy, presumption a common law of access to attach, public access to at least two courts the information at issue here. recognized qualified First Amend- ment right to CJA materials on the Right C. The Public Access Under the strength “logic” prong alone. See First Amendment Suarez, United States v. Court, In Press-Enterprise Superior v. (2d Cir.1989); Ellis, 92 L.Ed.2d 1 (M.D.F1.1993). F.R.D. As the (1986) (Press-Enterprise II), the Supreme Second Circuit observed Suarez: Court articulated the test for determining It is true that there long is no “tradition when a First Amendment accessibility” to CJA forms. Howev- access attaches to documents: er, is, that is because the CJA itself dealing cases with the claim of a “tradition,” terms of fairly recent de- First of access to velopment, having been enacted in criminal proceedings, our decisions have 1964.... The lack of “tradition” with emphasized two complementary consid- respect to the CJA forms does not de- First, erations. because “tradition of public’s tract from strong interest in accessibility implies the judg- favorable how its funds being spent in the experiences,” ment of we have consid- administration of justice criminal and place process ered whether the and what public amounts of paid funds are to historically open press been to the and particular private attorneys or firms. general public “experience” prong]. [the Suarez, 880 F.2d at 631. lack This of

tradition for criminal proceedings of recent Second, in this setting the Court origin places has intervenors like the Boston traditionally public considered whether Herald in the position awkward of analo- plays significant positive a role gizing the documents or proceedings at grants 12. While the Sixth Amendment guarantees crimi- speech Amendment of and nal right speedy alone, defendants “the press, to a standing and prohibit government trial,” public this amendment is not the summarily closing from courtroom doors right source of the public constitutional of long open which had public been at Connolly’s access to urged financial affidavits the time adopted. that Amendment was by the Boston Herald. Newspa- In Richmond 575-76, Id. at 100 S.Ct. 2814. For this rea 555, pers, Virginia, Inc. v. 448 U.S. 100 S.Ct. son, criminal defendants cannot foreclose 2814, (1980), Supreme 65 L.Ed.2d 973 the public access to their trials and the docu public's Court right established that the of simply by ments submitted waiving therein proceedings access to criminal is rooted in right public their Sixth Amendment to a trial: the First Amendment: guarantees "While the Sixth Amendment to a guaranteeing right In defendant in a criminal case the freedoms such to a as tiróse of tritil, speech press, public guarantee right the it does not First Amendment can the to protecting right compel private be read everyone as the a of trial.” Gannett Co. v. De 368, 382, give meaning Pasquale, to attend trials so as to U.S. 99 S.Ct. explicit guarantees (1979). those .. . [T]he First L.Ed.2d 608 proceeding, we with a criminal tra- nection proceedings materials issue qualified has a can conclude that the analogies accessibility. Such of ditions access to the They right are inevi- of First not decisive. useful but be ap- the com- has been payment forms after grounds on tably assailable of application imperfect, or proved. parison much. In too prove would tradition the Id. at 631.13 to ex- sound reason there is no end the origin Supreme of recent the proceedings precedents, I read the criminal As clude prong First Amendment logic reach of the the the did intend from Court match the lin- they cannot First Amendment simply because limit the reach of the long been that have proceedings that would eage judicial processes only to those Press-Enter- process. the criminal in the efficiency accuracy gains part realize at S.Ct. con- 478 U.S. access. On the prise “sunshine” Newspapers, Inc. v. Vir- trary, Richmond logic prong, Su- explaining the 555, 569, 100 S.Ct. 448 U.S. ginia, that the has recognized Court preme (1980), progeny, see and its L.Ed.2d 973 judicial proceedings access to I, at Press-Enterprise role significant particularly plays 819; Newspaper, U.S. Globe judicial process functioning of that the bene- suggest a whole. Public government and the accruing society from fits trial enhances scrutiny of judicial documents and public access integrity safeguards quality and un- prima facie are assumed proceedings with benefits to factfinding process, Accordingly, as logic prong. der as a society defendant and both the II Enterprise suggests, of Press language Moreover, access ... fos- whole. prong turns on logic satisfaction fairness, thereby appearance ters an public dis- of whether question narrower judicial pro- respect for the heightening purpose of the closure would defeat terms, public inAnd the broadest cess. at issue: judicial process specific pub- permits access to criminal trials as a check serve participate lic to Second, the Court has setting in this essential judicial process upon the public —an whether traditionally considered self-gov- of in our component structure in role positive plays significant ernment. particular process of functioning the the 102 many govern- Newspaper, Although U.S. question. in Globe Suarez, pub- In under operate 2613. best processes ment S.Ct. (2d Cir.1989), the Second imagination little scrutiny, F.2d 626 it takes lic of the benefits kinds of that are some determined that there recognize Circuit Newspa in to- Globe that would be scrutiny operations outlined public government to the CJA A openly. force apply equal if conducted tally frustrated per func- proper process: example is “the appointment classic that system de- jury grand our tioning of reason to persuasive is no Because there jury grand secrecy of upon the pends that openness presumption of ignore the proceedings.” in con- submitted applies to documents oft-recognized the Suarez, observation only petitioned Circuit's the In intervenors monitoring information, of criminal public from benefits attorney payment for access has in the CJA context realized trials are also defendant’s did not seek to unseal well. Nonetheless, case as implications for this important the Second financial affidavits. Press-Enterprise 8-9, 478 U.S. at 106 ... presentence investigation often in- (quoting S.Ct. 2735 Douglas Oil Co. v. volves a broad-ranging inquiry into de- N.W., 211, 218, life, Petrol Stops private U.S. 99 fendant’s limited tradi- (1979)). L.Ed.2d 156 tional rules of evidence.” United States v. Corbitt, (7th Cir.1989). Ninth Circuit echoed this theme in Times States, Mirror Co. v. United 873 F.2d 1210 Confidentiality serves a different func- (9th Cir.1989): tion for accuracy courts. The and fairness Every judicial proceeding, every indeed judicial depends large determinations governmental process, arguably benefits part on the judi- informative value of the public from scrutiny to some degree, cial documents submitted to the court. To openness leads to a better-informed the extent that presen- disclosure of citizenry and tends to government deter reports tence would create disincentives abusing powers officials from gov- defendant, for the government or inde- ... ernment. Certainly, public’s in- pendent parties provide third informa- in self-governance terest prevention tion that would aid the court’s determina- power abuse of official would be tion, recognizing right of access degree served to some if grand jury under the First Amendment could under- proceedings opened. were The same mine process. the sentencing As the Sev- might be said of jury deliberations and enth Circuit observed: “[R]equiring disclo- the internal communications of this presentence sure of a report is contrary court. But integrity because the interest as it adversely would independence of proceedings these affect the sentencing ability court’s to ob- disclosures, by public threatened claims tain data on a confidential basis from the “improved self-governance” and “the accused and independent from sources promotion of fairness” cannot be used as the accused for use the sentencing pro- open an incantation to these proceedings Greathouse, cess.” United States v. public. (7th Cir.1973). (internal omitted). Id. at 1213 citations Finally, government may ask courts to seal The nature and documents that contain degree “procedural information informants, about confidential required frustration” reveal to remove a class of strategies employed by police appre- submitted a criminal criminals, hend case from First Amendment otherwise undermine scrutiny has law objectives. Corbitt, enforcement been well adjudicat- documented by courts the Seventh ing Circuit petitions publicly gov- enumerated the pre- disclose the ernment’s interests in reports maintaining sentence of convicted con- defendants. fidentiality presentence jurisprudence reports: As in this area illus- trates, the three primary parties to every presentence The report will often con- proceeding defendant, criminal the tain information regarding the defen- —the government and the judge differing past dant’s or cooperation future with —have in interests maintaining the confidentiality government. the report may also judicial certain documents. The defen- include conveyed by information infor- dant’s interest is privacy-based, often mants or cooperating codefendants re- in presentence noted the context of re- garding the defendant’s relative culpa- ports: “The criminal bility defendant has a for the for which offense he has strong interest maintaining convicted, in the confi- been and the in- defendant’s dentiality of presentence his or her report volvement in crimes may other which be Accordingly, the disclosure of tion. Especially where investigation.

under information would not stifle eligibility orga- of an CJA a member was defendant the sources, diverse of information from enterprise, dis- flow nized, criminal ongoing report con- presentence in the might as it risk pose a substantial may closure the CJA Form 23 Similarly, text. because defendant.... the against retaliation applicant’s with the solely concerned is widespread disclosure Therefore status, provide and does the financial may obstruct report presentence government infor- medium for investigate exposing ability government’s sensitive law en- revealing or other mants crimes. secrets, has no government forcement the toto, these Corbitt, at 235. the ensuring in confiden- vested interest led that concerns mirror the misgivings affidavits. tiality of these financial jury proceedings grand to shield courts access, (listing n. 8 id. at 232 from Nonetheless, that the majority posits the by echoed cases), been and have since process uniquely is sus- appointment CJA con recognize a declining to courts other “frustration,” ceptible privacy-based presentence access to right of stitutional prospective applicants reasoning that CJA Huckaby, 43 States v. United reports. See court-ap- seeking will be deterred from (5th Cir.1995); 135, 138 United States F.3d prospect that their by counsel pointed (9th Schlette, 1579-81 v. publicly be dis- affidavits financial will Cir.1988). However, defen- indigent criminal closed. incarceration, fines, long facing hefty the disclo- dants the ills associated Of all forego opportu- unlikely de- or both reports, only the presentence sure of out of court-appointed counsel nity to seek implicated interest fendant’s fi- confidentiality of their concern for affida- disclosure of by the In the absence of nancial information.14 developing process vits. Unlike government inter- court or any discernible the court must reports, where presentence confidentiality eligibility est important infor- to retrieve a wide net cast information, that an majority’s holding sources, the CJA multiple mation from privacy, the defendant’s into intrusion primarily on inquiry relies more, “totally frustrates” informa- without the critical provide defendant to that indigent from disclosures defendant reality unfair- argues majority 14. The compromise ability to mount indigent on would choice” ly imposes a "Hobson’s U.S.C. See defendants, defense. effective our decision in cites 3006A(d)(4) delay (directing States, courts § Holden payment information to the disclosure 1968) limit proposition that "defendants for the Cir. undermining trial strat- defendant's against avoid avoidably discriminated are not to be 3006A(e) (granting defen- egy); U.S.C. indigency.” at 278. Id. because of their request reimburse- parte dants an ex forum we confronted discrimination” "avoidable services). Beyond supplemental ment right of the defendant implicated the Holden areas, presumption of specific broad these unburdened an effective defense to mount the A.O. Guide indi- financially disclosure articulated of information the disclosure that, a substantial in the face of cates not be re- would defendants self-sufficient process, indi- appointment the CJA interest in Holden was We ruled that quired to submit. appointed coun- using court gent defendants government from exclude the entitled to requirements subject to disclosure will be indigent de- sel parte proceeding for required ex the relating program to their seeking subpoena under Federal a fendants attorneys that do not 17(b). compensation of their Id. The of Criminal Procedure Rule privately retained apply to defendants Congress’s sensi- language of the CJA reflects counsel. protecting the principle of tivity to this same II, proceeding, Press-Enterprise see particular case ... The trial court 8,106 expands unjustifi- U.S. enjoys leeway considerable in making ably range judicial documents and Thus, decisions of this sort. once the procedures integral process to the criminal balance, trial court has struck the but shielded from First Amendment scru- appellate court will review its determi- view, tiny.15 my Connolly’s privacy con- only nations for mistake of law or abuse cerns do not defeat logic prong of discretion. II, Press-Enterprise qualified and a First added). Id. at (emphasis right of access attaches to the financial affidavits.16 Respectfully, I do not believe that the magistrate judge carefully balanced the II. competing interests this case. The majority states the alternative judge expressly determined that “the Bos- assuming “[e]ven that CJA eligibility ton Herald has no First Amendment or documents were covered a common law federal right common law of access to the access, presumption of we should still af- documents,” and summarily concluded that firm the magistrate judge’s decision to “the intrusion on the of the defen- sealing Connolly’s maintain the dant family and that of if his the docu- application In support materials.” of this ments were released would be as substan- position, majority our cites decision in tial now as it was when the sealing orders Inc., Siedle Invs. 147 F.3d 7 Putnam were By entered.” declining to even ac- (1st Cir.1998), proposition for the knowledge a presumption common law trial enjoys “[t]he court considerable lee- access, the magistrate judge any excluded way in making decisions of this sort.” Id. competing public interests from the deci- Siedle, at 10. Yet in we stressed that calculus, sional and denied the Boston sealing these determinations are only enti- Herald the rigorous balancing determina- tled to deference if they reflect a careful tion it is entitled to once the common law balancing of the competing interests at right Journal, stake: attaches. See Providence 293 F.3d at 11 (“[OJnly the compel- most party requests order, or, [W]hen a a seal case, ling can justify reasons objects this non-disclosure of to an unsealing order, a court carefully must balance records that come within scope competing interests that access.”). are at stake in common-law far, category Thus grand is limited to replete documents. The caselaw is with in- 15. jury proceedings, Enterprise see Press stances in which required courts have that a deliberations, jury U.S. at applied statute be in a manner that will avoid Mirror, see Times 873 F.2d at internal See, e.g., First Amendment conflict. communications, id.., court presen- see Juveniles, States v. Three 61 F.3d 86 Cir. Corbitt, reports, tence see 879 F.2d at 224. 1995) (adopting narrowing construction of Act); the Federal Juvenile Delinquency "[cjonstitutionaliz- majority states that Douglas, Co., McDonnell Publishing Pulitzer ing question displaces ... poli- (8th Cir.1988) (construing cy courts,” by Congress established and the Wiretapping Federal requiring Statute as "renderfing] has the effect of the entire judges to conduct a First Amendment balanc- discretion-based framework in the A.O. Guide ing exercise to intercepted determine whether contrary, To recogniz- unconstitutional.” conversations included ing qualified in court First Amendment ac- constrains, disclosed). framework, publicly should be cess within the CJA judges discretion of who are asked to seal juxtapose against court decided to the appli- suggests, Journal As Providence Huckaby’s seamy rhetoric on behalf the presumption law of the common cation reality of his tax avoidance. heavy a burden on the imposes judicial documents. seeking to seal party upheld at 140-41. have also the Id. We Indeed, law stan- applying the common per- containing release of court documents ju- dard, portions of courts have unsealed financial information similar to the sonal containing arguably dicial documents balancing materials at issue here after than the finan- information more sensitive the common law. public interest under 23 af- by the CJA Form required Financial, cial data F.2d at 404. See Standard Kaczynski, v. fidavit. United States may Form 23 financial information (9th Cir.1998), the Ninth 154 F.3d 930 than present weighty privacy less concerns court’s decision upheld district Circuit pre-sentence evaluations or re- psychiatric of Theodore portions redacted to unseal Moreover, ports. government since the report psychiatric competency Kaczynski’s theoretically challenge judge’s deci- may guilty plea the noto- after he entered see, case, every counsel in appoint sion to balancing “In case: rious “Unabomber” Harris, 660-62; Hickey, e.g., 707 F.2d at parties, the interests of the competing 1207, applicants cannot ar- F.Supp. did not abuse its discretion. district court they legitimate expectation that gue that, to the unredacted It determined in the financial informa- privacy the media’s need for part report, of the tion, entitling protect them to their finan- outweighed Kaczynski’s disclosure through- cial status from disclosure Similarly, in Unit- Id. at 932. interests.” sure, process. To be out the (5th Huckaby, 43 F.3d 135 ed States applicants should privacy concerns of CJA Circuit, Cir.1995), acknowl- the Fifth after by the weight judge. their due be accorded ordinary confidentiality edging that “[t]he parties too the concerns of third So should reports supported presentence may to the defendant whose financial ties considerations,” upheld policy powerful unwarranted disclosures. expose them to of defendant’s the trial court’s disclosure effectively can be ad- But concerns these his conviction report after pre-sentence redactions of by narrowly tailored dressed at 138-140. The tax evasion. Id. They justi- do not financial affidavits. report reflected an exhaustive “lengthy” com- public’s shrift to the fy giving short financial rec- accounting of defendant’s disclo- prohibit in order to peting interest Huckaby had ords, and concluded best, magistrate entirely. At sure income tax file state and federal failed to consideration to judge gave inadequate and his business. for both himself returns financial affi- Connolly’s public’s interest district agreed court with the Id. The davits; suggests strongly more the record strong public interest judge that consid- interest received no report warranted disclo- presentence Therefore, agree I all. cannot eration at magis- sure: to defer to the the decision discretion, even judge’s trate exercise hoped that the release The court assumption of a common majority’s on the explain the report] would [presentence the financial of access to presumption law prosecution so as Huckaby’s basis affidavits. that this any shadow of doubt eliminate motivated. racially was proceeding III. to fester bitterness Rather than allow at issue bear eligibility forms of Huc- The CJA community as a result within the 1) sentence, judicial documents: every hallmark of plea and kaby’s guilty the eligibility proceeding potentially occurs instance. right the absence of this 2) setting, within an adversarial judge access, judges have nearly unlimited dis- 3) plays outcome, a critical role in the cretion to shield CJA form 23 affidavits heavily court relies on the financial affida- from Judges disclosure. exercising 4) decision, vits to reach its the out- ever, rarely, this discretion will if reject an come of the proceeding is substantive applicant’s privacy personal interest fi- applicant’s determination of the Sixth nancial information to vindicate a to counsel. These con- interest unbacked the common law or siderations alone suffice to establish the First Amendment. presumption common law of access to the I importance do not minimize the forms. Because applicants’ affidavits do not fall within the privacy narrow CJA interests in this category judicial documents whose dis- financial information. These interests de- closure would frustrate the corresponding careful serve consideration in the context judicial process, a First Amend- of a constitutional balancing analysis. ment of access attaches to these doc- There no analysis was such here. There- uments as well. fore, I respectfully disagree with the ma- jority’s Instead, decision to affirm.

Under I precedent, well-established a de- fendant’s would remand this interests alone case to the district cannot preclude the attachment court with public right instructions to conduct of access to proper the first balancing analysis. Plaintiff, LEWIS,

Murphy A. Appellant, Defendant, BOSTON, CITY OF Appellee.

No. 02-1495. Appeals, Court United States

Case Details

Case Name: United States v. Connolly

Court Name: Court of Appeals for the First Circuit

Date Published: Feb 26, 2003

Citation: 321 F.3d 174

Docket Number: 02-2340, 02-2098

Court Abbreviation: 1st Cir.