MFIA Clinic prepares amicus brief in Maryland First Amendment case

Note: A version of this post originally appeared on the Media Freedom & Information Access Clinic website.

The Floyd Abrams Institute for Freedom of Expression at Yale Law School recently filed an amicus brief in the United States Court of Appeals for the Fourth Circuit to support a First Amendment challenge to a Maryland law that prohibits the broadcasting of audio transcripts that the state’s courts routinely make of criminal proceedings.

Section 1-201 of Maryland’s Criminal Procedure Code states that individuals may not “record or broadcast” criminal proceedings. Adopted at the advent of portable television camera technology, the law sought to prevent the televising of ongoing trials. It does not prohibit the Maryland judiciary from making audio transcripts of criminal proceedings, and these are routinely made available for inspection in the public court files. Maryland, however, has recently taken steps to enforce the decades-old law against journalists who have used the publicly available recordings in documentaries and podcasts, including the acclaimed podcast “Serial.”

The Abrams Institute brief, prepared by the Media Freedom & Information Access (MFIA) Clinic at Yale Law School, asserts that a blanket ban on the broadcasting of audio recordings — “made by Maryland trial courts, maintained in public court files, and expressly made available to the public by court rules” — violates a First Amendment right of access that attaches to judicial proceedings and records.

The brief states that the district court failed to enforce the access right based on its misreading of a 1978 Supreme Court ruling in Nixon v. Warner Communications that declined a record company’s request for copies of Oval Office recordings made by President Richard M. Nixon that were used in the criminal prosecution of several of his top aides. The district court read Warner Communications to hold that audio recordings in the official record of a criminal prosecution are subject only to a common law access right, which the Maryland legislature had properly restricted through its broadcast ban.

The brief explains that Warner Communications is not so broad. The Supreme Court concluded that the common-law right of access to the specific judicial records at issue had been abrogated when Congress passed the Presidential Recordings Act shortly after Nixon resigned from office, but the court did not squarely reject a First Amendment right of access to judicial records. That opinion holds more narrowly that the First Amendment confers no access rights on the press “greater than those of any other member of the public.”

Just two years later, in Richmond Newspapers, Inc. v. Virginia (1980), the Court held for the first time that the First Amendment’s express protections — free speech, freedom of the press, and the right to petition the government — carry with them an implied right of public access to certain government proceedings and records. The Supreme Court subsequently held, twice, that this constitutional access right applies to transcripts of proceedings in criminal prosecutions. The amicus brief contends that this constitutional protection extends to Maryland’s audio recordings.

The brief further explains that the Maryland law was intended “to bar cameras from the courtroom and prohibit electronic media coverage of ongoing proceedings.” While protecting the integrity of court proceedings and defendants’ fair trial rights are compelling governmental interests that may justify a ban on broadcasting ongoing proceedings, they do not justify a blanket ban against the dissemination of audio recordings of long-completed prosecutions. At a minimum, the brief contends that the First Amendment requires a case-by-case review before the state can prohibit the broadcasting of an audio transcript of a completed proceeding.

The amicus brief reinforces the primary legal argument advanced by the documentarians pursuing the appeal, who contend that the law constitutes an impermissible restriction on their right to publish true newsworthy information. As the MFIA brief explains, “[t]he affront to the First Amendment is compounded here because Maryland is not prohibiting the publication of just any true newsworthy information,” but rather, “Maryland is prohibiting the dissemination of judicial records that are themselves subject to an affirmative right of public access — a qualified First Amendment right to inspect, copy, and disseminate Maryland’s audio recordings.”

Irvine’s Press Freedom and Transparency students assist investigative journalist for Netflix series

Above Photo: Prof. Susan Seager, IPAT client Garrett Therolf and IPAT student Betty Kim at a screening of The Trials of Gabriel Fernandez.

Note: A version of this post originally appeared on the Irvine IPAT Clinic’s website.

A new Netflix docuseries, The Trials of Gabriel Fernandez, was made possible in part by the work of UC Irvine School of Law students. The students have worked for more than a year to unseal court records for series co-producer Garrett Therolf, a staff writer at UC Berkeley’s Investigative Reporting Program.

Therolf used the court records in the Netflix series to bring national attention to the repeated failure of the Los Angeles County Department of Children and Family Services to protect chronically abused children from being killed by their parents and caregivers.

The law students won disclosure of confidential juvenile court records for two child abuse victims, Anthony Avalos and Noah Cuatro, whose deaths are investigated by Therolf in the final episode of the Netflix series.

The docuseries, directed by Brian Knappenberger, was released on Netflix on February 26, 2020. The docuseries was Netflix’s most popular original series during its launch, according to the Los Angeles Times.

The students work under the supervision of Susan Seager, who directs the Press Freedom and Transparency practice in the Intellectual Property, Arts, and Technology Clinic at UC Irvine School of Law.

David Barstow, former New York Times investigative reporter who is now head of investigative reporting at the UC Berkeley Graduate School of Journalism, said, “This clinic is a godsend to journalism in California. Without access to public records, reporters too often can’t get to the truth and citizens too often are left in the dark. We have come to think of Susan and her amazing law school students as our SWAT team, always at the ready to leap into the never-ending battle for transparent, accountable government.”

“Susan’s team has been our indispensable partner as we pry loose details about systemic failures that harm, and sometimes kill, abused and neglected children,” Therolf said. “The agencies that serve these children are often built on the concept of secrecy, and we would be dead in the water without the UC Irvine Law clinic’s tireless work to shine a light on them.”

The final episode of the Netflix series focuses on the court files obtained by the law students, which show how Noah Cuatro, age four was allegedly killed by his parents in July 2019 and how Anthony Avalos, age 10, was allegedly killed by his parents in June 2018.

The students’ work for Therolf is not over. The students continue to seek juvenile court records for Therolf to reveal how other children were fatally abused while under the care of the Los Angeles County Department of Children and Family Services.

Second-year student Emily Horak is working to obtain more juvenile court records about Noah Cuatro. “It was a great experience to represent Therolf in juvenile court,” she said. “When requesting the records, our team felt the urgency of the matter. Maybe the insight from the records could prevent the death of another innocent child.”

Hedyeh Tirgardoon, a second-year student, is in the process of filing a motion to unseal confidential juvenile court records about two sisters who were allegedly killed by their mother. “Working with zealous advocate Garrett Therolf allows our clinic to be the voice for these children and for all children who are victims of alleged neglect and abuse. We refuse to turn a blind eye,” she said. “By holding government agencies accountable for their failure to protect children under their care, we hope to usher in a new era of transparency, responsibility, and protection to prevent atrocities like the deaths of Noah Cuatro, Anthony Avalos, and Gabriel Fernandez. Their deaths were preventable. It is as simple as that.”

In February, Betty Kim, also a second-year student, filed a motion in the Los Angeles Superior Court criminal division asking a judge to unseal the secret transcript of the grand jury that indicted Noah Cuatro’s parents for allegedly torturing, sexually abusing, and killing Noah. The motion is pending.

“Advocating in court on behalf of a journalist reinforced for me the longstanding importance of the First Amendment, as well as the press’s fundamental role to obtain and deliver prompt news to the public,” second-year law student Kim said.

In addition to Tirgardoon, Horak, and Kim, the law students who have worked for Therolf include Emily Asgari, Sachli Balazadeh-Nayeri, Nia Bush, Amy Chi, Cassie Doutt, Shanxi Feng, Henry Glitz, Kennedy Holmes, Jacob Karim, and Anthony Mendez.  The law clinic provides free legal services to independent journalists, documentary filmmakers, open government advocates, and start-up businesses, among others.

“The students have done a fantastic job representing Garrett and winning court orders releasing secret government files,” Seager said.

The Netflix series focuses on the criminal trials of Gabriel Fernandez’s mother, Pearl Fernandez, and her boyfriend, Isauro Aguirre. Both were charged with torturing and killing Fernandez’s eight-year-old son, Gabriel. Aguirre was convicted and sentenced to death, while Fernandez pleaded guilty and agreed to life in prison without the possibility of parole.

To win court orders releasing the juvenile court records, the students employed a California law (Welfare & Institutions Code Section 827(a)(2)) that requires juvenile courts to disclose confidential court records about fatally abused children when the children are under the jurisdiction of the juvenile court at time of death.

To seek the grand jury transcript, the students are relying on California Penal Code Section 938.1(b), which provides that post-indictment state grand jury transcripts “shall” be unsealed unless the defendant can show a “reasonable likelihood” that 12 unbiased jurors cannot be found. The clinic has filed a motion asking a Los Angeles Superior Court judge to unseal the secret grand jury transcript in the murder case against Noah Cuatro’s parents, who were indicted for allegedly torturing, sexually abusing, and killing Noah.

The law students have worked on the following cases for Therolf:

In re Anthony Avalos. Anthony Avalos was 10 years old when he was rushed to the hospital and pronounced dead in June 21, 2018 with a fatal skull fracture and signs of neglect and abuse. In 2019, students filed a petition on behalf of Therolf in Los Angeles Superior Court’s juvenile division, seeking disclosure of Anthony’s confidential juvenile case file to find out the circumstances of his death while under the protection of the Los Angeles County Department of Children and Family Services. On July 24, 2019, the court issued an order unsealing Anthony’s file. On September 3, 2019, Therolf published an expose about Anthony’s death on the front page of the Los Angeles Times. Anthony’s case is discussed in the sixth episode of the Netflix docuseries, The Trials of Gabriel Fernandez.

In re Olivia Apai. Olivia Apai was 10 months old when she died on June 24, 2019. The Los Angeles County Department of Family and Child Services said in a press release that she died of suspected maltreatment while in the custody of a parent or legal guardian. Students filed a petition to unseal Olivia’s juvenile case file on behalf of Therolf in Los Angeles Superior Court’s juvenile court division. On January 23, 2020, the court issued an order granting Therolf’s petition and ordering release of her juvenile case file.

In re Noah Cuatro. Noah Cuatro was four years old when he was allegedly killed by his parents, Jose Maria Cuatro Jr. and Ursula Elaine Juarez, on July 6, 2019. In September 2019, students filed a petition with the Los Angeles Superior Court juvenile division on behalf of Therolf, seeking disclosure of Noah’s juvenile case file. In March 2020, the court indicated that it had granted Therolf’s petition and ordered disclosure of Noah’s file, but the court has not released its order or the file as of this writing. Noah’s case was discussed in the sixth episode of the Netflix docuseries, The Trials of Gabriel Fernandez.

People v. Juarez. In February 2020,students filed a motion in Los Angeles Superior Court’s criminal division, asking the court to unseal the transcript of the grand jury proceedings that resulted in the murder and torture indictment of Noah Cuatro’s parents, Jose Maria Cuatro Jr. and Ursula Elaine Juarez. The motion is pending. Noah’s case was discussed in the sixth episode of the Netflix docuseries, The Trials of Gabriel Fernandez.

In re Camille Hickman and In re Jaliya Hickman. Seven-year-old Jaliya Hickman and her sister, one-year-old Camille Brewster Hickman, died on October 19, 2017. Their tiny unclothed bodies were dusted with a white powder when they were found near a liquor store in San Pedro. In March 2019, students filed a petition in the Los Angeles Superior Court’s juvenile division on behalf of Therolf, seeking disclosure of the Hickman sisters’ juvenile case files. On July 24, 2019, the court issued an order granting the release of their juvenile case files to Therolf. Students are filing a second petition asking the court to release more of the file.

ASU First Amendment Clinic wins argument to unseal documents in high-profile trial

This post originally appeared on Arizona State University’s ASU Now site on August 26, 2019.

The trial of Scott Warren took center stage this summer in the nation’s passionate debate over immigration. Warren, a humanitarian aid worker with the group “No More Deaths,” was facing felony charges — and up to 20 years in prison — for aiding immigrants in the southern Arizona community of Ajo. That assistance included providing water and other basic assistance and, according to the federal authorities, helping them avoid detection. To government prosecutors, he was a felon aiding and abetting in illegal immigration. To his defenders, he was simply a compassionate Samaritan following a moral calling to help those in desperate need.

But despite the national spotlight and intense media scrutiny, little was known about the investigation that had led to Warren being charged in the first place. A journalist with The Intercept had hit a roadblock trying to gain access to sealed court documents, and on June 11, jurors were unable to agree on a verdict and the case ended in a mistrial. For the First Amendment Clinic at the Sandra Day O’Connor College of Law at Arizona State University, it was the perfect case.

Answering the call

The clinic was launched in fall 2018 with the mission of helping to protect and advance freedom of the press and train future lawyers on First Amendment issues. When Executive Director Gregg Leslie received the call for help from a longtime associate at The Intercept, there was no hesitation.

“It was the perfect opportunity for us, so we jumped at the chance,” said Leslie, himself a former journalist.

The case was not only unfolding in Arizona, in federal court in Tucson, but Warren had been a faculty associate in ASU’s School of Geographical Sciences and Urban Planning. Faculty associates are hired on a course-by-course basis.

The work began, with neither the clinic nor The Intercept knowing exactly what they might uncover.

“When we talked about these documents, all we knew is that something was attached to a motion to dismiss, and that it involved conversations, probably, among Border Patrol agents,” Leslie said, adding that when somebody is prosecuted for a crime in federal court, there should be little to no secrecy surrounding the details of the investigation.

“There were allegations that the Border Patrol was trying to go after somebody because he was providing water and other assistance to people who might otherwise die as they were crossing a desert,” Leslie said, underscoring the passion that surrounded the case. “And, of course, the point other people would make is that that crossing into the U.S. without documentation is itself illegal, and that’s why the government is going after them. But Scott Warren had this fundamental belief that he could not stand by and watch people die in the desert. So if he was being targeted for that belief, and he was being prosecuted, it was important to know exactly what the Border Patrol did and didn’t do leading up to the arrest.”

The trial was approaching when the summer semester began. Ryan Bailey, one of the clinic’s summer students, would soon be playing a key role.

Students can be provisionally licensed to argue in state court if they’ve taken two semesters of law school. But an extra semester is required for federal cases. Ryan was the only student who fit that criteria.

Other students worked with Bailey on the briefing and all the research that went into it, but if they were granted oral argument on the motion to unseal the documents, he would have to be the one to argue before U.S. District Judge Raner Collins.

Bailey welcomed the challenge.

“I hadn’t taken a First Amendment class, so I was learning and having to apply what I was learning at the same time,” he said. “Thank goodness for Professor Leslie, though. He’s amazing and can always answer any question.”

The argument to unseal

In federal criminal cases, the Brady Rule and the Jencks Act govern most discovery issues. Under the Brady Rule, prosecutors are required to turn over potentially exonerating evidence to the defense at trial. And the Jencks Act covers incriminating evidence, requiring that prosecutors turn over verbatim statements or reports made by witnesses — but that is only required to be turned over after the witnesses have testified.

To speed things up, evidence is often shared in advance, as was the case in the Warren trial. And at the prosecution’s insistence, the two sides entered into a nondisclosure agreement to keep that evidence sealed; otherwise, the prosecution was going to be less forthcoming with disclosures.

But as Leslie points out, the First Amendment guarantees the public the right to access the information, and the government must provide a compelling reason to seal such documents. A nondisclosure agreement doesn’t supersede the public’s First Amendment rights. But it’s not uncommon for attorneys, and sometimes judges, to be mistaken on the issue.

“That comes up in a lot of cases in a slightly less formal context where a party will turn over this material to the other party and expect it to be kept confidential, and they incorrectly assume the right to confidentiality” Leslie said, noting that magistrate judges, not Collins, had been involved in the initial decision to seal the documents. “So in that sense, it wasn’t that surprising that the prosecution in this case made that argument. But it’s problematic.”

Leslie says every case is different, so there’s no textbook approach for the clinic’s students to follow.

“You have to do research, begin to formulate your arguments, then do more research and build a strategy as you go,” he said. “There is no real lesson plan to follow in a clinical case like this.”

Oral arguments were made before Collins on July 9. Bailey had been in a federal courtroom before, as an extern for U.S. Magistrate Judge Deborah Fine, but never in a situation like this.

“Normally when you’re in federal court, there’s a couple of people on defense, a couple people on the plaintiff side, some of the court people, and that’s it,” he said. “But for this, it was a pretty full courtroom. I knew my argument backward and forward and I knew the cases, but still, it was a little bit nerve-wracking.”

The prosecution’s argument was simple: The two sides had entered into a nondisclosure agreement, so the documents should remain sealed. Bailey countered that without a compelling reason to keep those documents sealed, the two sides did not have the right to strike an agreement to keep that information from the public.

Bailey thought he was on solid legal ground and that the prosecution had not made much of a counter-argument.

“I was pretty confident,” he said. “You never know how things will go, but I was confident that we were on the right side of the argument.”

Collins made his ruling three days later, on July 12, agreeing with Bailey that the government’s request to maintain the nondisclosure agreement could not be reconciled with the public’s right to know.

It was a big win for the media, as the Arizona Republic, the New York Times, the Washington Post, CNN and the Associated Press had also signed on as clients of the clinic in the pursuit of the sealed documents. And it was a big win for the First Amendment Clinic and Bailey, the third-year law student practicing with a provisional license.

“It was pretty amazing,” Bailey said. “I was smiling ear to ear. I called my parents. I don’t think these opportunities happen very often for law students, especially in federal court.”

The documents were made public on July 19, outlining the more than eight-month investigation that led to Warren’s arrest. The Intercept and other media outlets published detailed accounts of the investigation, allowing the public to see how and why Warren was arrested, and how the federal government allocated its resources.

And that, Leslie says, demonstrates how critical public access is to a free and democratic society.

“We’re talking about an incredible power of the law enforcement apparatus, with the courts able to deprive people of their liberty,” he said. “And they’re doing it in the name of the people. So if that’s happening, it’s essential that anything that the government relies on in depriving someone of their liberty be public so that we know exactly how the government is acting in our name.”

And if there is no oversight or accountability, he said, corruption will follow.

“We just know that,” he said. “We know that from how human institutions work. Special interests will be favored or certain interests will be favored over others, and we won’t get to know about it. So you really need constant public oversight, to keep the government accountable. And that’s essentially what these cases are about.”

Thankful to be at ASU Law

For Bailey, it was the latest twist in an academic journey that initially took him to Arizona Summit, a downtown Phoenix law school that lost its accreditation with the American Bar Association in July 2018 and closed shortly thereafter. Upon transferring to ASU Law, he was astounded by the contrast.

“It’s beyond comparison,” he said. “Just so many more opportunities. Especially opportunities like this, the First Amendment clinic and the externships. You learn about the law in the classroom, but you need to learn how to apply it as well. And without those kinds of opportunities, you’re really not prepared to be an attorney.”

Leslie said that in addition to giving students like Bailey the knowledge and experience to be successful, the clinic has an expansive mission to protect all elements of the First Amendment.

“We want to be involved in anything affecting the First Amendment, whether it’s this kind of public accountability, through open-records requests, defending libel cases or defending protesters,” he said. “It’s a broad mandate, but it essentially all comes down to the fact that we want people to feel free to exercise their First Amendment rights.”

Bailey said he can’t recommend ASU Law, or the First Amendment Clinic, highly enough.

“ASU Law is one of the best programs in the country,” he said. “The professors are very knowledgeable, and you’re surrounded by smart students who challenge you. So you just learn more in that environment. And as far as the First Amendment Clinic, I was able to get a comprehensive experience, with all the research, writing and talking to clients. I never imagined that I’d be arguing something in federal court.”

Yale MFIA Clinic’s stand against ‘secret law’ unseals court opinion

The Media Freedom and Information Access Clinic (MFIA) at Yale Law School has prevailed in an important skirmish in the ongoing battle against “secret law.”

Acting on behalf of New York Times national security reporter Charlie Savage, MFIA convinced the United States Court of Appeals in Washington, D.C., to make public previously sealed portions of an opinion issued last year in a case filled with many unusual twists and turns.

The issue involved the classified portions of a May 2018 judicial opinion in Doe v. Mattis that the court sealed from public inspection. The redactions were so extensive that it was impossible to determine the court’s basis for rejecting the government’s theories about executive branch power in the case. MFIA argued that providing a ruling while withholding the court’s legal reasoning violates the public’s First Amendment right of access to judicial records.

The reliance on redactions to remove classified facts created a form of secret law because it concealed the legal rule the court used to determine their reasoning in the case, says MFIA legal fellow Charles Crain.

“How can you have a society where people don’t know what the law is?” asked Crain. “The very notion of ‘secret law’ is repugnant to our constitutional form of government and is prohibited by the First Amendment.”

Times reporter Savage had covered the case extensively as it unfolded, and found the court’s redactions troubling. Doe v. Mattis has potentially far-reaching implications for the Fifth Amendment rights of Americans who have dual-citizenship status with another country. The case involved a dual U.S./Saudi citizen who was captured while allegedly fighting for ISIS in a Syrian combat zone and was turned over to the U.S. government, which held him in an Iraqi detention facility for over a year with no charges brought against him.

The case presented many thorny legal issues, including whether the U.S. government could forcibly hand over a U.S. citizen to the custody of another country against his will. The effort by the American Civil Liberties Union (ACLU) to defend the rights of the citizen/detainee, initially referred to as John Doe, itself raised legal issues because the detainee had not asked for their representation. The broader implications of the case concerned the extent of the U.S. government’s national security powers. It raised the question of whether a U.S. citizen caught on the battlefield of a foreign war, for which U.S. involvement had never been approved by Congress, could nonetheless be deemed an enemy combatant. Would he be subject to wartime military punishment, or must he instead be processed through the criminal justice system?

The ACLU initially filed a habeas corpus lawsuit in Washington, D.C. on the detainee’s behalf. After winning court approval to proceed, the government was prevented from transferring the detainee to a Saudi prison. The Court of Appeals agreed with the ACLU that a citizen could not be forcibly handed over to a foreign government against his will with no criminal charges against him pending there.

The Court of Appeals opinion, however, was so heavily redacted that it was entirely unclear why the government’s claim of authority to force the detainee’s transfer was rejected. When most of the classified facts about Doe became public — including his dual U.S./Saudi citizenship, that his real name is Abdulrahman Ahmad Alsheikh, and his eventual release to the nation of Bahrain – MFIA moved to unseal the court’s opinion to prevent the creation of “secret law.”

According to Times reporter Savage, there is real value in revealing the court’s reasoning in this case. Portions of the government’s argument to the appellate court contended that U.S. citizens with dual citizenship have fewer rights than sole-U.S. citizens in certain contexts, and knowing why the court rejected this position may have important implications for future cases. The Doe v. Mattis opinion also may shape the government’s own understanding of its wartime powers. The legal basis for resolving such important issues should not be concealed from the public.

Savage credits “the vision and hard work of the MFIA clinic at Yale Law School” with this success in the fight against secret law.

By Leah Ferentinos