The U.S. Attorney's Office, responding Tuesday to El Paso Media Group's request that documents and hearings in the El Paso public corruption cases be opened, promised it will seek to unseal more documents in eight cases that are now sealed and suggests that future hearings and documents may be opened to the press and public as well.

In addition, the government asks Federal District Judge Frank Montalvo to grant intervenor status to El Paso Media Group in the corruption cases and eight guilty pleas grouped together under the case of John Travis Ketner, who was the first to plead guilty to conspiracy, wire fraud and bribery charges in the FBI’s ongoing investigation in El Paso.

But, in doing so, the government also asks the court to deny Media Group's motion to open future hearings and unseal documents in the cases of Ketner and seven others who have pleaded guilty to corruption charges since June 2007 because those issues will be rendered moot by government actions to come.

Represented by Jim Harrington of the Texas Civil Rights Project in Austin and the Paso Del Norte Civil Rights Group, El Paso Media Group, doing business as Newspaper Tree, filed suit in Montalvo's court last month. [aug. 6, 2008, npt files motion to open corruption court]

El Paso Media Group and Newspaper Tree cited the First Amendment, the tradition of open court proceedings and legal precedents in challenging the Montalvo’s closed hearings, secret court dockets and sealed pleadings.

As a result, Montalvo ordered the U.S. Attorney’s Office to respond to the El Paso Media Group’s motion.

In its response, the government points to July’s open guilty plea hearing in the case of a former El Paso County district clerk employee, Fernando Parra, in arguing that Newspaper Tree's request for a court order to open future hearings is moot, apparently because the government intends to open those hearings. [Fernando Parra, July 15, 2008] [Fernando Parra hearing, July 15, 2008]

The government notes that many of the issues raised by the Media Group had been previously been raised by El Paso activist Carl Starr in a lawsuit he filed in March.[march 26, 2008 npt background] [motion to intervene]

Montalvo denied Starr’s request to intervene in May but agreed to open some of the previously sealed documents in the cases of eight people who had pleaded guilty to corruption charges. [may 28, 2008, corruption court stays closed, but judge offers new information ]

Starr regarded his effort a success because of the judge’s action, and he said the same about Tuesday’s response by the government to El Paso Media Group’s lawsuit.

“They’re going to do what you requested, but they’re doing it on their own,” he said. “They’re asking the judge to deny Newspaper Tree’s motion to open the files, but they’re going to do it anyway.”

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Washington, said, “Let's hope this is a sign that the courts and prosecutors in El Paso have finally realized that an important component of the justice system is the ability of citizens to find out what's going on in the publicly funded court system."

In a footnote in Tuesday’s response, the prosecution says more court records that were previously deemed too sensitive to disclose now will be opened.

“By separate motion, the government will seek to enlarge the court’s previous disclosure by moving to unseal redacted versions of the transcripts to the sealed hearings since the purpose for the closed proceedings in the eight hearings has not been ameliorated,” the footnote states.

The government cited the fact that Parra’s hearing was posted on the court’s public docket and open to the press and public in late May.

Although Parra’s case was distinctly different from the eight previous cases in that he had been arrested and jailed on a charge of possessing child pornography, Parra wound up pleading guilty to corruption charges in an open hearing. The pornography charge was reduced to a far less serious indecency offense.

The government suggests that future hearings in the corruption cases may be open as well and that there now is no reason for public concern about the secrecy issues raised by Media Group.

“The concern of the possibility that all proceedings in the future will exclude the public and media is contradicted and rendered moot by the Parra plea,” the government’s response states.

Last week, former El Paso school trustee Salvador M. “Sal” Mena, became the first defendant in the public corruption investigation to be arrested on charges handed up in a sealed indictment Aug. 14 by a special federal grand jury in El Paso. {a href="http://newspapertree.com/culture/2804-former-school-trustee-sal-mena-indicted-by-federal-grand-jury" target="_blank">"former school trustee sal mena indicted by federal grand jury", Aug. 29, 2008]

Mena’s appearance on those charges was conducted in an open hearing Friday.

The government, in its response Tuesday, notes that Montalvo was wrong when he stated in May that the government had orally requested that the eight guilty plea hearings be closed to the public.

Montalvo made that statement in his response to Starr’s lawsuit seeking intervenor status and open hearings in the public corruption cases.

Various legal scholars, former federal prosecutors and practicing attorneys consulted by Newspaper Tree earlier this summer questioned the secrecy of court proceedings the public corruption investigation being conducted by the FBI and U.S. Attorney Johnny Sutton’s office. [may 12, 2008, closed courts, public corruption]

What surprised them was not only the use of secret dockets and closed hearings, but also the lack of explanation for it.

Montalvo, in a memorandum of opinion responding to Starr’s motion and, apparently, to issues Newspaper Tree raised, defended the secrecy measures as necessary to protect the identity of witnesses and suspected but uncharged co-conspirators in the FBI’s wide-spread investigation.

Montalvo also said the government and defense lawyers had requested the confidential hearings and sealed court filings protect the integrity of the investigation.

“The government made an oral motion at each plea hearing for closure of the proceedings,” Montalvo stated.

But the U.S. Attorney’s office refutes Montalvo’s assertion in another footnote in Tuesday’s response.

“A review of the transcripts of the eight closed plea hearings reflects the government made no such motions,” the footnote states.

“That’s either a mistake or a lie – eight times over,” Starr said. ”Now that he’s caught in this lie or this mistake, that is the reason the U.S. attorney is going to move to unseal those documents.”

Montalvo consistently has declined to speak on the issues involved in the public corruption cases, and his office restated his position today.

“The judge doesn’t speak to the press,” a woman in his office said.

The government’s response concludes, stating, “The issues remaining are the unsealing of the transcripts of the closed proceedings, which will be addressed in the government’s motion to unseal same, and the redaction of certain portions of the documents and transcripts.

“While the redaction issue may be disputed, it is a legal dispute which has been and can be contested by pleadings. No hearing is necessary or required.”

With that, the government asks Montalvo to grant standing to Newspaper Tree as an intervenor but deny Media Group’s request for a hearing on the issues and for orders to unseal court documents and open future hearings in the public corruption investigation to the press and public.

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To reach David Crowder, write to dcrowder@epmediagroup.com or call (915) 351-0605

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