May 12, 2008
Two former U.S. attorneys as well as other former federal prosecutors, defense lawyers and legal experts say they never have seen the likes of the public corruption investigation being conducted in El Paso by the FBI and U.S. attorney’s office.
What sets this investigation apart, they say, are the unusual closed hearings in the court of Federal District Judge Frank Montalvo and his court’s secret dockets.
The closed hearings and secret dockets have offered the legal community and public no hint -- much less a glimpse -- of scheduled hearings on guilty pleas or other court proceedings related to the investigation.
For the El Paso news media, finding out about the hearings is a matter of luck or persistence, which requires staking out the courthouse for entire days to see who goes in.
When news reporters or others have learned of hearings in progress and attempted to enter Montalvo’s court, they have found access blocked by an officer.
“Reporters are never allowed inside the courtroom for those hearings. They don’t even tell us what’s going on. They just say we can’t go back there,” said former El Paso Times reporter Tammy Fonce, who worked the courthouse beat until she left the newspaper last month.
A court docket is the public schedule of case filings, hearings, trials or other proceedings that courts maintain to let lawyers and other interested parties know what is coming up before a particular judge and when. The federal courts keep their dockets online and on paper at the federal courthouse.
For reasons that have not been made clear, Montalvo’s public docket has listed none of the hearings in the public corruption investigation since the first guilty pleas were entered in his court by Travis Ketner nearly a year ago.
Also sealed are the plea agreements that Ketner and other defendants have arranged with the government.
Keeping dockets secret and hearings closed have proven to be controversial practices nationally, but private defense lawyers who practice in the federal courts of the Justice Department’s Western District of Texas have been unwilling to criticize the practice openly. [background]
Newspaper Tree contacted more than a dozen defense lawyers, scholars, First Amendment experts and the U.S. Attorney’s office in an attempt to explain the issue. The U.S. Attorney’s office declined to comment in detail, and almost everyone else contacted –- even those not familiar with the specifics of the El Paso case -– raised questions about the use of a secret docket and closed hearings and records.
In addition, there is some case law that appears to go against closed court proceedings in all but extreme cases, and experts said the balance in the U.S. justice system leans toward greater, not less, transparency.
”Why all the secrecy?”
David Iglesias, the former U.S. attorney for New Mexico, recalled that his office did request that a judge seal the guilty pleas of witnesses cooperating in the corruption investigation of former state Rep. Manny Aragon but never sought to close a hearing or court docket.
“The only area I’m aware of where it’s routine is in national security cases,” said Iglesias, whose book, “Injustice” is due out soon describing the circumstances surrounding his dismissal by former U.S. Attorney General Alberto Gonzalez in 2006.
So far in El Paso, seven people – four former city, county and school district officials and three individuals whose companies sought government contracts – have voluntarily pled guilty to charges relating to conspiracy, bribery, wire and mail fraud in closed hearings.
They entered and left those hearings unindicted, unarrested and unshackled, without visiting the jail or posting bond.
Then, days later, usually on a Friday afternoon, the U.S. attorney’s office issued a press release to media outlets announcing the guilty plea.
More details about those charges were contained in a document known as an information, which is similar to an indictment, that was made public in those cases. Those documents have become less and less detailed since Ketner’s guilty plea.
“As a long time public defender, it makes me sad that my clients don’t have that option,” said Liz Rogers, who has worked in West Texas for years. “I have lots of clients who cooperate with the government. They’re arrested, shackled, in jail clothes and put on bond. Then they go through the process.
“How did this case become so important that we had to design a whole new process? We’ve not had corruption cases elsewhere around the nation?”
She also wonders why Montalvo is closing the hearings and using a secret docket to keep anyone from knowing about those hearings.
“Many people that are sympathetic to the government’s case are backing up a minute to say ‘why all the secrecy?’ ” she said. “If we are going to weed out corruption, shouldn’t it be public?
“The whole thing about the American court system is that it’s supposed to be transparent.”
Rogers also questions why all of the cases are being directed to Montalvo’s court.
“If you’re trying to get the public’s attention and say El Paso’s not going to do business this way anymore, why does it help us to do that if it’s all secret in Judge Montalvo’s courtroom?” she said. “The government always wins when they comply with the spirit and the letter of the law.
“But to backdoor it into one judge and not even let the other judges get assigned is, in my opinion, not having the effect that they would want it to have.”
Other lawyers interviewed for this story said cases are supposed to be assigned randomly to the federal judges whose courts are in El Paso. Then, the U.S. attorney’s office will formally request that related cases be assigned to a particular judge.
Three other federal judges sit in El Paso: David Briones, Phillip Martinez and Kathleen Cardone.
Speculation is that U.S. Attorney Johnny Sutton and Assistant U.S. Attorney Debra Kanof, who is in charge of the El Paso investigation, want all the public corruption cases routed to Montalvo, who is from San Antonio, because of the other judges’ ties to El Paso.
In general, Rogers said, the conduct of El Paso’s public corruption investigation is unheard of.
“That’s what I’m saying. It’s unheard of.”
Who asked for secret dockets and hearings?
What surprises lawyers and legal scholars is not only the use of secret dockets and closed hearings, but also the lack of explanation.
Such an explanation might be found in a motion or motions by the U.S. attorney’s office for such measures and in the judge’s order granting them.
But it appears the government hasn’t formally asked and that Montalvo hasn’t issued a written order to have the dockets sealed or the hearings closed.
Daryl Fields, official spokesman for the U.S. attorney’s office in San Antonio, replied with a “no comment” to every question about why the secrecy measures are necessary.
When asked if Kanof requested them, Fields said, “The government in this case has not filed any motion to seal the courtroom.”
Asked if Montalvo entered the order on his own, Fields said, “You’re asking me to confirm something I cannot confirm or deny.”
Montalvo consistently has declined to speak on the issues involved in the public corruption case.
Defense lawyers with clients who have already pled guilty or who are targeted in the investigation say they have seen no such order from Montalvo.
“I’ve seen no such request or order,” said defense lawyer Gary Weiser, a former state prosecutor who represents a client whom the government has designated as a target.
Asked if he has ever seen or heard of the kinds of measures being employed by the government in this investigation, Weiser said, “No, I’m not aware of a procedure like that.
“Does that mean it can be done or not? I don’t know. The court has significant power.”
He declined to say if he objected to the secrecy.
The one person who seems to have come closest to getting an answer is Carl Starr, who filed a lawsuit against the government in March to challenge the secrecy measures. [march 26, 2008 npt background]
“The level of public interest and concern with the substantial issues regarding corruption and administration of justice presented by the case cannot be overstated,” Starr, who is not a lawyer, wrote in his motion to intervene in the string of cases that started with Ketner, the former assistant to El Paso County Judge Anthony Cobos. [motion to intervene]
Ketner became the first to plead guilty to charges in the investigation last June, and all the subsequent cases are tied to his. He pleaded guilty to four counts of conspiracy to commit bribery, wire fraud and mail fraud.
Before filing his suit, Starr sent an e-mail to Kanof asking if she would oppose his motion to open the court proceedings on First Amendment grounds and the public’s right to know.
“I am opposed,” Kanof replied. “The judge has closely followed the fifth circuit case law in protecting the identity of the uncharged individuals.”
Ironically, the information Kanof prepared in Ketner’s case cited 17 alleged co-conspirators who, though unnamed, were easily identifiable by the details she provided in describing them.
Starr said he has gotten no response to his lawsuit, and lawyers watching the case think his motion to intervene may be tossed out on grounds that Starr lacks the legal standing to sue in the case.
Hints of precedent
Although Kanof said Montalvo has followed rules in the Fifth Circuit, which includes Texas, Louisiana and Mississippi, Florida’s 11th Circuit Court of Appeals in 2005 was strongly critical of federal prosecutors and judges in the Southern District of Florida who removed cases from the public dockets and closed hearings without explanation and without allowing the press and public the opportunity to challenge those secrecy measures.
The 11th Circuit ruling against the government stated that the order sealing one case “violated the First Amendment standards because no finding was made on the record to rebut the presumption of openness. A party may overcome that presumption if it can show 'an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ ”
The government appealed the case to the U.S. Supreme Court, which opted not hear the case but let that ruling stand.
In another case the government lost 10 years earlier, United States v. Valenti, the 11th Circuit Court ruled that maintaining a sealed docket “is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings."
A former U.S. attorney for the Western District, former El Pasoan Ron Ederer, held that office under President George H.W. Bush from 1989 until 1993.
Ederer, who has a client in the El Paso investigation, said he never saw the need as U.S. attorney for the kind of secrecy measures being used in Montalvo’s court.
But, he added, the government has the right to ask for them.
What Ederer said is surprising is that the secrecy measures have been in place for nearly a year and that the prosecution didn’t formally request them.
“Can the court be sealed? Of course it can,” he said. “What is surprising is the amount of time that it has been sealed. There is a limit.”
Asked if it would be unusual to seal the docket, he said, “Yes, it would.”
He went on to say, “I do know the U.S. attorney’s office has been working very hard on this investigation, and I anticipate there will be some action in the way of indictments or other action in the very near future.”
The only lawyer interviewed by Newspaper Tree who was neither surprised nor disturbed by the secrecy in Montalvo’s court is a former assistant U.S. attorney in New Mexico for 14 years, Bob Gorance.
He said sealed dockets and closed hearings are not that uncommon in cases in which a defendant is secretly pleading guilty and offering future assistance in an investigation.
“Let’s say you’ve got a deal in a drug case and you don’t want people to know that this person’s cooperating or a political corruption case where you don’t want them to know there’s actually a deal because, say they’re wearing wires or doing this or that and if the world knew they had pled guilty and the government had them on the hook, no one would be interacting with them if it was public,” he said. “The plea agreements are sealed and they wear wires, they make phone calls, they do controlled deliveries with people who don’t know that they’ve pled guilty.”
He was surprised, however, that the names of the cooperating individuals have been made public in the El Paso cases and questioned the need to close court proceedings and dockets if the defendants are not providing future undercover assistance with the investigation.
Then, he said, “there’s no reason to seal it.”
"Reinvestment in secrecy"
Bill Weaver, a University of Texas at El Paso political science professor who holds a law degree and specializes in government security and secrecy issues, was harshly critical of the secrecy imposed by Montalvo.
National security and personal safety are the only two established reasons for closed hearings, he said.
“Until 9/11, there was a movement against secrecy,” he said. “But since 9/11, there’s been this reinvestment in secrecy that’s just been absolutely astonishing, and it covers every phase and facet of government, from the federal judiciary, which acquiesces to claims of secrecy by the federal government, to the executive branch and to even Congress.
“It’s just really astonishing how much is now secret and opaque when before it was allowed out.”
He conceded that protecting an ongoing investigation could be a third reason for secret court hearings.
“But, under that condition, there should be a motion to the court for a closed hearing,” he said. “There would seem to be a problem with the judge if there aren’t any motions to that effect.
“What I mean is, the judge is not honoring the spirit of the Constitution to keep the hearings in court as open and exposed as possible.”
Fields, the U.S. attorney’s spokesman, said, “I believe the judge sealed the courtroom without a motion by the government.”
Like Gorance, Weaver is baffled by the need for secret dockets and closed hearing when the identities of the individuals pleading guilty are made public.
“I would not jump to the conclusion right off the bat that this is an abuse of power,” Weaver said. “I would give them every benefit of the doubt.
“It is unusual and it’s not something you’d find a federal judge generally doing for no reason. But I cannot find an apparent reason in this case.”
There should be, he said, some motion or order supporting closed hearings, even if it does not disclose the specific reason for secrecy.
“They can’t get around that because there has to be an opportunity to argue against it and to appeal,” Weaver said. “This is just bizarre.
“It raises all kinds of questions about undue influence. Is it politically motivated? We just don’t know because nothing’s being exposed.”
In the past, Weaver said, courts were afraid to engage in too much secrecy because they believed there would be a public backlash.
“But what they have (seen) since 9/11 is there’s not,” he said. “People don’t care. So, we’ve had a huge resurgence in secrecy.”
Jim George, a veteran defense lawyer in Austin, said he has never run into a situation involving two court dockets, one public and one secret.
Aside from the First Amendment and the American tradition of open court, he said, the doors to proceedings involving a local public corruption investigation should be open to keep the government honest.
“Obviously, in a political corruption case, you have the potential that one political viewpoint uses the allegations of corruption to obtain political advantages against another political viewpoint,” he said. “Democrats investigate Republicans and Republicans investigate Democrats. That is a greater concern in this kind of case than almost any other.
“So, the problem is that ultimately, the federal judge and the U.S. attorney, as well as the various public officials involved in the other side of the investigation, all work for the people of El Paso County. You can’t really supervise the people who work for you if you don’t know what they’re doing.”
On the other side of that, however, is some anecdotal evidence that El Pasoans don’t necessarily want to know what is being done by the FBI, prosecutors and the court. In calls to local radio talk shows, on chat forums, and in private conversations, some have said they would prefer to give the authorities room to do whatever it takes to root out public corruption.
Law professors wary
Professors at the University of Texas School of Law said they had a hard time justifying or even believing what is happening in El Paso.
“I practiced for a long time, but never came across anything like this,” said law professor Bill Allison, who was unfamiliar with the situation until it was explained by Newspaper Tree. “I’m offended on two levels: one, as a trial lawyer and, second, as a citizen.
“I want the government to err on the side of transparency, but we have an administration that seems not to care about transparency at all.”
Professor Elizabeth Frumkin, who specializes in international and criminal litigation, said secret hearings require an order by the judge.
“I’m not aware of dockets being kept secret in a case that is already on the public record,” she said. “If the court had entered an order that would be one thing, but if there hasn’t been an order entered, that’s something else.”
Another law professor, Jim Harrington, said, “The law is pretty clear that there’s a heavy, heavy presumption against ever cutting off access to the court. And even when you do cut off access, it has to be very, very limited, both in scope and in time. Very limited.”
The U.S. Supreme Court has found reasons for keeping court proceedings open that go well beyond local concerns, he said.
“There are two policy reasons the Supreme Court has articulated for open courts,” he said. “One is it’s a corrective measure on judicial misconduct. Secondly, it’s essential to have public support of the judicial system, faith in the system.
“These are all constitutional arguments that the court has constantly put forward against any limitation on access to what’s going on in the court. They’re very important rights in the view of the courts that border on fundamental rights in the system.”
Louis Fisher also finds the El Paso situation interesting.
He is a senior scholar in the Library of Congress’s law library who specializes in constitutional law and who spent 36 years with the Congressional Research Service.
He has testified before Congress on 40 occasions, written several books and is cited as an authority in a number of Supreme Court briefs.
“Even in times of emergency,” he said, “you want to let out as much as you can to give the public confidence that their power is not being abused.
“You can’t have closed hearings. In the end, you can’t have confidence in a judicial process that is all behind closed doors.”
David Crowder can be reached at dcrowder@epmediagroup.com and (915) 351-0605