August 6, 2008
El Paso Media Group, which publishes The Newspaper Tree online, has filed a motion in federal court calling on Federal Judge Frank Montalvo to open his court hearings and docket in El Paso’s years-long public corruption investigation.
The motion to intervene, filed this morning, seeks a hearing on Newspaper Tree’s petition to open future hearings and unseal court documents related to the guilty pleas of nine individuals who have pled so far. [motion]
Since John Travis Ketner, the former chief of staff to County Judge Anthony Cobos, pled guilty in a closed hearing before Montalvo more than a year ago to charges involving bribery and wire fraud, all but one of the subsequent hearings involving other defendants also have been closed. [public corruption, closed courts, may 12, 2008]
The judge’s court docket, which normally alerts lawyers and the public of upcoming hearings, has been kept secret, and most documents in the investigated cases have been ordered sealed by the court.
“With a secret docket and closed hearings, legal professionals, the public and the press have no glimpse of the court’s administration of justice,” the media group’s motion states.
El Paso Media Group and the Newspaper Tree are represented by attorneys with the Texas Civil Rights Project in Austin and its affiliate, the Paso Del Norte Civil Rights Group.
“We’re a very small media group, and we had to use all the resources that were available just to get this done,” the media group’s owner and publisher, Keith Mahar, said of the motion challenging the court’s actions. “This is a monumental task for us, but we believe, but we believe in what we’re doing. It’s important.”
In May, Montalvo filed a memorandum of opinion in response to a motion by Carl Starr to intervene that also called on Montalvo to open the hearings, docket and documents in the public corruption cases on First Amendment grounds. [corruption court stays closed, but judge offers new information, may 28 2008]
Montalvo dismissed Starr’s motion, citing cases in which other courts found “no First Amendment right of access” to hearings or documents considered important to a continuing investigation.
But the judge did say he would open some previously sealed documents as long as certain names and other information were removed.
“I don’t think the judge’s ruling went far enough regarding Starr’s motion because the presumption is always going to be in favor of total transparency and openness in terms of court files,” said attorney James Harrington, director of the Texas Civil Rights Project. “You still haven’t achieved that openness and transparency such that people can understand what is happening in the case.
“All we have is Montalvo’s word, which was ‘trust me.’ ”
Harrington cites a 1982 Supreme Court ruling in which the high court found the press and public have a right to be present in proceedings that traditionally have been open and where “public access plays a significant positive role in the functioning of the particular process in question.”
He also refers to a 1984 Supreme Court decision stating that if “closure is essential to preserving higher values,” then it must be “narrowly tailored to serve that interest” and explained “so a reviewing court can determine whether the closure order was properly ordered.”
In the public corruption cases, Harrington contends that Montalvo has not narrowly tailored his rationale for the ongoing secrecy.
“Usually when a court is allowed to seal, it’s for a very limited period of time and for an articulated reason,” he said. “Here, we have something that’s been going on for four years. That’s not what the narrowness requires.”
“You never see this ongoing veil of secrecy going on in cases the way we have in this cases.”
The earliest known wiretapped telephone conversations in the FBI’s investigation date back to 2005.
In his memorandum of opinion in May, Montalvo said the records were being sealed and the courts closed to protect the investigation and the individuals involved.
The judge further disclosed that he did not order the secrecy on his own but closed the hearings and sealed documents upon the oral requests of the federal prosecutor, Assistant U.S. Attorney Debra Kanoff, and with the consent of defense lawyers.
“This court is not asking anyone to ‘trust me because I say so,’ ” Montalvo wrote. “Instead, the court is suggesting that the public should trust the system, because the procedures in place have withstood the test of time.
“Although we tend to equate transparency with openness, no investigation of this nature and magnitude can proceed unimpeded without the level of confidentiality discussed in this memorandum opinion. Under the circumstances, permitting the requested public scrutiny would obliterate the possibility of conducting the investigation.”
Harrington said he would question that, given the federal law enforcement agencies' long record of bringing public corruption cases forward without the secrecy in these cases.
The latest guilty plea to a public corruption charge before Montalvo came from Fernando Parra and was conducted in open court because Parra was originally arrested in February on child pornography charges, not for public corruption.
But at the July hearing, Parra pled guilty to surprise charges of conspiracy to commit mail fraud and the deprivation of the right to honest services.
Parra also pled guilty to a charge of receiving "obscene, lewd and lascivious matter" over the Internet, but not to possessing child porn.
In June, lobbyist Tony Dill pled guilty at a closed, unannounced hearing to conspiring with others to pay cash to a member of the El Paso County Commissioners Court to secure that official’s support and votes on contracts with private vendors seeking the county’s business.
All told, nine people have pleaded guilty in the investigation. [public corruption 101, compilation of background articles, updated july 16, 2008]
To reach David Crowder, write to email@example.com or call (915) 351-0605