New York Federal Criminal Practice Blog
March 25, 2009

NDNY Court Walks Tight Rope in Weighing Confidentiality of Sentencing Memoranda

Guest Contributor Lynn Goodman, Esq., writes:

New York federal courts continue to wrestle with the competing interests of a defendant’s right to privacy and the public’s right to know the facts influencing a judge’s sentencing decisions.  In United States v. Strevell, 2009 WL 577910 (N.D.N.Y. March 4, 2009), a newspaper sought to unseal sentencing documents in a high profile case involving the misuse of public funds by the former director of the Institute for Entrepreneurship, a not-for-profit entity created by SUNY and funded by state and federal grants.  The defendant, Felix Strevell, had pleaded guilty and cooperated with the government on other investigations.  The fact of his cooperation was made public by the prosecutor, but both the government and the defendant sought to maintain the confidentiality of the manner in which he cooperated and certain other facts.

NDNY Judge Sharpe, in rendering a compromise decision to unseal some sentencing documents and seal or release other documents in redacted form, begins by setting forth the judicial standard used to determine when sealing is appropriate: “Judicial documents enjoy a presumption of access, which can be rebutted by countervailing factors that outweigh public interests.”  Those factors include the protection of law enforcement techniques, sources, witnesses, police officers, grand jury secrecy, national security, and the protection of certain heightened privacy interests in medical records, financial and business records and family matters. The court ruled that the determination should be fact specific and narrowly tailored to preserve the secrecy of only those facts that implicate the higher privacy values listed above.  The court granted the newspaper’s request for a “sunshine date,” or date upon which the sealing order would expire, and ordered that the sealing order expire in one year, subject the right of the government or defendant to apply for an order renewing the sealing order upon a showing of good cause.  


The public’s right to know the facts that motivate a judicial decision is well ensconsed in First Amendment jurisprudence.  However, our criminal justice system would be impaired if both the government and the defendants were forced to publicly reveal every fact that affected a sentencing decision.  Defendants and witnesses would be reluctant to cooperate and fearful of retribution.  Ongoing investigations would be compromised. Personal and embarrassing information, relevant to the sentencing decision, might not be provided to the court.  Judge Sharpe appropriately recognized this dilemma and crafted a balanced response that allowed the release of certain facts and protected others.  The use of a “sunshine” date is especially interesting, as a way of minimizing the adverse effects of this information being disseminated only for the momentary thrill of salacious detail.

Lawyers: William Fanciullo, Esq., (defendant); Jonathan Donnellan, Esq., Ravi Sitwala, Esq. Hearst Corporation (Intervenor Albany Times Union); Alex Bunin, Office of the Federal Defender (Amicus Curiae); AUSA Elizabeth Coombe

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