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It’s not every day that defense lawyers find themselves on the same page as Judge Andrew Kleinfeld. Yet both are arguing that a Ninth Circuit U.S. Court of Appeals ruling Monday will make it harder to persuade some defendants to provide information to the prosecution. From now on, whenever a cooperating defendant wants a closed courtroom for his allocution, he will have to make a written motion first, Judge Sidney Thomas wrote. That’s a much more formal procedure than the current routine in the Northern District. Usually, judges will close the courtroom upon simple oral request, defense lawyers say, so that the defendant can discuss his cooperation without fear of being branded a snitch. But when San Francisco solo Claire Leary came before Judge Jeffrey White for Agosto Biagon’s sentence, the judge denied her request to clear the court. Monday’s Ninth Circuit ruling affirmed White’s decision. “I’ve never heard of a case where a district judge didn’t seal the court when asked to do so, even with an oral request in the moment,” said Daniel Blank, an assistant federal public defender in San Francisco. The Ninth Circuit went further than just upholding White and denying Biagon’s claim that his right to speak freely to the court during sentencing had been denied. Thomas, joined by Senior Judge David Thompson, found that Leary’s request should have been denied because she failed to file a written motion first. “A notice to the public is required before a court may close court proceedings to which a qualified right of access exists,” Thomas wrote. That drew a rebuke from Kleinfeld. Nowhere does that requirement appear in the Federal Rules of Criminal Procedure, Kleinfeld wrote in a concurrence. “I do not see a good reason to turn this easy case affirming denial of a defendant’s motion to seal the courtroom,” Kleinfeld wrote, “into a case about an entirely different subject not raised by appellant’s brief, a new press right to be present during sentencing hearings.” Federal Public Defender Barry Portman said that, in practical terms, even if a motion to close the courtroom is filed under seal, it will forever exist on the docket. The mere existence of such a motion could identify a cooperating defendant, Portman said. And those motions may now have to allege a specific threat to the defendant’s safety in order to persuade a judge to close the court, Blank said. “Let’s say I don’t have specific knowledge someone who wants to hurt me is going to be in court,” Blank said, referring to a hypothetical client. “If I say, I don’t know who is going to be there, I’m just worried, there still might be someone there.” Blank added: “Just saying ‘I’m a nervous Nellie,’ or ‘I’m prudent’ ain’t going to be enough” to convince a judge. From now on, Blank said, he will advise clients that when they allocute, it may be in open court, whereas now he tells them that judges routinely close the court. Leary did not return a call for comment. Barbara Valliere, the appellate chief in the Northern District U.S. attorney’s office, declined to comment. Assistant U.S. Attorney Jeffrey Finigan argued the case for the government.

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