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The admitted forger of fake international driver’s licenses sold to two Sept. 11 hijackers will be sentenced this week, but his punishment will not end the case. A coalition of newspapers on Thursday filed a complaint demanding that transcripts of Mohammed El-Atriss’ unprecedented ex parte, in camera bail hearings be released to the public. As a result, the prosecution and defense are considering policy U-turns that might have them adopting each other’s positions. Passaic County, N.J., prosecutor James Avigliano is considering abandoning his insistence that details of the case remain under seal. “Sure, we’ve thought about it,” he says. “We’re waiting to see what is filed.” He says a decision will be made after a discussion with his team. That team will likely feature senior assistant prosecutor Steven Brizek, who tried the case, and Steven Braun, the assistant prosecutor in charge of the county’s appeals section. Avigliano declines further comment. Conversely, the defense, which had been prevented from attending the hearings or reading transcripts of them, is said by three lawyers to be backing away from its argument that the record be unsealed and debated in public. Clifton, N.J., solo practitioner Miles Feinstein did not return a call for comment, but attorneys who have spoken with him say he fears the release of the transcripts will lead to the airing of bad news about his client. “He gave me the impression he’s absolutely going to oppose it,” says Louis Pashman of Pashman Stein in Hackensack, N.J., one of the three lawyers. “It is simply that he has no idea what’s in it and he’s afraid that what’s in it could be embarrassing to his client.” The other two attorneys spoke on condition they not be identified. Pashman represents the New Jersey Law Journal, The Record of Hackensack, N.J., The Star-Ledger of Newark, N.J., The Herald News of West Paterson, N.J., The New York Times and The Washington Post. He was invited in a Feb. 20 memo by Superior Court Judge Marilyn Clark to file pleadings demanding the transcripts. The case, State v. El-Atriss, W3337476, has made headlines since Passaic County authorities arrested El-Atriss. The secret bail hearings Clark held — from which even the defendant and his lawyer were barred — were unique in New Jersey. The case, though initially trumpeted as a salvo in the war against terrorism, revealed El-Atriss as no more than a bit player in the events of Sept. 11. He pleaded guilty to third-degree sale of simulated documents and will receive five years’ probation. The newspapers are hoping the transcripts will explain why such a small fish was given such unusual treatment. PARALLEL TO UNABOMBER CASE A change in tactics by the prosecution or defense would not be unprecedented. In the Unabomber case, the media sought copies of Theodore Kaczynski’s sealed psychiatric competency report after he pleaded guilty to sending letter bombs through the mail. Kaczynski, citing privacy, demanded that they stay secret. The government took no stance on the matter. The 9th U.S. Circuit Court of Appeals ruled in favor of the intervening media in U.S. v. Kaczynski, 154 F.3d 930. “It is fairly common in cases which the prosecution had requested a sealing,” says Unabomber prosecutor Robert Cleary, now a partner at Proskauer Rose in Newark, N.J. “Once the case is over … the prosecution then doesn’t have an interest in keeping it sealed anymore, and lets the media fight with whoever is on the other side.” Prosecutors are only likely to want the seal maintained if an investigation is ongoing or as a way of keeping future suspects in the dark as to their methods, says Cleary. “What if there’s sensitive wiretap information? What if there are forms of electronic surveillance?” he says. Another factor is the impact on future cases linked to terrorism. Prosecutors may be chilled by the knowledge that anything they successfully seal will nonetheless make it into the newspapers six months down the line, says Robert Gluck, a former Middlesex County prosecutor and now a partner practicing criminal defense at Mandelbaum, Salsburg, Gold, Lazris, Discenza & Steinberg in New Brunswick, N.J. “The overriding factor is, what kind of precedent does this set?” LITTLE GAIN FOR DEFENSE For Feinstein, there is little to be gained in allowing the records to come to light. His client has returned to normal life, living with his sister in Union County. Feinstein even persuaded Clark to seal his home address so El-Atriss can avoid reporters and put the case behind him more quickly. New material from the court would only hinder that process, Gluck and Cleary agree. “He’s just thinking about his client and that’s all he’s obliged to do,” Gluck says. One question on Feinstein’s mind is likely to be, “Am I subjecting my client to scorn?” says Gluck. “Any connect he might have, any allegation of a connection with al-Qaida, or any terrorist organization in this climate is certainly something that’s not favorable to his client.” Feinstein has denied that El-Atriss had any knowledge that his customers were hijackers. In addition, the transcript was made by Brizek and his witnesses, and therefore may consist of allegations that Feinstein knows nothing about and was unable to rebut. Unless the information is patently ridiculous or describes government dirty tricks, it is likely to reflect badly on El-Atriss. On that note, Gluck notes the possibility that the prosecution may have reason to be embarrassed by the transcript’s release. “They may have stepped on some toes and wouldn’t want anyone to know,” he says. “I’m not saying they did anything illegal, [but] in the interest of national security you can bend the approach you take to certain things. You can loosen it. You can be a little more free on how you can secure certain information that wouldn’t under normal circumstances be proper. These are things that are best left quiet.” Pashman is not concerned. “I’m not aware of any rule that might keep testimony secret because it might embarrass you,” he says.

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