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Judge Marilyn Clark’s courtroom in Passaic County, N.J., is circular and lit with a series of spotlights recessed into the ceiling. It looks very much like a theater in the round. On April 29, there was plenty of melodrama on that stage during arguments in a challenge by six newspapers to Clark’s continuing seal on the transcripts of secret bail hearings in the case of a man accused of selling forged identity papers to two of the Sept. 11 hijackers. Clark signaled from the outset the narrow questions of law her opinion would address, but it was not clear the attorneys understood her director’s notes from the bench. Their 90-minute debate turned quickly from dry questions about exceptions to the court rules regarding public access into a high-volume mix of Shakespeare, politics, law enforcement gossip, shameless flattery and old-fashioned bombast. In the end, Clark was frustrated by both sides in her attempt to have them educate her about the obscure, aging precedent at the heart of In re Release of Sealed Transcripts in the Matter of Mohammed El-Atriss, L-917-03. During the prosecution of Mohammed El-Atriss last November, Clark excluded both the public and the defendant from bail hearings, a move she described on April 29 as “absolutely unique” in her 14 years on the bench. Clark had relied on State v. Campisi, 64 N.J. 120 (1973), where the New Jersey Supreme Court closed a bail hearing in order to prevent organized crime from assassinating witnesses. She said she followed Campisi because she had been presented with a case involving two names, two Social Security numbers, a large cash business, no property in the United States, dual citizenship and a possible link to terrorism. “I was extremely worried,” she said. Campisi seemed destined to become a dusty curio. It has not been cited in any jurisdiction since it was written, and in 1980, the U.S. Supreme Court began a string of decisions that frowned upon court-closings. To Clark, however, Campisi is no doctrinal cul-de-sac. She said last week that her decision on whether the transcripts could be released is going to be “extensive” and will rely heavily on Campisi, which she called “good law.” That appeared to come as a surprise both to the media plaintiffs, represented by Louis Pashman of Pashman Stein in Hackensack, N.J., and to the defense, represented by Clifton, N.J., solo practitioner Miles Feinstein. Neither had addressed Campisi in his brief, but both argued on April 29 that the case had been long since overruled — by separate cases that, naturally, supported their opposing positions. “I don’t think Campisi has a role in this case any longer,” Pashman said, indicating that because El-Atriss is in a post-conviction phase, the protection of law enforcement interests is a nonissue. “I think that it is irrelevant at this point … I need not take a position on whether your honor was correct at the time,” added Pashman, who is representing the New Jersey Law Journal, The Record of Hackensack, The Star-Ledger of Newark, the Herald News of West Paterson, The New York Times and The Washington Post. Pashman, who spent less than three minutes on his feet, believes the controlling precedent is State v. Williams, 93 N.J. 39 (1983), in which Justice Alan Handler made the unambiguous holding that “all pretrial proceedings in criminal prosecutions shall be open to the public.” That was not what Clark wanted to hear. “Part of your argument is this closed hearing was inappropriate from the beginning,” she said. “[ Campisi] is viable law at the moment. It is the case I relied on.” The judge did not get much help on the issue from Feinstein, who wants the seal maintained. If Clark was offering Campisi — one of a tiny number of cases that favor secrecy — as a softball to Feinstein, the defense attorney failed to knock it out of the park. Instead, he hammered on the position that releasing the papers would flood the media with unproven, unrebuttable allegations from which his client could not recover, a slap in the face considering his pledge to cooperate with law enforcement. “I don’t think that argument has constitutional dimensions,” Clark said. “Not everything has to,” Feinstein replied. “The substantial privacy interest should in fact prevail.” Within a few minutes, Feinstein was quoting the bard. “Reputation, reputation, reputation! O! I have lost my reputation. I have lost the immortal part of myself, and what remains is bestial,” he said, reciting Cassio in “Othello.” “Is that a reason not to release the transcript?” said Clark, once Feinstein paused. Clark appeared sensitive to the national headlines that she and the case have attracted during the past six months. “What about public trust in the court system?” she asked Feinstein, suggesting that releasing the transcripts would allay suspicions that the judiciary was not a fair dealer. “Doesn’t the public have a right to say, ‘Judge, why did you do that?’” Feinstein argued that such an interest must be balanced against those of his client, “who will be ruined by all this innuendo.” The exchange was one of a series of clashes between Clark and Feinstein that filled the better part of an hour. While Pashman had merely stood at his desk, Feinstein strode to the center of the circle, a move that allowed him to vigorously gesture and point without endangering his client, who had taken a seat almost within arm’s reach. Feinstein’s fervor reached a climax when, while contending that the media would likely shortchange his client’s reputation if the transcript were released, his eye was caught by a female TV news reporter sitting in the jury box. Without breaking his stride, he paid her a compliment. “I hope this lovely young lady and these people [other reporters] show up,” if he were to make his client available for interviews, he said. “I watch every show and I read every newspaper,” he added, eliciting laughs from Pashman and Senior Assistant Prosecutor Steven Brizek. Feinstein struck hardest, though, when he addressed the policy U-turn made by the Passaic County prosecutor’s office and the various law enforcement bodies that had a hand in the case. Although Brizek had requested the secret hearings, he now no longer opposes releasing the transcript. Feinstein theorized that his client was prosecuted more for the publicity value than the furtherance of the war on terror. As evidence, he disclosed that although his client’s guilty plea was conditional upon his cooperation with terror investigators, none of them had spoken to him since he was sentenced. “This was better than Houdini ever could’ve done — all of a sudden those [concerns] don’t exist,” he said. In that vein, Feinstein really got Clark’s attention when he started discussing the contents of the transcripts, which had been provided to him under seal for the purpose of rebutting the media’s intervention. Clark all but dared Feinstein to quote from them when he asked her how much he was allowed to describe in open court. “You’re the only one who wants them sealed, so say what you want,” she said. Feinstein took advantage of that a few minutes later when he quoted an officer of the Passaic County sheriff’s department saying on the transcript that federal authorities had opposed the sheriff’s investigation: “We’ll shut down the sheriff’s department — we’ll arrest the sheriff,” he said. “In fairness to the people involved,” Clark fumed in response, “you take a very inflammatory comment out of context.” When Clark’s attention appeared to wander, Feinstein reminded her that they share a history that goes back to when Clark was a prosecutor. “I’ve always said you’re the fairest person I’ve ever seen,” he said. After the session was over, a laughing Pashman confronted Feinstein on the issue of Clark’s fairness. “I wanted to object to that,” he said. “You seem to have forgotten that you clerked for my father” — former New Jersey Supreme Court Justice Morris Pashman. “He taught me everything I know,” Feinstein replied. Clark said she would rule from the bench on June 3.

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