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Transcripts of secret bail hearings for a defendant who sold false identity cards to two Sept. 11 hijackers may be released to the public, a Passaic County, N.J., judge ruled June 3. But the judge stayed her ruling until June 19 to give the defendant a chance to appeal. Judge Marilyn Clark also took the opportunity to upbraid the Appellate Division for creating what she called “misperceptions” about her handling of the case, In re Release of Sealed Transcripts in the Matter of Mohammed El-Atriss, L-917-03. The hearings, unique in the state’s history, were held behind locked doors and excluded the defendant and his attorney. El-Atriss ran a phony document mill in Paterson, N.J., that came to the attention of the FBI when authorities found he had sold bogus international driver’s licenses to scores of illegal immigrants. Two of those aliens were Khalid Al-Midhar, who was aboard the jetliner that was flown into the Pentagon, and Abdulaziz Alomari, aboard the first plane to hit the World Trade Center. Clark said that imposing secrecy on the bail proceedings was one of the most difficult choices of her career. Trying to balance the prosecution’s need to keep its terrorism investigation confidential with the defendant’s right to confront witnesses “had never been so difficult,” she said. She quoted her own words from the unreleased transcript to explain her decision: “It would be totally unreasonable for any court to ask the prosecutor to put any of this information on the record in the bail hearing. But, again, I note that it would be impossible for the court to make an informed bail decision without much, if not all, of this information.” In doing so, Clark made the mystery even more tantalizing, because at the time of the hearing, El-Atriss had been in jail for two months, after failing to make his initial bond of $250,000. The judge offered no clues as to what persuaded her to increase El-Atriss’ bail to $500,000, which he never raised. In the end, El-Atriss was revealed as no more than an unwitting bit player in the events of Sept. 11. He pleaded guilty to third-degree sale of simulated documents and received five years’ probation. Clark also used her ruling to defend her reliance on State v. Campisi, 64 N.J. 120 (1973), an obscure precedent that approved of a secret bail hearing in a mob case where police were investigating a series of execution-type murders. The case has not been cited in any ruling since it was written, but Clark noted that Judge Sylvia Pressler mentions the case in her comments to R.3:13, the discovery and inspection rule, and R.3:26, the bail rule, in Rules Governing the Courts of the State of New Jersey (Gann Law Books, 2002). “I am totally convinced it is good law,” Clark said. “It is available to every judge on the very rare occasions where this procedure is necessary.” Clark concluded that the defendant’s rights, although abridged within the Campisi hearing, could be protected on appeal. In January, El-Atriss’ lawyer, Clifton, N.J., solo practitioner Miles Feinstein, did appeal and won a remand order from Judge Howard Kestin that forced Clark to further articulate why she had closed the hearing, and to clean up some procedural details, such as setting a grand jury timetable. It was Kestin’s order that Clark dissected June 3 across several pages of her ruling. “I believe that any reasonable interpretation of this order would lead one to conclude that no reasons were stated on any record to close this hearing” and that the other procedures were unaddressed, she said. “I respectfully submit that none of these conclusions would be accurate.” The case had been brought by Louis Pashman of Pashman Stein in Hackensack, N.J., who represented 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, all of which hope to read the transcripts. Pashman is pleased with the decision but Feinstein says he will probably appeal. “[I]t’s a matter of first impression [and] we’d like to meet what’s in there.” Feinstein then asked the media to attend a mock trial of his client, to which he would invite U.S. Attorney Christopher Christie and state Acting Attorney General Peter Harvey, a session he said would exonerate his client and expose the prosecution’s muddy motives. In the corridor outside Clark’s court, Feinstein’s client seemed less keen on the publicity. When asked whether he would instruct Feinstein to appeal, El-Atriss said only, “I have to talk to him first.”

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