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A guilty plea and a sentence have been overturned by a federal appeals court because Southern District Judge Shirley Wohl Kram accepted the plea and handed down the sentencing in the robing room. The 2nd U.S. Circuit Court of Appeals found Monday that the robing room sessions violated the public’s qualified First Amendment right of access to criminal proceedings. The court said it was exercising its rarely used “supervisory powers” to remand the cases “for proceedings to be held in open court.” “Holding these significant criminal proceedings behind closed doors — without notice to the public or any statements of reason for the closure — is inconsistent with our open system of justice,” Judge Chester J. Straub wrote. The court said Kram offered no reason or explanation for accepting the plea and ordering the sentence in the robing room. A government brief said holding such proceedings in the robing room was “in accordance with Judge Kram’s customary practice.” The circuit said Kram had failed to follow the circuit’s procedures for giving the public notice, and a chance to object, to closed-door hearings. The ruling came in the cases of U.S. v. Goiry, 02-1010, and U.S. v. Munoz, 03-1061, cases argued before separate panels last spring. Luz Marina Munoz pleaded guilty before Kram on Dec. 19, 2001, to a single count of conspiracy to distribute 500 or more grams of cocaine. She was sentenced to 3 years and 10 months in prison. On appeal, she claimed that the acceptance of the plea in the robing room instead of in open court violated the Federal Rules of Criminal Procedure and Sixth Amendment right to a public trial. In the other case, Carlos Goiry pleaded guilty before a magistrate judge to conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. He was sentenced by Kram in the robing room, also on Dec. 19, 2001, to 135 months in prison. Without contesting the location of his sentencing hearing on appeal, Goiry argued that Kram erred in refusing to give him a two-level sentence reduction under the federal sentencing guidelines for his allegedly minor role in the conspiracy. Straub said that, before closing a proceeding to which the First Amendment attaches, a court must make specific findings on the record demonstrating that closing the court is, in the words of the 2nd Circuit, “essential to preserve higher values and is narrowly tailored to serve that interest.” The circuit, he said, established procedures for giving notice to the public before closing a proceeding in the case of In re the Herald Co., 734 F.2d 93 (2nd Cir. 1984). The procedures include the requirement that a motion for courtroom closure be docketed in the clerk’s office to give members of the public an opportunity to challenge it. RIGHT OF ACCESS The government, Straub said, argued that Munoz’s plea did not violate the First Amendment because the transcript of the plea proceeding was not sealed and was made available to the public. “However, the fact that transcripts of Munoz’s plea proceedings and Goiry’s sentencing proceeding were later available to the public and press does not satisfy the First Amendment right of access,” he wrote. He cited the Martha Stewart case, in which the circuit reversed Judge Miriam Goldman Cedarbaum’s decision to bar the press from jury voir dire and said transcripts provided after the fact are not enough. Transcripts, the court said in the Stewart case, do not “fully implement the right of access because some information, concerning demeanor, non-verbal responses, and the like, is necessarily lost in the translation of a live proceeding to a cold transcript.” “Although no member of the public or press has complained in either the Munoz or Goiry case, the purpose of Herald’s notice procedures is to provide the opportunity for an interested member of the public to complain,” Straub said. The court, he said, had no need to address Munoz’s Sixth Amendment argument because it was remanding under its supervisory powers. For the same reason, the court found it unnecessary to address the argument that Rule 11(b)(1) of the Federal Rules of Criminal Procedure, which requires a sentencing judge to “address the defendant personally in open court,” although Straub said the rule was “clearly violated.” The Munoz appeal was heard by Chief Judge John M. Walker Jr. and Judges Straub and Richard Cardamone. The Goiry appeal was heard by Judges Straub, Ralph K. Winter and Donald P. Lay of the 8th U.S. Circuit Court of Appeals, sitting by designation. Anthony Ricco and John M. Rodriguez represented Goiry. John A. Cirando represented Munoz. Assistant U.S. Attorneys Kim A. Berger, Miriam H. Baer and Marc L. Mukasey represented the government.

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