Constitutional lawyers are saying that when a Los Angeles federal judge closed a two-day trial in the 2005 prison killing of a Jewish Defense League activist, he was likely to have violated the First Amendment. -DB
Los Angeles Times
July 24, 2009
By Carol J. Williams
A Los Angeles federal judge took the highly unusual step of closing a two-day trial this week in a case involving the 2005 prison killing of Jewish Defense League activist Earl Krugel.
Constitutional scholars and press-freedom advocates deemed the broad secrecy accorded the trial by U.S. District Judge Stephen V. Wilson perplexing—and a likely violation of the 1st Amendment.
Wilson issued a protective order covering U.S. Bureau of Prisons policies and practices in evaluating inmates for gang affiliation and potential to harm others. In deference to the order, Wilson banished media and spectators from the courtroom Tuesday and Wednesday, from the swearing in of the first witness through closing arguments.His ruling late Thursday was filed under seal.
“This is outrageous. This is not Russia, North Korea or Iran. This is the United States,” said Benjamin Schonbrun, attorney for Krugel’s widow, Lola, who was seeking damages for the wrongful death of her husband at the hands of a known white supremacist.
Wilson ruled for the government, “to the plaintiff’s immense disappointment,” said Schonbrun, adding that he assumed the judge’s assertion that the ruling was secret applied only to the justification, not which side won. He said he planned to appeal, pointing to the unorthodox handling of the case.
Constitutional lawyers expressed shock and condemnation of the court’s closure.
“Astonishing. I’ve never heard of such a thing in federal court,” said Lee Levine, a veteran 1st Amendment lawyer in Washington, D.C., who has represented The Times in past cases of government assertions of secrecy privilege in national security matters. “There have been circumstances in which limited, targeted closing has been ordered because of specific sensitive or classified information or trade secrets. But the notion of closing an entire trial in a federal court is astounding.”
The non-jury trial Wilson conducted involved the Nov. 4, 2005, murder of Krugel at the Federal Correctional Institution in Phoenix. Three days after Krugel’s arrival, David Frank Jennings, a tattooed racist housed in the general population of the medium-security facility, used a paving stone from the prison recreation yard to bludgeon Krugel to death with five blows to the head.
The widow’s suit sought damages for prison authorities’ failure to appropriately classify Jennings as a danger to others. It pointed out that Krugel had been kept in protective custody for much of the two years between his arrest and sentencing to 20 years in federal prison for plotting the bombing of a Culver City mosque and an Arab American politician’s office.
Allen Weiner, a Stanford Law School professor and former State Department lawyer, said there are reasons beyond national security for taking the extraordinary step of closing a trial.
“You’re allowed to withhold information that would interfere with an ongoing criminal investigation,” said Weiner, while dismissing that as likely grounds for the secrecy applied to the Krugel case.
Jennings, 33, pleaded guilty to Krugel’s slaying and was sentenced last year to an additional 35 years in prison.
“You’re not allowed to invoke this to prevent disclosure of information that would reveal mismanagement or information that is embarrassing to the government,” Weiner said of the secrecy privilege. “As a legal matter, that can’t be the reason to do it.”
Constitutional law professor Karl Manheim of Loyola Law School was equally baffled by Wilson’s action.
“Typically, grounds for closing civil trials are very narrow, involving national security, trade secrets, that sort of thing,” Manheim said.
He noted that the last time prison officials sought to justify deprivation of 1st Amendment rights as overridden by administrative concerns—in a case challenging racial segregation in California prisons—the U.S. Supreme Court “was unmoved by that argument and my guess is that they would be unmoved by it here.”
Wilson declined, via court clerk Paul Cruz, to say why he closed the trial. Cruz said the courtroom was closed because of “testimony that concerned confidential ways prison officials identify gang members, especially the Aryan Brotherhood, which is a very dangerous gang.”
“If testimony on that were made public, that would jeopardize how prison administrators validate these types of defendants,” Cruz said.
The Times’ request for a transcript of the closed proceedings won’t be met until the record is expunged of “sensitive information,” said Cruz, who couldn’t say how long that would take.
Schonbrun had objected to the courtroom closure, arguing that gang insignia and symbols depicted in a Bureau of Prisons manual are “readily available on the Internet.”
Assistant U.S. Atty. David Pinchas countered that the manual itself wasn’t posted on the Internet, and Wilson overruled Schonbrun’s objection.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said Wilson was obliged to give the media and the public an opportunity to appeal his decision to close the courtroom.
“There is only one word for this: unconstitutional,” she said.
Copyright 2009 Los Angeles Times