Court refuses to scrutinize the 'trial penalty'

A Washington federal judge refused an opportunity to shed light on the “trial penalty”—the consequences defendants face when they choose to go to trial reported, The National Law Journal.
Attorneys sought to unseal a PowerPoint presentation that prosecutors prepared in the case against Kevin Ring, a former lobbyist convicted in the Jack Abramoff scandal.
A jury convicted Ring in late 2010 of trading things of value—including meals and trips—in exchange for favors from public officials. It was his second trial. A jury hung following his first trial in 2009. Ring is serving 20 months in prison.
Ring’s lawyers at Miller & Chevalier asked the court in December to unseal portions of a PowerPoint document the government used during a reverse proffer session—a meeting where the government tells a defendant about the case to force a decision over whether to plea or go to trial. Ring’s lawyers argued there was a strong presumption in favor of public access to judicial proceedings and court records.
The presentation, Miller & Chevalier partner Andrew Wise wrote, would educate public interest groups, academics and others “about how pleas and charging decisions can work and how prosecutors’ actions can affect the criminal justice process.”
But U.S. District Judge Ellen Segal Huvelle noted in her June 10 decision that the PowerPoint presentation was never filed with the court; it was provided to Ring and his lawyers before Ring was indicted in September 2008. As a result, the judge said, the presumptive right of public access didn’t apply.
“A document is part of the judicial record if it is filed with the court and plays a role in the adjudicatory process,” Huvelle wrote. “If a document is not filed with the court, it is not part of the judicial record and is not subject to a common law right of access.”
Wise declined to comment.
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