[Updated at 11 p.m.: At the request of Judge Richard D. Bennett, prosecutors sent all of the sealed documents to The Daily Record’s lawyers Friday night. Click here to see the government’s sentencing memorandum; click here to see Oaks’ response; and click here to see letters written in support of Oaks.]
The Daily Record has asked a federal judge to unseal sentencing memoranda filed in former state Sen. Nathaniel T. Oaks’ criminal case.
The request, filed in U.S. District Court in Baltimore late Friday afternoon, asks U.S. District Court Judge Richard D. Bennett to make public documents filed by defense attorneys and prosecutors in advance of Oaks’ sentencing hearing Tuesday.
Michael J. Grygiel, an attorney representing the newspaper, argued the administrative sealing of documents without a hearing or judicial order violates the First Amendment and the ability of journalists to cover public trials.
“The reason is straightforward: through it’s own administrative action, the government cannot unilaterally abridge the public’s right of access to judicial documents,” wrote Grygiel, who co-chairs Greenberg Traurig LLP’s National Media and Entertainment Litigation Group and is outside counsel for GateHouse Media LLC, The Daily Record’s parent company.
In separate fillings in the week leading up to Oaks’ sentencing hearing, prosecutors and defense attorneys made recommendations for terms of incarceration for the Baltimore Democrat, who pleaded guilty earlier this year to federal corruption charges.
In a filing Friday that is publicly available, Oaks’ public defenders reiterated their request for an 18-month sentence for Oaks rather than the five years sought by prosecutors, comparing his acceptance of more than $15,000 in bribes to two other prominent federal corruption trials of Maryland officials — former state Sen. Thomas L. Bromwell and former Prince George’s County Executive Jack B. Johnson. Both men were found guilty of taking hundreds of thousands in bribes and benefits.
“In consideration of the scope, nature, and personal benefit of the criminal conduct, Bromwell and Johnson are simply on another level from Mr. Oaks, and a substantial difference in their respective sentences is more than warranted,” Lucius T. Outlaw III wrote in a five-page memo that included another 45 pages of exhibits.
Oaks, 71, pleaded guilty in late March to one count each of wire fraud and honest services fraud related to an investigation involving a confidential informant for the FBI who posed as a developer.
Defense attorneys cited medical reasons and a slew of letters from character witnesses in asking for an 18-month sentence.
The Daily Record was unable to secure copies of either filing either through an online court system or in person at the federal court house in Baltimore. A clerk at the courthouse told a reporter that she was “100 percent certain that the files are sealed.”
But Grygiel, in his letter to Bennett, said there was no judicial order to seal the memos and the action was taken in accordance with a rule in the court, Grygiel called “constitutionally infirm and cannot be reconciled with the public’s rights of access to judicial documents under the First Amendment and common law.”
The memoranda were obtained and reported on by The Baltimore Sun.
“While research has failed to reveal how, exactly, the policy is administered, it seems at least some electronically filed sentencing memoranda are available to the public for some interval of time after they appear on the electronic docket,” Grygiel wrote, adding that “inconsistent and arbitrary application of the policy” requires the court to invalidate it.