Judge orders Scott Warren trial docs unsealed after media lawsuit

A federal judge has ruled that documents filed in the case against No More Deaths volunteer Scott Warren must be unsealed after media organizations sued to make them public.

In a two-page order, U.S. District Judge Raner C. Collins rejected the government's argument that a disclosure agreement signed by Warren's defense team meant that certain documents added to federal filings as part of the case be sealed. 

"It goes without saying there is presumption that matters filed in Court are presumably public and the party wishing to keep the matter sealed must show compelling interest or compelling reason that justifies secrecy and outweighs the public interest and access of these documents," Collins wrote. "In this matter, the Government’s basic argument is that, because of the disclosure agreement between the Defendant and the Government, the matter should remain sealed," he wrote.  

"That itself is not a compelling interest or a compelling reason," Collins wrote. 

Warren, a 36-year-old humanitarian aid volunteer and Arizona State University professor, still faces two felony counts of harboring, stemming from his January 2018 arrest by U.S. Border Patrol in Ajo, Ariz., along with two men who were in the country without authorization. 

Warren was originally charged with two felony counts of harboring, as well as a conspiracy charge, however, after federal prosecutors failed to convince a jury of his guilt, the government announced on July 2 that it would drop the conspiracy charge, and pursue just the harboring charges in a November re-trial. 

Before Warren's trial began, First Look Media Works, Inc. which publishes the Intercept, asked Collins to release documents contained in more than a half-dozen filings. First Look Media was joined by the publishers of the Arizona Republic, the New York Times, and the Washington Post, as well as the Associated Press and CNN. 

First Look Media and others argued that "the Court must recognize two important failures: First, there has been a failure by the Court to engage in procedures necessary to seal court records — public notice and hearing – that protect the public's constitution and common law rights of access to such records. Second, the Court has made no on-the-record findings that demonstrate closure is necessary to protect a compelling interest, that closure is necessary to avoid harm to that interest, and that there are no alternatives to closure." 

In the filing made just before Warren's trial began, the Intercept's lawyers argued that the government's move to seal documents attached to several of the defense's motions, as well as the court's failure to add a notice that such documents were in the court's docket on a electronic filing system known as PACER, or Public Access to Court Electronic Records, a nation-wide system used for federal courts, violated the First Amendment and the "common law access to judicial documents." 

"If a court contemplates sealing a document, it must balance competing interests of the public against the interest asserted by the party seeking to seal the judicial records; then, it must articulate on the record facts that support that compelling interest," they wrote. 

Collins demurred reviewing the Intercept's arguments until after Warren's first trial, but during a hearing on whether or not federal prosecutors would move forward on a new case, Collins agreed to hold a hearing on Tuesday, July 9. 

The Intercept's attorneys were prepared to argued the case on July 2, but Assistant U.S. Attorney Anna Wright balked, arguing that she and her partner Nathaniel Walters were unprepared to make those arguments. 

The case represents a win for Ryan Bailey, a third-year law student at Arizona State University, who argued the case in front of Collins this week, backed by Gregg P. Leslie, an ASU professor with the university's First Amendment Clinic, and David Bradlow, who could not attend the hearing, but instead called in and listened by telephone. 

During the hearing, Bailey said that the government "must provide a compelling reason to seal the documents," and that a non-disclosure agreement signed by Warren's attorneys should not keep media companies from being to see the court's records. "Two parties cannot take away that right for all individuals," said Bailey. He also argued that the court "must give, on the record, the reasons to accept or deny this motion," and that it was a "public right" to see these motions under the 1st Amendment. 

Wright argued that the documents should remain under seal because they contained documents and information given to Warren's attorneys as part of their disclosure requirements, and that Warren's lawyers—Greg Kuykendall and Amy Knight—had filed the documents as an "improper workaround" under a non-disclosure agreement they signed. 

"How do you know that?" asked Collins during the hearing.

Wright argued that the government gave the defense these documents as part of disclosure and promised not to release them, but by filing them as attachments in motions, including a motion that argued federal government's case was built on selective enforcement, allowed the defense to publish the other party's disclosure, which was 'not necessary for the motions" sent to the court, she said. 

"Is this the only reason?" Collins asked. 

"I hate to speculate on other's minds," Wright said, but adding the attachments to the motions was "not required." 

After Wright and Bailey finished, Collins asked Leslie if his student's grade was based on his success in court, and said that he would rule before next week. 

In Collins' ruling, filed two days later, he wrote that "whether or not" Warren and his lawyers "filed exhibits to try to circumvent the disclosure agreement is not before the Court at this time." 

"The Government’s request that, because of the disclosure agreement, the matter must remain sealed cannot be reconciled with the public’s right to know," he wrote, giving Wright and Walters until July 18 to "suggest any further redactions they believe should be made before the requested documents are released."