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June 24, 2011

Sentencing meets the First Amendment in DC Circuit material witness ruling

An interesting issue of sentencing proceedure, victims' rights and the First Amendment is addressed today by a DC Circuit panel in US v. Brice, No. 10-3079 (DC Cir. June 24, 2011) (available here).  Here is how the opinion starts:

Jaron Brice was a pimp who prostituted under-age girls, among others. He was convicted of various federal sexual abuse crimes, and he was sentenced to 25 years in prison. At his sentencing hearing, the District Court referred to sealed material witness proceedings concerning two victims of Brice’s activities.  After sentencing, Brice asked the District Court to unseal the records of those two material witness proceedings.  The District Court denied the request.  Brice appeals that denial, claiming that the First Amendment guarantees a right of access to material witness proceedings.  See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-80 (1980).  We assume arguendo that the qualified First Amendment right of access to judicial proceedings extends to material witness proceedings.  Even so, under our First Amendment access precedents, the public was not entitled to the records here, which contained “substantial amounts of material of an especially personal and private nature relating to the medical, educational, and mental health progress” of the victims.  United States v. Brice, Nos. 05-405 & 05-406, slip ops. at 2 (D.D.C. Aug. 6, 2010) (orders denying motions to unseal); see Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991).  We affirm the orders of the District Court

June 24, 2011 at 11:19 AM | Permalink


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I am a former prosecutor, now criminal defense attorney.

This was an interesting argument, however, not one that I think was ever going to go anywhere. I am not sure that you are entitled to sealed records being made public if the public itself would not be available to obtain them. However, from a 5th and 6th amendment standpoint I do believe that he should have access to the records through his counsel and they should be made part of the record.


Joseph C. Patituce
Patituce & Associates, LLC
26777 Lorain Road, Suite 503
North Olmsted, Ohio 44070

Posted by: joe patituce | Jun 24, 2011 11:58:22 AM

i have to agree. though the RIGHT to face your accuser was a bedrock of american justice. you can get a case dismissed becasue the WRONG lab tech shows up to testiy aobut a report...but not see the testimony of a witness AGAINST YOU? THAT'S just RETARDED!

Posted by: rodsmith | Jun 24, 2011 2:28:20 PM

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