Mathew Martoma is “charged with conspiracy to commit
securities fraud, in violation of 18 U.S. Code § 371, and with two counts
of securities fraud, in violation of 15 U.S. Code §§ 78(b) and 78ff,
-->
17 C.F.R. §§ 240.10b–5 and 240.10b5–2,
and 18 U.S. Code § 2.” U.S. v. Martoma, 2014 WL 164181 (U.S.District Court for the Southern District of New York 2014). His trial is going on now. You can read about how and why he came to be
charged with these crimes in the New York
Times story you can find here.
In an opinion he issued on January 9, the federal judge who
has the case ruled on Martoma’s “request that certain motions in limine be
filed under seal, and that the courtroom be closed when these motions in
limine are discussed.” U.S. v. Martoma, supra. The judge explains that on December 6, 2013,
Martoma and the prosecution
filed cross-motions in limine concerning
certain evidence related to Martoma's expulsion from Harvard Law School in 1999
(the `Law School Evidence’). The Government contends that Martoma
(1) used computer software to generate a forged law
school transcript, and then submitted the falsified transcript to Federal
judges in connection with his application for a clerkship;
(2) was then interviewed by several judges, on the
basis of the falsified law school transcript;
(3) during disciplinary proceedings at Harvard Law
School, altered the date of an e-mail he submitted as mitigating evidence; and
(4) during the disciplinary proceedings,
submitted a computer forensic report concerning the date on which the email had
been sent, without disclosing to the disciplinary committee that he had formed
the company that had prepared the forensic report.
U.S. v. Martoma, supra.
The judge also explains that the prosecution (“the
Government”)
does not seek to introduce the Law
School Evidence during its case-in-chief . . . , but argues that such evidence
may be admissible `to rebut particular arguments made by the defendant’ or for
impeachment purposes. . . .
More specifically, the Government
contends that `[i]f the defendant places the lack of forensic evidence at issue
in his defense,’ the Law School Evidence is `relevant to and probative of the
defendant's knowledge of the importance of minimizing electronic evidence that
could establish his guilt and capacity to alter such evidence to fit his
version of events.’ . . .
The Government also contends that the
Law School Evidence may be admissible for purposes of impeachment under Rule 608(b) of the Federal Rules of Evidence. . . .
U.S. v. Martoma, supra.
The judge began his analysis of Martoma’s requests by noting
that in evaluating whether
sealing and closure are appropriate,
courts must consider (1) `the common law right of public access to judicial
documents’ and (2) `the public and the press['s] . . . “qualified 1st Amendment
right to attend judicial proceedings and to access certain judicial
documents.”’ Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (U.S.Court of Appeals for the 2d Circuit 2006) (quoting Hartford
Courant Co. v. Pellegrino, 380 F.3d 83 (U.S. Court of Appeals for the2d Circuit 2004)).
It is, of course, beyond dispute that `the press and
general public have a constitutional right of access to criminal trials.’ Globe
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Moreover, with
respect to pre-trial proceedings in criminal cases, the Second Circuit has
observed that `[i]t makes little sense to recognize a right of public access to
criminal courts and then limit that right to the trial phase of a criminal
proceeding, something that occurs in only a small fraction of criminal cases. In
re The Herald Co., 734 F.2d 93 (U.S. Court of Appeals for the 2d Circuit 1984).
-->
Accordingly, `the courts of this country
recognize a general right to inspect and copy public records and documents,
including judicial records and documents.’ Nixon v. Warner Communications,Inc., 435 U.S. 589 (1978). Courts `administer [this right] by
balancing the [objecting party's] interest in confidentiality and privacy
against the public's interest in inspection.’ In re Application of New
York Times Co., 577 F.3d 401 (U.S. Court of Appeals for the 2d Circuit
2009).
In `weighing the interests advanced by
the parties in light of the public interest and the duty of the courts . . . .
[there] is [a] presumption . . . in
favor of public access to judicial records.’ Nixon v. Warner Communications, Inc., supra.
U.S. v. Martoma, supra.
The court also explained that, under the U.S. Court of
Appeals for the 2d Circuit’s precedents, a district court judge has to follow a
four-step process in deciding whether to close a courtroom:
First, the district court must
determine . . . if there is a substantial probability of prejudice to a compelling
interest of the defendant . . . which closure would prevent. Compelling
interests may include the defendant's right to a fair trial; privacy interests .
. . and danger to persons or property. Second, if a substantial probability of
prejudice is found, the district court must consider whether `reasonable
alternatives to closure cannot adequately protect’ the compelling interest that
would be prejudiced by public access.
Third, if such alternatives are found
wanting, the district court should determine whether . . . the prejudice to the
compelling interest `override[s] the qualified 1st Amendment right of access.’
Fourth, if the court finds closure is warranted, it should devise a closure
order that . . . is narrowly tailored to that purpose.
U.S. v. Martoma, supra
(quoting U.S. v. Doe, 63 F.3d 121
(U.S. Court of Appeals for the 2d Circuit 1995) (quoting In re the Herald Co., 734 F.2d 93 (U.S. Court of Appeals for the 2d Circuit 1984)).
The judge then took up Martoma’s arguments, noting that he
claimed “sealing and closure regarding the motions in limine are
appropriate because (1) the Law School Evidence is a `source of great
embarrassment to Martoma’; and (2) `this information would risk tainting
prospective jurors and biasing them against Martoma.’” U.S. v.
Martoma, supra. He explained that,
under the test quoted above, he was required to consider whether there was “`a
substantial probability of prejudice’” to Martoma which closure and sealing
would prevent. U.S. v. Martoma, supra.
He also noted that courts have found that the `mere fact
that judicial records may reveal potentially embarrassing information’” is not,
alone, “`sufficient reason to block public access.’” U.S. v.
Martoma, supra (quoting Siedle v.
Putnam Invs., Inc., 147 F.3d 7 (U.S. Court of Appeals for the 1st Circuit
1998)).
The judge then applied these standards to the evidence at
issue, noting that the
core elements of the Law School
Evidence are not in dispute. It is undisputed that (1) Martoma falsified the
grades reflected in his law school transcript, changing several Bs to As; (2)
copies of the falsified transcript were then submitted to twenty-three U.S.
Court of Appeals judges in support of Martoma's clerkship applications; (3)
Martoma then interviewed for a clerkship with three federal judges, knowing
that the interviews were premised on his falsified law school record; (4) when
his conduct became the subject of a disciplinary proceeding at Harvard Law
School, he submitted a computer forensic report concerning a disputed email
without disclosing to the disciplinary committee that he was an owner of the
computer forensic company that had prepared the report; and (5) he was expelled
as a result of his misconduct.
The reliability of the information
weighs against Martoma's claimed privacy interest
U.S. v. Martoma, supra.
The judge also found that the evidence
does not involve the type of medical,
health-related, family, or personal financial matter to which courts grant the
greatest protection. Moreover, because the right to practice law is a
state-granted privilege that puts an individual's character and fitness at
issue, this type of dishonesty in law school-and in connection with obtaining
an important position in the federal courts-cannot be said to have `no public
ramifications.’ U.S. v. Amodeo, 71 F.3d 1044 (U.S. Court of Appeals for the 2d Circuit 1995).
U.S. v. Martoma, supra. He therefore held that “the embarrassment
Martoma will suffer if the Law School Evidence is disclosed does not trump the
presumptive right to public access that attaches to substantive pre-trial
motions.” U.S. v. Martoma, supra.
The judge then took up Martoma’s argument that “`there is a
substantial probability of prejudice’ to his 6th Amendment right to a fair trial if the motions in limine are not sealed and closure is
not granted.” U.S. v. Martoma, supra. He noted that “[t]his Court recognizes that
the Defendant has a `compelling interest” in a fair trial”, but ultimately
found that “Martoma has not demonstrated a “substantial probability of
prejudice” to his right to a fair trial if sealing and closure are not granted”. U.S. v.
Martoma, supra.
As to the “substantial probability of prejudice”, the judge
explained that pretrial publicity
`does not . . . lead in every criminal case to an
unfair trial. Recent more highly publicized cases indicate that most potential
jurors are untainted by press coverage despite widespread publicity. . . . Thus
pervasive publicity, without more, does not automatically result in an unfair
trial.’
Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513 (U.S. Court of Appeals for the 9th Circuit 1988). . . . `In assessing the prejudicial nature of such publicity, th[e] court looks ‘not simply to its effect on individual viewers but to its capacity to inflame and prejudice the entire community.’ Seattle Times Co. v. U.S. Dist. Court, supra (quoting Columbia Broad. Sys., Inc. v. U.S. Dist. Court, 729 F.2d 1174 (U.S. Court of Appeals for the 9th Circuit 1984)). . . . `[T]he publicity must create a “pattern of deep and bitter prejudice” . . . throughout the community.’ Columbia Broad. Sys., Inc. v. U.S. Dist. Court (quoting Irvin v. Dowd, 366 U.S. 717 (1961)).
U.S. v. Martoma, supra.
The judge then pointed out that in considering the level of
prejudice Martoma
will suffer absent sealing and closure,
it must be acknowledged that there is no direct connection between the Law
School Evidence and the insider trading charges [he] faces.
The Law School Evidence relates to events that took place fourteen years ago,
and is thus entirely unrelated to the alleged insider trading that is the
subject of the Indictment.
Moreover, the nature of the Law School
Evidence is not so inflammatory that it is likely to prejudice the entire
community against Martoma. Indeed, the Law School Evidence is far less
inflammatory than the charges in the Indictment, which have received extensive
publicity.
Under these circumstances, this Court
cannot find that [Martoma] has demonstrated that `there is a substantial
probability of prejudice to a compelling interest of the defendant’ absent
sealing and closure.
U.S. v. Martoma, supra.
Finally, the district court judge pointed out that
[e]ven if the Court were to conclude
that Martoma has met his burden as to the first Doe factor, he has not demonstrated that ‘”reasonable alternatives
to closure [and sealing] cannot adequately protect” the compelling interest
that would be prejudiced by public access.’ U.S. v. Doe, supra (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)). Numerous
courts in high-profile cases have recognized that a thorough voir dire may be
adequate to address concerns about the effect of pre-trial publicity on a
defendant's right to a fair trial. . . .
Martoma has not explained
why voir dire will not permit the Court to identify
prospective jurors who may have been exposed to the Law School Evidence and to
determine whether such exposure has produced bias.
U.S. v. Martoma,
supra.
The judge therefore held that Martoma
has not overcome the strong presumption
of public access that applies to the motions in limine at
issue here. Accordingly, his application for sealing and closure regarding
these motions and related submissions must be denied.
U.S. v. Martoma,
supra.
As this story from January 13 explains, it was then not
clear if the judge would let the Law School Evidence be admitted at the
trial. The story also gives more details
about the specific changes Martoma made in his law school transcript. I was not able to find any more recent
stories that addressed the issue.
No comments:
Post a Comment