Sample letter seeking to unseal an arrest warrant and affidavits supporting arrest warrant
THERESE BOTTOMLY
MANAGING EDITOR/NEWS
Nov. 5, 2003
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
STATE OF OREGON, Plaintiff,
v.
Dean White; Luis Miguel Valenzuela; Adrian Filberto Gutierrez; Terrelle Lashaun Tucker; Jesus Ramon Gastelum; and Abraham Paredes Silva.
Defendants.
REQUEST FOR RELEASE OF ARREST WARRANT AND AFFIDAVITS IN SUPPORT OF ARREST WARRANT
I. REQUEST TO INTERVENE
I, Therese Bottomly, managing editor of The Oregonian, a daily newspaper in Portland, Oregon, respectfully move for an order permitting them to intervene for the limited purpose of seeking an order unsealing certain records and documents on file in this case.
Several state and federal courts have held that intervention is the proper procedural device to be used by a non-party to challenge orders that deny public access to judicial proceedings and court documents. In re Associated Press, 162 F3d 503 (7th Cir 1998); In re Subpoena to Testify Before Grand Jury, 864 F2d 1559, 1561 (11th Cir 1989); News American Div., Hearst Corp. v. State, 447 A2d 1264, 1271 (Md 1982).
Even where formal “intervention” has not occurred, it is nevertheless “well settled that representatives of the news media have standing to contest court orders restricting public access to legal proceedings.” Mississippi Publishers v. Coleman, 515 So2d 1163, 1164-65 (Miss 1987). Accord United States v. Brooklier, 685 F2d 1162 (9th Cir 1982) (newspaper publisher and its reporter have standing to challenge orders denying them access to criminal proceedings, id. at 1165; “***those excluded from the proceeding must be afforded a reasonable opportunity to state their objections ***.” Id. at 1167-68).
Although the Oregon Supreme Court has not ruled directly on the procedural issue of intervention by a member of the public or press in a judicial proceeding, it has held, in Oregonian Publishing Co. v. O’Leary, 303 Or 297, 301-02, 736 P2d 173 (1987), that “[m]embers of the media and public may *** assert in their own behalf ***” the open courts requirement of the Oregon Constitution.
Several circuit court judges in Oregon have therefore allowed intervention to the news media in similar circumstances. See, e.g., State v. Davey, Multnomah County Circuit Court No. C8811-37609 (Order dated November 6, 1989, per Judge Frankel); State v. Hurwitz, Multnomah County Circuit Court No. C98-1139654 (plea agreement unsealed by Judge Redding, pursuant to Oregonian motion, August 21, 2000).
Based on these authorities, I respectfully request the court to treat this letter as a request to have certain court records unsealed.
II. REQUEST TO UNSEAL DOCUMENTS
I move the court for an order releasing for public inspection the affidavit or affidavits filed in support of the warrant that was issued for the arrest of defendants Dean White; Luis Miguel Valenzuela; Adrian Filberto Gutierrez; Terrelle Lashaun Tucker; Jesus Ramon Gastelum; and Abraham Paredes Silva. It is the understanding of the moving parties that these documents have been sealed pursuant to orders issued by the Honorable Michael Marcus.
Neither the Oregon Supreme Court nor the United States Supreme Court has decided whether there is a right of access to materials filed in connection with an arrest warrant application, either under the common law or under the First Amendment or other state or federal constitutional provisions. However, a right of access to search warrant materials has been recognized by several lower courts, both at common law and under the First Amendment. Thus, the Washington Supreme Court has held that there is a “presumption of openness” as a matter of common law that applies to a search warrant, affidavits filed in support of an application for a warrant, “and the records pertaining thereto.” Seattle Times Co. v. Eberharter, 713 P2d 710, 711 (Wash 1986). The U.S. Court of Appeals for the Fourth Circuit has agreed: “a newspaper has a common law right of access to affidavits supporting search warrants ***.” Matter of Application & Aff. For a Search Warrant, 923 F2d 324, 326 (4th Cir 1991).
Other courts have held that there is a right of access to such documents grounded in the First Amendment. “We are persuaded that the first amendment right of public access does extend to the documents filed in support of search warrant applications.” In re Search Warrant for Secretarial Area — Gunn, 855 F2d 569, 573 (8th Cir 1988).
Furthermore, whether the right is grounded in common law or in the First Amendment, ” *** [T]he party seeking access is entitled to a presumption of entitlement to disclosure. It is the burden of the party seeking closure *** to present facts supporting closure and to demonstrate that available alternatives will not protect his rights. ***.” Oregonian Pub. v. U.S. Dist. Court for Dist. of Or., 920 F2d 1462, 1467 (9th Cir 1990), cert denied sub nom Wolsky v. Oregonian Pub. Co., 501 US 1210, 111 S Ct 2809, 115 L Ed 2d 982 (1991).
And if a court decides that denial of public access is appropriate, it must state the reasons for its conclusions: “[t]he court must not base its decision on conclusory assertions alone, but must make specific factual findings.” Id. at 1466.
Here, there is no compelling reason for sealing the affidavits that were submitted in support of the arrest warrant for the defendants in this case. They are in custody, and there is no risk of flight. Sealing the warrants is not justified on the theory that it is necessary to avoid “tainting” the jury pool, for the fact of the defendants’ arrests in connection with the death of Marcus Moultrie is already public knowledge, and it is unlikely that public disclosure of the arrest warrant materials will widen the universe of people who are aware of the arrests and the pendency of the charges against the defendants. Similarly, disclosure of the materials will not prejudice any ongoing investigation, or tip off any supposed co-conspirators or witnesses.
In these circumstances, the affidavit or affidavits filed in support of the arrest warrant for Dean White; Luis Miguel Valenzuela; Adrian Filberto Gutierrez; Terrelle Lashaun Tucker; Jesus Ramon Gastelum; and Abraham Paredes Silva should be made available immediately for public inspection. The order sealing these documents should be vacated. If the sealing order is not vacated, the court should make specific findings of fact that justify the sealing.
Respectfully submitted,
Therese Bottomly
Managing editor/news
cc:
Brenda Allen
Multnomah County District Attorney’s Office
1021 SW Fourth Avenue, Room 600
Portland, OR 97204
Attorneys for the defendants:
Scott Raivio
Diane Rader
David Wagner
Gayle Kvernland
Craig Gabriel
Downing Bethune
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