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Tuesday, June 10, 2014

Ind. Decisions - "7th Circuit holds do-over after secret hearing was recorded but public argument wasn’t"

The ILB has had a number of posts on the way the Indiana appellate courts correct errors in their opinions, including this one from July 12,2013, headed "Current process for dealing with corrected appellate opinions poses perils." The most recent is this one from June 5th, applauding the way a recent correction of a Supreme Court opinion was accomplished. Also of great interest was this one from May 25, 2014, about our nation's highest court: "Final Word on U.S. Law Isn’t: SCOTUS Keeps Editing."

Several times the ILB has held up the 7th Circuit procedures as a model; that Court posts the correction sheet just as it does the initial opinion. Here is an example from the paintball case.

Now it appears that this emphasis to transparency extends to the recording of oral argument. Yesterday Martha Neil of the ABA Journal reported:

News last week of an unusual closed-door federal appeals court argument Wednesday from which even defense counsel was excluded on was quickly followed by news of another rare occurrence the same day in the same case: The public portion of the argument wasn't recorded.

Then on Friday, another unexpected development occurred: The Chicago-based 7th U.S. Circuit Court of Appeals announced that it would hold a do-over on Monday of public oral arguments in the Adel Daoud terrorism case, the Chicago Tribune reports. It is believed to be the first time this has ever occurred in the 7th Circuit.

Although a stenographer with the required security clearance was present to record what was said in the closed portion of the Wednesday appellate arguments, court employees wrongly assumed they weren't supposed to record what was said in public arguments before a "secret hearing" was announced by Judge Richard Posner, the Chicago Tribune reports.

"We screwed up, and there is no excuse," circuit clerk Gino Agnello told the newspaper, explaining that watching a Department of Justice team sweep the courtroom beforehand had been "intimidating" to the employees responsible for the courtroom recording equipment in the case. It is the only hearing he knows of in which oral arguments were not recorded.

Defense lawyer Thomas Anthony Durkin not only wasn't allowed to attend the government's secret session Wednesday before a three-judge panel after the courtroom was cleared but wasn't notified in advance and wasn't allowed to object, he complained afterward to the Chicago Tribune.

Veteran appellate lawyer Joel Bertocchi, told the newspaper this is the only time he knows of that the 7th Circuit has held a closed-session oral argument with only one side present.

Durkin told the Tribune he was astounded to learn no record was made of the public argument and noted that he himself had had to refile briefs in the case due to technical violations of pleading rules. "For a court that makes you cross every 't' and dot every 'i' and count every word of every filing, I would have expected more," he said.

Here is the June 6th Chicago Tribune story by Jason Meisner. It begins:
In an unprecedented mulligan, the federal appeals court in Chicago decided to redo oral arguments in a local terrorism case after it was revealed earlier this week that court personnel failed to record the initial hearing.

The 7th U.S. Circuit Court of Appeals made the surprise announcement on Friday, one day after the court clerk made headlines by acknowledging his staff had “screwed up” in not recording the audio of historic arguments over whether attorneys for Adel Daoud should be allowed to view confidential surveillance documents filed in the case.

The order noted that the step was not legally necessary but that the court took the unusual action because “the inadvertent failure to record the argument occurred in a high-profile case involving very serious charges.”

It was believed that the replay -- scheduled for Monday -- would mark the first time that the 7th Circuit twice held oral arguments for the same case.

Posted by Marcia Oddi on June 10, 2014 08:19 AM
Posted to Indiana Decisions