Newsday reports on our government servants from ICE making certain that society is safe. Today it’s ICE’s safety in the courtroom version, where our observant and ever-faithful avengers of America kept a close on eye on anyone who might appear to be a defendant-lover, exploiting that constitutional loophole, a public trial.
A normally mild-mannered Brooklyn federal judge hit the roof and hinted at further action against federal authorities after learning that government agents aggressively questioned a courtroom spectator in a Middle Eastern currency transaction case.
The blow-up by Judge Eric Vitaliano came during the closing phase of the trial of five men last week. They are charged with being part of an illegal remitting business, which prosecutors say funneled cash to Yemen from 2003 to 2006 without proper government authorization. The case is scheduled for closing arguments today.
Vitaliano became angered after he learned from defense attorneys that two agents with U.S. Immigration and Customs Enforcement confronted a friend of one of the defendants and asked to see his passport, according to a transcript of an impromptu hearing held before the judge later Wednesday.
As the story states, Judge Vitaliano was way past “not amused” by the conduct of the ICE agents. The idea that a person, exercising the constitutional right to observe a trial, would be subject to interrogation by government agents is quite an outrage.
But that’s only part of the problem here.
Assistant U.S. Attorney Michael Warren explained to Vitaliano that the ICE agents were acting out of caution because there had been some witness intimidation in the case. Warren apologized to the court.
But Vitaliano wasn’t happy with the government’s action and let everyone know.
“The United States attorney’s office does not run my courtroom, Mr. Warren. Anybody in the public is entitled to come in here, unless I close the courtroom, not you,” said Vitaliano. “No one is to be interrogated in my courtroom. … That is outrageous, the record will so reflect it. I am flabbergasted about it. We’ll address it after this case is over.”
As is virtually guaranteed, the AUSA sought to rationalize the impropriety rather than consider how it might relate to that oath about defending the Constitution. On the other hand, the judge expressed his outrage at the conduct, stating that it would be “address[ed] after this case is over.”
So here’s my question. What is he going to do about it? Will he give the AUSA, or perhaps the ICE agents, a very strong tongue-lashing? Will he draw an inference to be applied to all future proceedings that ICE agents are disinclined to feel any strong compulsion to respect constitutional rights? Will he hold the agents in contempt?
The problem, you see, is that there are many unaffiliated violations of constitutional rights that are wrong, harmful, and defy remedy. While the judge may be outraged, it begs the question: What can he do to the agents of the government of the United States of America when they behave this way? And if he can do nothing other than a harsh harangue, then there’s nothing that can be done to stop these agents.
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“exercising the constitutional right to observe a trial” ????
Yeah, that was awkward. I tried to shortcut it around the right to a public trial rather than give a full explanation. Mea culpa.
I think it’s accurate or close enough. The public has the right to access to court information, including the right to attend trials in open court. (The right to public access is what the NYCLU is arguing – as an intervenor – in our Aref case now at the Second Circuit. There were completely classified arguments and dispositive decisions in the case – which not even security cleared defense counsel were shown, in violation of CIPA, the Sixth Amendment, and the right of public access to at least some of it.)
Since accused terrorists generally can’t pay for private counsel, I have yet to run head-on into the state’s secrets doctrine. But I cannot begin to imagine how one functions when the defense isn’t allowed to engage in argument, etc. of “classified” information. Another of those mind-boggling concepts.
My view has always been that if the government chooses to deny the defense access to all information and evidence, that’s fine. They just elect not to prosecute. Anything else strikes as absurd.
It is definitely absurd. But they went right ahead and prosecuted, despite us having gone to the Circuit on an interlocutory mandamas petition, which lost on procedural grounds. Now we’re back there on appeal – we’ll see what happens.