The rationale behind veiling the evidence from public scrutiny — a move opposed by Raymond “Shrimp Boy” Chow, one of dozens of defendants, and several media outlets — was not out of the ordinary in such cases: information in the files could compromise ongoing investigations and reveal informants.
But Chow’s lawyers are now speaking out against the contention that the judge also sealed the transcripts to save public figures from embarrassment. They said the move hinders their ability to defend their client in the public realm and is a defeat for freedom of speech and the public’s right to know.
On April 8, during negotiations in court over the protective order, Federal Judge Charles Breyer said he knew there was information embarrassing to public people in the wiretaps and he wanted to safeguard their reputations.
“I was the judge that authorized the — some of the wiretaps in this case … I am genuinely concerned about people who appear in some of these wiretaps not being besmirched by allegations or speculation as to whether or not their conduct was criminal,” he said, according to an excerpt of the hearing’s transcripts obtained by The San Francisco Examiner.
He went on, saying, “It’s important that people not — people who are innocently involved in overhears are not subjected to undue speculation as to what their role was, and why the U.S. Attorney or the Grand Jury did this, or that, and so forth … but would involve, in a sense, certain decency in terms of people’s reputations, who may be public people, public individuals, as well.”
That same rationale was also used by the government for why the protective order should be granted.
“There are sensitive materials identifying numerous individuals who are not believed to have engaged in any criminal activities, but who were nonetheless captured on FBI surveillance or documented in FBI reports, for example after being introduced by charged defendants to undercover agents. Such materials, if improperly disclosed, could be used to besmirch these otherwise innocent individuals,” noted the April 8 motion for a protective order.
Chow’s lawyers, Tony Serra and his team, who claim their client is innocent, take issue with this reasoning.
”He knows the politicians, the celebrities who were investigated and through this order of his gagging us, there’s an implication he’s almost protecting their reputation,” Serra said about Breyer.
While requests for protective orders are not common, in cases where wiretaps are used as evidence they are not abnormal, said Laurie Levenson, law professor at Loyola Law School.
“It doesn’t surprise me that it’s part of the court’s reasoning,” she said, but added that, “It’s unusual … this is not something that happens every day.”
But the effectiveness of the protective order is curious, Levenson and a First Amendment-rights group say, because eventually much of that evidence will have to come out in court.
“It’s understandable that the court and the U.S. attorney would want to protect transcripts of people who are participants or are discussed in wiretap transcripts who in fact have not been and will not be charged criminally,” said Peter Scheer with the First Amendment Coalition.
Still, at some point in this case, many of those transcripts are going to be introduced as evidence and thus exposed to public scrutiny, he said.