Arcane legal issue could keep Bridgegate list secret

bridgegate_gw
Tollbooth lanes (lower left) leading to the George Washington Bridge in Fort Lee, N.J.

On one level, the legal fight over access to the names of unindicted accomplices in the George Washington Bridge lane-closure case pits the public's First Amendment rights against privacy interests of individuals who haven't been charged with a crime.

Yet the case may turn on an arcane argument over whether the list of so-called unindicted coconspirators was part of a routine sharing of evidence among lawyers or carries greater legal significance as a supplement to the public indictment.

The more obscure dispute will play out in court Monday as a group of news organizations including the Inquirer, an attorney for an unindicted coconspirator known as John Doe, and a federal prosecutor argue before a panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia.

A key issue: Does the list of unindicted coconspirators help define the parameters of the government's case against two of Gov. Christie's former allies, as the media argue?

Or did the government simply provide the list to the defense and a federal judge as part of the back-and-forth exchange of evidence that helps the parties prepare for trial, as Doe and prosecutors contend?

How the Third Circuit answers those questions could determine whether the names of the unindicted coconspirators are made public or remain secret until trial, or possibly forever.

Prosecutors have said the list includes "any other individual about whom the government has sufficient evidence to designate as having joined the conspiracy."

In May 2015, U.S. Attorney Paul Fishman unsealed a grand jury indictment charging Bridget Anne Kelly, Christie's former deputy chief of staff, and Bill Baroni, a former top Christie appointee at the Port Authority of New York and New Jersey, in an alleged scheme to punish the mayor of Fort Lee, Bergen County, for refusing to endorse the Republican governor's reelection in 2013.

Kelly and Baroni pleaded not guilty and face trial in September. Former Port Authority official David Wildstein also was charged; he pleaded guilty and is cooperating with the government.

Prosecutors say that in September 2013, Kelly, Baroni, Wildstein, and "others" conspired to close access lanes leading from Fort Lee to toll booths on the bridge, causing massive traffic jams for days.

They concocted a sham cover-up story of a traffic study, the indictment says. The unnamed "others" mentioned in the indictment are the unindicted coconspirators.

In January, prosecutors provided Kelly, Baroni, and a federal judge the list of coconspirators. The news organizations then sued the government for access to the list, arguing that the public had a right to such records under the First Amendment. The government opposed the motion, arguing that public disclosure of the names would violate the unindicted coconspirators' privacy.

Last month, U.S. District Judge Susan D. Wigenton ordered the government to grant the media access to the list, ruling that privacy did not amount to a "compelling government interest" needed to overcome the public's presumptive right to access.

Hours before prosecutors were to make the list public, Doe intervened, arguing that the disclosure would deprive him of due process under the law and cause him irreparable harm. Wigenton disagreed, but Doe appealed to the Third Circuit, which temporarily blocked Wigenton's order, leading to Monday's arguments.

Doe says the coconspirator list is not legally designated as a "bill of particulars," which the Third Circuit in a 1985 decision described as a supplement to an indictment that "is designed to define and limit the government's case."

Because such documents "thus set the parameters of the government's case, we think public access to them serves the same societal interests served by access to the charging documents," the Third Circuit said in the 1985 case, United States v. Smith.

In the bridge case, Doe says, the conspirator list was provided to the defense as part of the discovery process, which is generally shielded from the public.

Prosecutors also provided the list to the court so the judge could seal it. The news organizations argue, in part, that the delivery of the list to the judge makes it part of the judicial record and therefore accessible to the public under common law.

"It would be beyond ironic if an act taken to safeguard certain information from premature public disclosure inadvertently triggered the public's right to access that information," prosecutors wrote in a May 27 court filing.

The media companies note that the defense had requested a "bill of particulars" and that even though the government opposed that motion, it still provided the list of unindicted coconspirators.

What's more, media attorney Bruce Rosen wrote, "Doe's arguments would allow any prosecutor to completely nullify the public's First Amendment and common-law rights . . . by simply renaming a bill of particulars or deciding not to file it with the clerk."

Doe says something else is afoot.

"In the last analysis, the media want access to the conspirator letter not because it is a bill of particulars or a judicial record (it is not) or because the government's interest in disclosing that letter outweighs Doe's privacy interest (it does not), but because it wants to know what happened in the Bridgegate affair," Doe's attorney Jenny Kramer wrote in a June 1 filing.

"That is its job, and it is an important one," she wrote. "But creating a public right of access to a list of unindicted coconspirators at this point in the proceedings is simply not an appropriate way to do so."

aseidman@phillynews.com

856-779-3846 @AndrewSeidman