Fine legal point a hurdle as media seek Bridgegate plotters' names

A federal appeals panel on Monday weighed First Amendment rights against the privacy interests of individuals who have not been charged with a crime, as it considered whether the names of unindicted accomplices in the George Washington Bridge lane-closing scandal should be provided to the news media.

Nearly two hours of oral argument seemed to indicate that the three-judge panel's ruling may hinge on an arcane legal point - whether the list of so-called unindicted coconspirators, already provided by prosecutors to the defense, supplements the public indictment or is discovery material that is shielded from the public.

If the media lose on that question, Judge Kent A. Jordan told their lawyer, "it's game over."

The judges, of the U.S. Court of Appeals for the Third Circuit in Philadelphia, at times appeared skeptical of arguments made by each party - the media, an unindicted coconspirator known as John Doe, and Paul Fishman, U.S. attorney for the district of New Jersey.

Doe is appealing U.S. District Judge Susan D. Wigenton's order last month requiring prosecutors to disclose the names of the unindicted coconspirators to the public, after a group of news organizations, including the parent company of the Inquirer, the Daily News, and Philly.com, sued the government for that information.

The Third Circuit temporarily blocked Wigenton's order to hear Doe's argument.

Prosecutors have already provided the information to the defendants, Bridget Anne Kelly, Gov. Christie's former deputy chief of staff, and Bill Baroni, a high-ranking Christie appointee at the Port Authority of New York and New Jersey, in the bridge scheme.

The indictment alleges that Kelly and Baroni conspired with "others," including former Port Authority official David Wildstein, to punish Fort Lee Mayor Mark Sokolich for not endorsing Christie's reelection, by closing access lanes to the bridge. The closings caused days of traffic jams in September 2013.

Kelly and Baroni are set to face trial in September; Wildstein pleaded guilty and is cooperating with the government. Baroni appeared in court with his attorneys Monday to observe the proceeding.

Jenny Kramer, Doe's attorney, argued that the conspirator list is not what's known in legal parlance as a "bill of particulars," essentially an extension to the indictment.

Court precedent holds that the public has a presumptive right of access to such information under the First Amendment.

Instead, Kramer said, prosecutors shared the list with the defense as a routine matter. Disclosing the names would inappropriately provide the public a "front-row seat" to the private discovery process, she said.

"Why did you wait so long to intervene in this case?" Judge Thomas L. Ambro asked Kramer during the opening moments of argument.

The media sued in January to gain access to the names; Doe intervened in May, just hours before prosecutors were to provide the names under Wigenton's order.

Kramer said Doe intervened at the "appropriate time," when it was clear that Fishman would not appeal the order.

Fishman agreed with Kramer's argument that the conspirator list was not a supplement to the indictment. Fishman said his personal appearance at Monday's argument showed how important he thought it was to keep the names secret for the time being.

"If it was so important, you would have appealed," Ambro responded.

The judges said Wigenton had acted as if the government believed the conspirator letter was a "bill of particulars," and that Fishman did nothing to correct her.

"Why didn't the government do anything to say . . . 'Judge, there's a misapprehension here?' " Jordan asked Fishman.

The prosecutor said he did not have a good answer and added, "We could and should have been clearer."

Fishman in January not only provided the list to the defense, he also sent it in a letter to Wigenton, requesting that she seal it.

The news organizations argue that this made the list more than mere discovery - it was a judicial record.

Moreover, media attorney Bruce Rosen said, Baroni and Kelly specifically requested a "bill of particulars" that named the unindicted coconspirators, and that's exactly what prosecutors provided.

"It walks like a duck," Rosen said. "It quacks like a duck. It is a duck."

Fishman said he had rejected the defendants' legal request but provided the names anyway to help them prepare for trial.

The purpose of a bill of particulars, Jordan told Rosen, is to give the defense notice when the indictment is deficient. But Jordan described the indictment in the bridge case as extraordinarily detailed.

"It is," Rosen said, but he added that the unindicted coconspirators "permeated" the indictment.

Even if the media win the argument that the list is a supplement to the indictment, the public's presumptive right to access can be outweighed by compelling government interests, such as the privacy rights of unindicted coconspirators.

Jordan noted that it was possible the case would not reach trial, or that Doe might not be called as a witness. Even if he were, prosecutors do not refer to such witnesses at trial as "unindicted coconspirators." (Fishman and Kramer both said they did not know whether Doe would be called as a witness.)

Why, Jordan asked, did the media need the list now?

Because of its First Amendment rights, Rosen said.

Ambro asked Rosen what injury the press would suffer under the First Amendment if the panel declined to affirm Wigenton's order granting access to the names.

Rosen said the names would show "how deeply the alleged conspiracy infiltrated state government" and the Port Authority. "This has been center stage in New Jersey politics" and, he noted, "at times in national politics."

Ambro asked Fishman whether the public had a First Amendment right to know whether government officials were performing their jobs or pursuing political vendettas, as is alleged in the bridge case.

Fishman said yes, but that the press "at this juncture" was not entitled to his opinion about what role the unindicted coconspirators played in the bridge scheme.

The judges also asked each party whether it would be permissible to release the list of unindicted coconspirators while redacting Doe's name. Kramer and Fishman objected.

A redacted list "only further narrows the universe" of people who could be John Doe, Kramer argued.

Jordan seemed incredulous. "You're making a process-of-elimination argument here," he said.

Rosen, the media attorney, said he expected a ruling from the three-judge panel within a matter of weeks.

aseidman@phillynews.com

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@AndrewSeidman