Glaze of Secrecy Kept in Donuts Sentencing Case

     (CN) - A federal judge must explain why he sealed documents that helped persuade him to be lenient in sentencing a pair who ripped off Dunkin' Donuts, the 1st Circuit ruled.
     Three years ago, former Dunkin' Brands communications director Carolyn Kravetz admitted to a nearly $400,000 scheme in which she steered business to a graphics firm run by Boris Levitin, in return for kickbacks of one-half of the gross receipts.
     The Canton, Mass.-based holding company controls the Dunkin' Donuts and Baskin-Robins chains.
     In exchange for guilty pleas, federal prosecutors in Massachusetts agreed to recommend a 22-month sentence for Kravitz and an 18-month sentence for Levitin.
     U.S. District Judge Joseph Tauro let the pair off with a non-jail sentence of 32 months probation.
     Jim Edwards, who covers the advertising industry for CBS-affiliate Bnet.com, had been watching the case closely before the guilty pleas were entered.
     In monitoring the docket, he noticed that both submitted sealed memos and letters to convince the judge that they deserved a merciful sentence.
     When Edwards moved to dip into these documents, Kravetz sent the court a terse letter.
     It stated: "The defendant, Carolyn Kravetz[,] respectfully objects to the motion to unseal the file in the above-referenced matter. In support thereof the defendant says the file contains matters that are personal to her and it would be inappropriate and unreasonably detrimental to permit a journalist to access the file."
     Judge Tauro agreed to keep all of the memos and letters sealed.
     A three-judge panel of the Boston-based federal appeals court showed some deference to the judge last week, refusing to mandate immediate disclosure but requiring an explanation of the decision.
     While the court found that Edwards has no right to access pre-trial subpoenas, it said sentencing subpoenas are fit for public consumption.
     "For starters, sentencing memoranda, which bear directly on criminal sentencing in that they seek to influence the judge's determination of the appropriate sentence, fall squarely into the category of materials that a court relies on in determining central issues in criminal litigation," Judge Jeffrey Howard wrote for the panel. "We can discern no principled basis for affording greater confidentiality as a matter of course to sentencing memoranda than is given to memoranda pertaining to the merits of the underlying criminal conviction, to which we have found the common law right of access applicable."
     Letters submitted on the defendants' behalf were another matter for the court.
     "There are obvious differences between third-party letters submitted to the court and sentencing memoranda," Howard wrote. "Such letters are often unguarded and informal, and they are frequently emotion-laden. But their purpose is not so different. Having concluded that the common law right of access attaches to sentencing memoranda, it is but a small step to also conclude that the right also extends to sentencing letters submitted in connection with those memoranda. As illustrated by the defendants' sentencing submissions in this case, such letters are central to, and serve as an evidentiary basis for, the defendants' arguments for leniency."
     On remand, Tauro must explain why he kept the information sealed.
     "Whether the balance of interests justifies withholding from the public the identity of the authors, or the entire content of each of the relevant letters, is a matter to be decided by the district court," Howard wrote. "We note only that, where the public's right of access competes with privacy rights, 'it is proper for a district court, after weighing competing interests, to edit and redact a judicial document in order to allow access to appropriate portions of the document.'"
     Though these redactions could obscure private medical information, Levitin may have trouble shielding health conditions he described in open court.
     "In his public sentencing hearing, he articulated not only the full panoply of ailments from which he suffers, but also the dire predictions for his health should he fail to take immediate steps to improve his condition," Howard wrote.