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Media Had Right to Open Drug Kingpin’s Hearing

(CN) - A federal judge snubbed the First Amendment when he closed the doors to the sentencing hearing of a Mexican drug cartel kingpin without letting the Houston Chronicle challenge the order, the 5th Circuit ruled.

Oziel Cardenas-Guillen, who once headed Mexico's notorious Gulf Cartel, was taken into U.S. custody in 2007 and charged with conspiracy to distribute large amounts of cocaine and marijuana, and for violating the continuing-criminal-enterprise statute aka "the drug kingpin statute."

A federal judge agreed with the government that security concerns justified transferring Cardenas' case from Brownsville, Texas, to Houston. The case moved slowly with the parties filing most documents under seal.

But Hearst Newspapers dba the Houston Chronicle said the court failed to follow the proper procedures in sealing the filings.

In 2009, the Chronicle repeatedly asked the court to notify it of any future proceedings in the case, or make on-the-record findings if it planned to close the proceedings from the public. The newspaper also sought to unseal any previously sealed documents, or explain why they should be sealed.

The government subsequently moved to close Cardenas' sentencing hearing for reasons of public safety, and the court granted the motion in a sealed order.

After a local television station learned that the hearing was scheduled for Feb. 25, 2010, and sought confirmation, the court covertly rescheduled the hearing for Feb. 24.

Despite the court's efforts at subterfuge, the Chronicle still caught wind of the hearing, sent a reporter to the courtroom and had one of its lawyers drafted a hand-written motion requesting to be heard, or allowed to be present, at the hearing. Though the hearing was closed, Cardenas' wife and daughter, as well as federal agents and victims were allowed to attend.

After the sentencing hearing ended, the District Court denied the Chronicle's motion as moot.

Two days after the hearing the Chronicle filed a motion to intervene, which the court granted. Ultimately, however, the court denied the Chronicle's request for public notice of all future hearings and also refused to give it the chance to be heard in future cases that the court might close off.

The Chronicle appealed and challenged the court's order denying as moot its request to open Cardenas' sentencing hearing, its order denying as moot the paper's request for an opportunity to be heard prior to closure, and its order denying the Chronicle's request for public notice of all future hearings.

Upon its review of the Chronicle's appeal, a three-judge panel sitting in New Orleans found that the press and public have a First Amendment right of access to sentencing hearings. The court violated Chronicle's due-process rights by refusing to give notice of the hearing or the chance to be heard before sealing the proceeding, according to the 28-page ruling.

Because Cardenas' sentencing has already happened, the 5th Circuit "reversed" the District Court's order denying the Chronicle's requests for notice and a chance to be heard before the court's closure, as well as the court's order denying the paper's motion to open the proceeding.

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