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August 6, 2009 6:57 PM

Davis Wright Seeks to Unseal 'Secret' Trial

Posted by Brian Baxter

UPDATE: Aug. 7, 3:24 p.m. Judge Stephen Wilson has issued an order granting Davis Wright's motion to intervene.

After being arrested in 2001 for his role in a plot to bomb a California mosque and the office of Lebanese American congressman Darrell Issa, former Jewish Defense League activist Earl Krugel pleaded guilty to a conspiracy charge and received a 20-year prison sentence.

While serving that sentence at a medium-security federal prison in Phoenix he was murdered while exercising in a prison rec yard in November 2005. David Jennings, a known white supremacist, bludgeoned Krugel to death by hitting him five times in the head with a concrete paving stone.

A year later Krugel's widow, Lola, sued the U.S. government under the Federal Tort Claims Act seeking damages for the prison authorities' failure to classify Jennings as a risk to other prisoners and confine him to a higher-security facility. According to reports at the time, Krugel had been transferred to the Phoenix prison just three days before his death.

But unlike most other civil suits, the two-day bench trial in July before U.S. district court judge Stephen Wilson in Los Angeles was held almost entirely in secret. Wilson ruled in favor of the government, but that decision is also under seal.

"It's quite remarkable, I don't think I've seen anything like it in my 25-plus years of practice," says Kelli Sager, media chair at  Davis Wright Tremaine who is representing four media groups that filed a motion to intervene on Tuesday seeking access to the trial transcript: the Los Angeles Times, AP, California Newspaper Publishers Association and The Reporters Committee for Freedom of the Press. (Hat Tip: The Reporters Committee.)

"Other than hearing that the ruling was for the government, we can't find out why," Sager says. "His order dismissing part of the claims against the government was publicly available and is attached to our papers."

According to the Los Angeles Times, which wrote extensively about the case last month when Wilson ordered the courtroom closed, the secrecy was intended to protect Bureau of Prisons policies regarding rooting out inmates with gang affiliations and preventing them from harming others.

After the trial, Wilson issued an order asking the government whether parts of the transcripts could be released. But the government's response on July 31 was also filed under seal, so Davis Wright doesn't know what has been designated for release, if anything. That led the firm to file its motion requesting the unsealing of court documents and trial transcripts.

Sager says the Krugel case is one of the first she's seen closed for the entire trial. "It may happen in national security or Guantánamo cases, but this is a civil tort case," she says.

Davis Wright is regular outside counsel to the L.A. Times and regularly represents the CNPA and RCFP. (Click here and here for previous Am Law Daily stories on Davis Wright's First Amendment exploits.)

The U.S. attorney's office in Los Angeles is representing the government through Leon Weidman, chief of the office's civil division, and assistant U.S. attorney David Pinchas. Representing Lola Krugel are Benjamin Schonbrun, Paul Hoffman, and Michael Seplow from California's Schonbrun DeSimone Seplow Harris & Hoffman.

Sager, who's being assisted by media and First Amendment partner Alonzo Wickers IV and associate Jeff Glasser, says that the government has yet to respond to the firm's motion and isn't aware of any scheduled hearings.

Unless, of course, that's also under seal.

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