United States District Court, N.D. Ohio
S. GWIN, UNITED STATES DISTRICT JUDGE
case presents the question whether, in a criminal
prosecution, the government can withhold potentially relevant
and helpful evidence from a defendant. And this case presents
the question whether the government should give a defense
attorney with a high security clearance at least a
non-classified summary of the general nature of the material
withheld when the Court has ordered that defense attorney to
share the summary with no one unless the court approves
disclosing the summary.
27, 2019, the government filed notice of filing a Classified
Ex Parte, In Camera, and Under Seal Motion for a Protective
Order under the Classified Information Procedures
Shortly thereafter, the Court issued an order granting the
government's request to withhold discovery from the
defense. With limited information regarding the
government's case and less information regarding the
defense case, the Court found the proffered materials not
helpful to the defense case.
moved the Court for reconsideration of that order. Defendant
argued that it had not been given notice or an earlier chance
to object to it. The government opposed the
8, 2019, the Court granted Defendant's motion in part,
issuing a narrow ruling that, inter alia, required
the government to make a secure location available to Defense
attorney Federal Public Defender Stephen Newman to view the
classified materials by Wednesday, July 10,
2019. The Court found that this would strike the
proper balance between the public's national security
interests and Defendant's right to a fair trial.
attorney Newman is a retired Marine Colonel. Since 1984, he
has had a clearance and he holds a Top Secret-Sensitive
Compartmented Information (TS-SCI) security clearance, making
him eligible to have access to information classified at or
above Top Secret.
the order, the Court concluded that classified information
needed to be protected but that defense counsel was better
positioned to show that evidence could be relevant or helpful
to the defense. The Court doubted that the withheld
information would give Defendant any new defense options but
the Court understood it had little information to make that
Court's order required Attorney Newman not disclose to
anyone any information from the review without a Court order.
The Court believes that defense counsel Newman's lengthy
military service and high-level clearance made the risk that
classified information would be disclosed almost
after the Court's ruling, the government filed a notice
of interlocutory appeal from the order and moved to stay the
district court proceedings. This morning, July 11, 2019, the
Court held a telephone hearing with counsel for the parties.
At that hearing, the government represented that it had never
given defense counsel any description or summary of what the
withheld material was.
finding that the government had given no summary of the
nature of the materials, the Court directed the government to
disclose generic descriptions without classified information.
The Court surmised that Defense Attorney Newman might agree
with the Court's finding that the withheld materials gave
no new defense avenues. If so, the summaries and Defense
Attorney Newman's withdrawal of the request to examine
the documents could end the need for appeal.
Court never directed the government to provide classified
information in the summaries. Instead, the Court ordered the
government to give general summaries without classified
information, classified sources or classified methods.
Court believed summaries might end defense counsel's
request to examine the withheld materials.
the hearing, the parties noted that, as the Classified
Information Security Officer had used the wrong social
security number when attempting to verify defense counsel
Newman's clearance, the government had not yet verified
Newman's clearance, but that this would likely be
resolved as soon as the correct social security number was
is set for Monday, July 15, 2019.
Classified Information Procedures Act (CIPA), 18 U.S.C.App.
3, provides a set of procedures for federal courts to follow
when the government seeks to protect classified information
from disclosure.” CIPA is primarily a procedural statute.
CIPA does not give admissibility rules for classified
information or otherwise alter criminal procedure rules. Nor
does CIPA expand or limit the government's discovery
obligations. Instead, ...