See letter with endorsement order of Judge Loretta A. Preska (pdf)
Application for audio access to the trial scheduled 10 May 2021 in the matter of United States v. Steven Donziger, No. 19-CR-561 (SDNY)
On 30 April 2021, an international panel of international human rights lawyers and legal academics monitoring criminal contempt proceedings in the United States (US) against human rights advocate, Mr. Steven Donziger, applied for audio access to the trial scheduled to begin 10 May 2021 in the Court of Judge Loretta A. Preska, Southern District of New York. By way of an endorsement to the application letter dated 4 May 2021, Judge Preska made an order denying the request. The endorsement order stated: “the court adheres to its order of April 6, 2021 (dkt. no. 254) and April 30, 2021 (dkt. no. 275).” Additional reasons were not provided.
Judge Preska’s orders of 6 April and 30 April 2021 had denied audio access to the trial proceedings, citing United States Federal Rules of Criminal Procedure 53, “Courtroom Photographing and Broadcasting Prohibited.”[1] and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)[3] the in support of her prohibition of audio access to the trial.
The monitors’ application letter noted that the monitoring panel members have had audio access to pretrial proceedings and stated that:
In-person or audio access has been critical to our ability to monitor the case. Written transcripts alone are insufficient to assess the tone and demeanour of the participants. Necessary international travel for in-person monitoring is not possible due to the COVID-19 pandemic. Domestic travel in the United States is also limited or impossible for our monitors who do not reside in New York.
The monitors’ application letter argued that:
… the plain language of Rule 53 indicates that its purpose is to limit the public broadcasting of proceedings through public media, such as radio, so as to prevent members of the media from undertaking activities that would detract from the rights of the parties to a fair trial, unduly distract participants during proceedings, or otherwise interfere with the administration of justice. Rule 53 is not intended for the purpose of constraining public access and scrutiny of judicial proceedings or for the purpose of limiting the defendant’s right to a fair and public hearing by an independent and impartial tribunal in accordance with the International Covenant on Civil and Political Rights,[2] which at international law is binding at all levels in the United States. Public transparency of criminal proceedings is an essential safeguard to protect both rights of the defendant and the public interest.
The monitors’ application letter further argued that:
… the Order of 6 April 2021 references the CARES Act, which stipulates that certain proceedings may be conducted by video or teleconferencing (rather than in person) during the pandemic. These provisions for online conduct of proceedings ensure the right to a fair and public hearing and the right to counsel in the context of the necessary public health restrictions posed by the COVID-19 pandemic. However, the CARES Act is silent regarding the issue of public broadcasting. Accordingly, it is our submission that the CARES Act provisions are not relevant to the issue of audio access to the trial of Mr. Donziger [emphasis in original].
The case of Steven Donziger, a human rights lawyer, is the first matter being monitored as part of a developing initiative to establish international monitoring panels to evaluate trials in the United States (“IMPETUS”). Each IMPETUS panel member is monitoring the proceedings in their personal capacity on a pro bono basis and has agreed to perform the work in an independent and impartial manner without instructions from any person, group, or organization.
The IMPETUS panel is monitoring the proceedings according to the standards set out in the OSCE Trial Monitoring manual[4] and evaluating against standards set out in binding international law, including the International Covenant on Civil and Political Rights[5] ratified by the United States in 1992, applicable customary international law, and other relevant international human rights standards.
Former US Ambassador Stephen Rapp and three other IMPETUS volunteers will seek to monitor the proceedings in person in the New York courtroom beginning 10 May 2021. Other members of the international monitoring team, including LRWC Executive Director, Catherine Morris, will be unable to monitor the proceedings in person due to their location in other countries or other parts of the US, and travel constraints resulting from the COVID-19 pandemic. Judge Preska’s order of 4 May 2021 means the monitors located outside New York will be unable to monitor the trial by audio telephone connection.
References
[1] United States Code, 2006 Edition, Supplement 5, Title 18 – Crimes and Criminal Procedure, Rule 53, available at: https://www.govinfo.gov/content/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-app-federalru-dup1-rule53.pdf.
[2] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
[3] Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 15002(b), 134 Stat 281, 528 (2020).
[4] Organization for Security and Co-operation in Europe (OSCE), Trial Monitoring: A Reference Manual for Practitioners, Revised edition. OSCE, 2012, available at: https://www.osce.org/odihr/94216
[5] Supra note 2.
[6] Report of monitors: United States v. Steven Donziger, No. 19-CR-561 (LAP); 11-CIV-691 (LAK), United States Federal Court, South New York Trial Division, available at: https://www.lrwc.org/wp-content/uploads/2020/10/ObserversReport.USvDonziger.Hearing.5October2020.FF_.pdf.
