Monday, January 20, 2014

The Law Student, Forgery and the Motion in Limine

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Mathew Martoma is “charged with conspiracy to commit securities fraud, in violation of 18 U.S. Code § 371, and with two counts of securities fraud, in violation of 15 U.S. Code §§ 78(b) and 78ff, 
--> 17 C.F.R. §§ 240.10b–5 and 240.10b5–2,  and 18 U.S. Code § 2.”  U.S. v. Martoma, 2014 WL 164181 (U.S.District Court for the Southern District of New York 2014).  His trial is going on now.  You can read about how and why he came to be charged with these crimes in the New York Times story you can find here.


In an opinion he issued on January 9, the federal judge who has the case ruled on Martoma’s “request that certain motions in limine be filed under seal, and that the courtroom be closed when these motions in limine are discussed.”  U.S. v. Martoma, supra.  The judge explains that on December 6, 2013, Martoma and the prosecution



filed cross-motions in limine concerning certain evidence related to Martoma's expulsion from Harvard Law School in 1999 (the `Law School Evidence’). The Government contends that Martoma



(1) used computer software to generate a forged law school transcript, and then submitted the falsified transcript to Federal judges in connection with his application for a clerkship;



(2) was then interviewed by several judges, on the basis of the falsified law school transcript;



(3) during disciplinary proceedings at Harvard Law School, altered the date of an e-mail he submitted as mitigating evidence; and



(4) during the disciplinary proceedings, submitted a computer forensic report concerning the date on which the email had been sent, without disclosing to the disciplinary committee that he had formed the company that had prepared the forensic report.



U.S. v. Martoma, supra.



The judge also explains that the prosecution (“the Government”)



does not seek to introduce the Law School Evidence during its case-in-chief . . . , but argues that such evidence may be admissible `to rebut particular arguments made by the defendant’ or for impeachment purposes. . . .



More specifically, the Government contends that `[i]f the defendant places the lack of forensic evidence at issue in his defense,’ the Law School Evidence is `relevant to and probative of the defendant's knowledge of the importance of minimizing electronic evidence that could establish his guilt and capacity to alter such evidence to fit his version of events.’ . . .



The Government also contends that the Law School Evidence may be admissible for purposes of impeachment under Rule 608(b) of the Federal Rules of Evidence. . . .



U.S. v. Martoma, supra.



The judge began his analysis of Martoma’s requests by noting that in evaluating whether



sealing and closure are appropriate, courts must consider (1) `the common law right of public access to judicial documents’ and (2) `the public and the press['s] . . . “qualified 1st Amendment right to attend judicial proceedings and to access certain judicial documents.”’ Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (U.S.Court of Appeals for the 2d Circuit 2006) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (U.S. Court of Appeals for the2d Circuit 2004)).



It is, of course, beyond dispute that `the press and general public have a constitutional right of access to criminal trials.’ Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Moreover, with respect to pre-trial proceedings in criminal cases, the Second Circuit has observed that `[i]t makes little sense to recognize a right of public access to criminal courts and then limit that right to the trial phase of a criminal proceeding, something that occurs in only a small fraction of criminal cases. In re The Herald Co., 734 F.2d 93 (U.S. Court of Appeals for the 2d Circuit 1984).
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Accordingly, `the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.’ Nixon v. Warner Communications,Inc., 435 U.S. 589 (1978). Courts `administer [this right] by balancing the [objecting party's] interest in confidentiality and privacy against the public's interest in inspection.’ In re Application of New York Times Co., 577 F.3d 401 (U.S. Court of Appeals for the 2d Circuit 2009).



In `weighing the interests advanced by the parties in light of the public interest and the duty of the courts . . . . [there] is [a] presumption . . .  in favor of public access to judicial records.’ Nixon v. Warner Communications, Inc., supra.



U.S. v. Martoma, supra.



The court also explained that, under the U.S. Court of Appeals for the 2d Circuit’s precedents, a district court judge has to follow a four-step process in deciding whether to close a courtroom:



First, the district court must determine . . . if there is a substantial probability of prejudice to a compelling interest of the defendant . . . which closure would prevent. Compelling interests may include the defendant's right to a fair trial; privacy interests . . . and danger to persons or property. Second, if a substantial probability of prejudice is found, the district court must consider whether `reasonable alternatives to closure cannot adequately protect’ the compelling interest that would be prejudiced by public access.



Third, if such alternatives are found wanting, the district court should determine whether . . . the prejudice to the compelling interest `override[s] the qualified 1st Amendment right of access.’ Fourth, if the court finds closure is warranted, it should devise a closure order that . . . is narrowly tailored to that purpose.



U.S. v. Martoma, supra (quoting U.S. v. Doe, 63 F.3d 121 (U.S. Court of Appeals for the 2d Circuit 1995) (quoting In re the Herald Co., 734 F.2d 93 (U.S. Court of Appeals for the 2d Circuit 1984)).



The judge then took up Martoma’s arguments, noting that he claimed “sealing and closure regarding the motions in limine are appropriate because (1) the Law School Evidence is a `source of great embarrassment to Martoma’; and (2) `this information would risk tainting prospective jurors and biasing them against Martoma.’”  U.S. v. Martoma, supra.  He explained that, under the test quoted above, he was required to consider whether there was “`a substantial probability of prejudice’” to Martoma which closure and sealing would prevent.  U.S. v. Martoma, supra. 



He also noted that courts have found that the `mere fact that judicial records may reveal potentially embarrassing information’” is not, alone, “`sufficient reason to block public access.’”  U.S. v. Martoma, supra (quoting Siedle v. Putnam Invs., Inc., 147 F.3d 7 (U.S. Court of Appeals for the 1st Circuit 1998)).



The judge then applied these standards to the evidence at issue, noting that the



core elements of the Law School Evidence are not in dispute. It is undisputed that (1) Martoma falsified the grades reflected in his law school transcript, changing several Bs to As; (2) copies of the falsified transcript were then submitted to twenty-three U.S. Court of Appeals judges in support of Martoma's clerkship applications; (3) Martoma then interviewed for a clerkship with three federal judges, knowing that the interviews were premised on his falsified law school record; (4) when his conduct became the subject of a disciplinary proceeding at Harvard Law School, he submitted a computer forensic report concerning a disputed email without disclosing to the disciplinary committee that he was an owner of the computer forensic company that had prepared the report; and (5) he was expelled as a result of his misconduct. 



The reliability of the information weighs against Martoma's claimed privacy interest



U.S. v. Martoma, supra.



The judge also found that the evidence



does not involve the type of medical, health-related, family, or personal financial matter to which courts grant the greatest protection. Moreover, because the right to practice law is a state-granted privilege that puts an individual's character and fitness at issue, this type of dishonesty in law school-and in connection with obtaining an important position in the federal courts-cannot be said to have `no public ramifications.’  U.S. v. Amodeo, 71 F.3d 1044 (U.S. Court of Appeals for the 2d Circuit 1995).



U.S. v. Martoma, supra.  He therefore held that “the embarrassment Martoma will suffer if the Law School Evidence is disclosed does not trump the presumptive right to public access that attaches to substantive pre-trial motions.”  U.S. v. Martoma, supra. 



The judge then took up Martoma’s argument that “`there is a substantial probability of prejudice’ to his 6th Amendment right to a fair trial if the motions in limine are not sealed and closure is not granted.” U.S. v. Martoma, supra.  He noted that “[t]his Court recognizes that the Defendant has a `compelling interest” in a fair trial”, but ultimately found that “Martoma has not demonstrated a “substantial probability of prejudice” to his right to a fair trial if sealing and closure are not granted”.  U.S. v. Martoma, supra. 



As to the “substantial probability of prejudice”, the judge explained that pretrial publicity



`does not . . . lead in every criminal case to an unfair trial. Recent more highly publicized cases indicate that most potential jurors are untainted by press coverage despite widespread publicity. . . . Thus pervasive publicity, without more, does not automatically result in an unfair trial.’


Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513  (U.S. Court of Appeals for the 9th Circuit 1988). . . . `In assessing the prejudicial nature of such publicity, th[e] court looks ‘not simply to its effect on individual viewers but to its capacity to inflame and prejudice the entire community.’ Seattle Times Co. v. U.S. Dist. Court, supra (quoting Columbia Broad. Sys., Inc. v. U.S. Dist. Court, 729 F.2d 1174 (U.S. Court of Appeals for the 9th Circuit 1984)). . . . `[T]he publicity must create a “pattern of deep and bitter prejudice” . . . throughout the community.’  Columbia Broad. Sys., Inc. v. U.S. Dist. Court (quoting Irvin v. Dowd, 366 U.S. 717 (1961)).



U.S. v. Martoma, supra. 



The judge then pointed out that in considering the level of prejudice Martoma



will suffer absent sealing and closure, it must be acknowledged that there is no direct connection between the Law School Evidence and the insider trading charges [he] faces.  The Law School Evidence relates to events that took place fourteen years ago, and is thus entirely unrelated to the alleged insider trading that is the subject of the Indictment.



Moreover, the nature of the Law School Evidence is not so inflammatory that it is likely to prejudice the entire community against Martoma. Indeed, the Law School Evidence is far less inflammatory than the charges in the Indictment, which have received extensive publicity.



Under these circumstances, this Court cannot find that [Martoma] has demonstrated that `there is a substantial probability of prejudice to a compelling interest of the defendant’ absent sealing and closure.



U.S. v. Martoma, supra. 



Finally, the district court judge pointed out that          



[e]ven if the Court were to conclude that Martoma has met his burden as to the first Doe factor, he has not demonstrated that ‘”reasonable alternatives to closure [and sealing] cannot adequately protect” the compelling interest that would be prejudiced by public access.’ U.S. v. Doe, supra (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)). Numerous courts in high-profile cases have recognized that a thorough voir dire may be adequate to address concerns about the effect of pre-trial publicity on a defendant's right to a fair trial. . . .



Martoma has not explained why voir dire will not permit the Court to identify prospective jurors who may have been exposed to the Law School Evidence and to determine whether such exposure has produced bias.



U.S. v. Martoma, supra. 



The judge therefore held that Martoma



has not overcome the strong presumption of public access that applies to the motions in limine at issue here. Accordingly, his application for sealing and closure regarding these motions and related submissions must be denied.



U.S. v. Martoma, supra. 



As this story from January 13 explains, it was then not clear if the judge would let the Law School Evidence be admitted at the trial.  The story also gives more details about the specific changes Martoma made in his law school transcript.  I was not able to find any more recent stories that addressed the issue.

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