Saturday, September 08, 2012

Case o' The Week: Two Seal, or Not Two Seal - That is the Question (Dodged by the Ninth) -- Guerrero, Competency Hearings, and Interlocutory Appeals

Wrong not two seal?

Who knows? In a question of first impression, the Ninth declines to entertain an interlocutory appeal (or a writ of mandamus) when a district court refuses to seal competency proceedings and filings.
United States v. Guerrero, 2012 WL 3764709 (9th Cir. Aug. 31, 2012), decision available here.

Players: Decision by Judge Murguia, joined by District Judge Ezra. Dissent by Judge Reinhardt.

Facts: Guerrero and his co-defendant Sablan face federal capital charges for the murder of a prison guard. Id. at *1. Guerrero moved for a competency hearing and provided neuropsych reports. Id. He was then evaluated by the BOP, whose psychs submitted additional reports. Id. 

The Hon. Mary H. Murguia
Guerrero ultimately filed a motion to seal all competency proceedings and included more exhibits –a social history and a long memo chronicling the interactions between defense counsel and Guerrero. Id. While the government took no position on the motion to seal, co-defendant Sablan opposed it. Id. The district court denied the motion to seal the competency proceedings, and Guerrero took an interlocutory appeal. Id.

Issue(s): “Guerrero requests that we direct the district court to conduct Guerrero’s competency proceeding and file all documents related to it under seal, while preserving codefendant Sablan’s access.” Id. at *1. “We first must address whether we have jurisdiction to review this non-final judgment, pursuant to either the collateral order doctrine or a writ of mandamus.” Id. “The jurisdictional questions appear to be matters of first impression in this circuit, as well as the other circuit courts.” Id.

Held: “We conclude that we do not have jurisdiction over the appeal pursuant to either the collateral order doctrine or a petition for a writ of mandamus, and therefore dismiss.” Id. “[T]he district court did not clearly err in finding a qualified First Amendment right of access to mental competency hearings.” Id. at *8. “The district court’s conclusion that Guerrero’s right to a fair trial does not overcome the public’s First Amendment right of access is not clearly erroneous.” Id. at *9. “Guerrero has not established an indisputable right to the issuance of the writ, and we deny the petition for mandamus.” Id. at *11.

Of Note: Dissenting Judge Reinhardt “strongly disagree[s] with the majority’s conclusion.” Id. at *13. In a persuasive argument, Judge Reinhardt observes that this jurisdictional question of first impression isn’t about Guerrero: it is about the entire class of litigants (defendants and the public) who will be aggrieved by unreviewable sealing orders. First Amendment interests get short-shrift, because erroneous orders sealing the hearings are now also unreviewable. Id. at *14-*15. Moreover, the materials at issue in this particular case are extraordinarily private, revealing “a lengthy and sordid history of varied forms of abuse and mental difficulties; a history that will be revealed in the course of his competency hearing.” Id. at *11. 

It is a powerful dissent by the Ninth’s expert on competency –Guerrero’s new rule on this issue of first impression merits a second look by the en banc Court.

How to Use: Judge Murguia assures us that our conversations with our clients won’t be chilled by the unavailability of interlocutory appeal of a sealing decision. Id. at *4. Many defense folks will feel differently. Here the attorney filed a “77-page memorandum chronicling defense counsel’s interactions with Guerrero.” Id. at *1. Wise to do that in future hearings, if you now know that (likely adverse) co-defendant attorneys could be reading this memo? The practical impact of Guerrero is to chill what prudent defense counsel will risk providing in competency hearings. Unfortunately, this cautious approach makes for lousy records for district courts struggling with tough competency determinations.  
For Further Reading: For an interesting description of this prison killing and the press attention already focused on the case, see article here.

Image of two seals from

Image of the Honorable Judge Mary Murguia from

Postscript: Sincere thanks to the anonymous poster who offered a quick correction to a major mistake. (And apologies to Judge Murguia for erroneously elevating her twin sister!)

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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