7th Circuit holds do-over after secret hearing was recorded but public argument wasn’t

Constitutional Law

7th Circuit holds do-over after secret hearing was recorded but public argument wasn’t

Jun 9, 2014, 10:00 pm CDT

News last week of an unusual closed-door federal appeals court argument Wednesday from which even defense counsel was excluded was quickly followed by news of another rare occurrence the same day in the same case: The public portion of the argument wasn’t recorded.

Then on Friday, another unexpected development occurred: The Chicago-based 7th U.S. Circuit Court of Appeals announced that it would hold a do-over on Monday of public oral arguments in the Adel Daoud terrorism case, the Chicago Tribune reports. It is believed to be the first time this has ever occurred in the 7th Circuit.

Although a stenographer with the required security clearance was present to record what was said in the closed portion of the Wednesday appellate arguments, court employees wrongly assumed they weren’t supposed to record what was said in public arguments before a “secret hearing” was announced by Judge Richard Posner, the Chicago Tribune reports.

“We screwed up, and there is no excuse,” circuit clerk Gino Agnello told the newspaper, explaining that watching a Department of Justice team sweep the courtroom beforehand had been “intimidating” to the employees responsible for the courtroom recording equipment in the case. It is the only hearing he knows of in which oral arguments were not recorded.

Defense lawyer Thomas Anthony Durkin not only wasn’t allowed to attend the government’s secret session Wednesday before a three-judge panel after the courtroom was cleared but wasn’t notified in advance and wasn’t allowed to object, he complained afterward to the Chicago Tribune.

Veteran appellate lawyer Joel Bertocchi, told the newspaper this is the only time he knows of that the 7th Circuit has held a closed-session oral argument with only one side present.

Durkin told the Tribune he was astounded to learn no record was made of the public argument and noted that he himself had had to refile briefs in the case due to technical violations of pleading rules. “For a court that makes you cross every ‘t’ and dot every ‘i’ and count every word of every filing, I would have expected more,” he said.

His client, now 20, is accused of plotting to detonate a bomb outside a Chicago bar in 2012. At issue in the appeal is whether a federal district court judge erred by requiring the government to provide defense access to surveillance materials and search warrant applications made to the Foreign Intelligence Surveillance Act court.

Additional and related coverage: “Chicago-area teen accused of supporting terrorism overseas”

Chicago Tribune: “Terrorism suspect’s lawyer clashes with appeals judge in do-over”

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