I read this, and I still don't believe this Judge!
Aug. 26, 2003, 11:27PM
Chronicle shut out of 2 more hearings
Fastow transcript still denied release
By MARY FLOOD
Copyright 2003 Houston Chronicle
A federal judge held two more closed hearings in the criminal case against Andrew Fastow and two other former Enron executives on Tuesday and refused to unseal the transcript of a July 28 hearing he also held in secret.
U.S. District Judge Kenneth Hoyt said he might continue to close hearings if he thinks it necessary.
"There are matters that do not need to be discussed in public in ways that embarrasses or humiliates the government or the defense and particularly the court," he said.
Hoyt denied a motion by the Houston Chronicle to make public the record of the closed hearing in July and the two on Tuesday.
"Embarrassment is not an exception to the First Amendment," Chronicle Editor Jeff Cohen said. "With all due respect to the judge, we will continue to press him to open these hearings until he provides a better explanation."
One Tuesday conference was held in the morning with prosecutors and the lawyers for defendant Ben Glisan and a second in the afternoon with prosecutors and lawyers for Fastow, Glisan and Daniel Boyle.
All three have pleaded not guilty to charges of fraud in connection with various deals at Enron. Fastow faces nearly 100 counts himself.
Hoyt denied a Chronicle request to be allowed to attend the two Tuesday hearings. The Chronicle's reporter and lawyer were told to leave the hallway outside the second hearing by court security officers, who said Hoyt ordered them to do so. The officers said the two would be detained if they did not leave.
The judge made clear that the defendants' lawyers had not asked that the hearings be closed but that he had closed them himself. He said judges commonly hold sessions in chambers and that his goal is to ensure a fair trial for both sides.
Hoyt said it would be impossible to discuss publicly such questions as how much evidence has been obtained, when more evidence might be available or what the two sides recommend for a case schedule.
In other Enron cases and in most criminal cases such questions are routinely asked in open court.
The file in the Fastow case states that the July secret proceeding addressed potential trial dates and pretrial exchange of possible evidence.
Hoyt said Tuesday that in 10 to 30 days he will issue an order that will clarify the situation and render moot the Chronicle's motion to unseal the secret hearing transcripts.
Bill Ogden, attorney for the Chronicle, asked the judge to unseal all the transcripts immediately and, because the case file has not been available in the clerk's office for several weeks, to start posting documents on a public Web site already being used in the large Enron civil cases.
"The Constitution prohibits secret hearings, except for compelling reasons. I heard no compelling reason articulated today," Ogden said. "The Supreme Court said it best: People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."
Hearings should be secret only when there is no less restrictive alternative, he argued
Although attorneys for the defendants deferred to Hoyt, Enron Task Force prosecutor Andrew Weissmann said the government did not oppose the Chronicle motion to unseal the transcripts.
But the judge said the closed hearing was justified because it enabled him and the two sides to "put their arms around a discovery order and a trial schedule." And, Hoyt said, he need not reserve the right to continue having secret pretrial hearings because his authority to do so is "ordained."
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