United States District Court, D. Massachusetts
A. O'Toole, Jr. United States District Judge.
Globe Media Partners, LLC (the “Globe”) has moved
for the disclosure of the amounts of public funds paid to
defense counsel and to service providers, such as experts and
investigators, retained by them for the defense of this case.
(Mot. of Boston Globe Media Partners, LLC for Public Access
to Criminal Justice Act Materials (dkt. no. 1645).) The
motion purports to rest upon the provisions of the Criminal
Justice Act, codified at 18 U.S.C. § 3006A. For the
reasons set forth below, the present motion is denied without
prejudice to renewal at an appropriate time in the future.
initial matter, as the defendant points out in his opposition
to the Globe's motion, the payment regime authorized
under § 3006A is inapplicable to capital
cases. Congress has established separate
procedures for the payment of defense counsel and related
costs in non-capital cases, § 3006A, and in federal
capital prosecutions and habeas proceedings, 18 U.S.C. §
3599. See Martel v. Clair, 132 S.Ct. 1276, 1284-85
(2012). The latter provisions govern here.
statutory procedures provide for public access to and/or
affirmative disclosure of publicly funded defense costs, but
they disparately provide for when that is to occur.
Under § 3006A, such information is (subject to some
exceptions) to be “made available to the public by the
court upon the court's approval of the payment.” 18
U.S.C. § 3006A(d)(4)(A). In contrast, for capital cases,
the “amounts paid under this paragraph for services in
any case shall be disclosed to the public, after the
disposition of the petition.” Id. §
of the phrase “after the disposition of the
petition” is a bit problematic. Taken literally, it
would on its face seem to apply only to cases involving an
actual habeas “petition.” But the procedures in
§ 3599 plainly pertain both to original federal capital
prosecutions and to federal habeas review of prior federal or
state capital prosecutions. See id. §
3599(a)(1), (2); see also Martel, 132 S.Ct. at
1284-85. It would seem anomalous for Congress to mandate
disclosure of defense costs, as well as the timing therefor,
only with respect to habeas proceedings and not with respect
to original capital prosecutions. A more plausible conclusion
is that the phrase “after the disposition of the
petition” is a slip of the legislative
It is noteworthy that the provision was enacted as part of
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See AEDPA, Pub. L. No.
104-132, § 903(b), 110 Stat. 1214 (amending 21 U.S.C.
§ 848(q)(10), predecessor of 18 U.S.C. §
3599(g)(3)). Congressional debate and attention were at the
time focused on expediting capital habeas procedures,
see, e.g., H.R. Conf. Rep. No. 104-518, at 111
(1996), and it seems very likely that the use of the term
“petition” in § 3599(g)(3) is an inadvertent
reflection of that focus. There are no objective indications
in the legislative record that Congress meant to distinguish
between habeas proceedings and original federal capital
prosecutions in providing for the disclosure of defense
costs. Rather, the evident intent was to provide for the
public disclosure of specified costs of defense after
proceedings in a particular pending case had concluded. In
other words, considering that the prescription was probably
intended to apply both to original capital cases as well as
capital habeas proceedings, I think the likely intended
meaning of the phrase “after the disposition of the
petition” was “after the case is
is still an ambiguity: when is a case “over”? A
non-frivolous argument could be made that a capital
prosecution is “over” after the entry of final
judgment by the trial court. But that is not the traditional
understanding. Typically, a case is still regarded as
“pending” (and therefore not “over”)
when it is on direct appeal. While the appeal is pending,
there remains the possibility of remand for retrial, and that
possibility invokes concerns about protecting legitimate
defense interests from compromise by public disclosure.
these reasons, I conclude that the Globe, and the public
generally, will be entitled to the information requested at
the appropriate time, but that time is not now. Effect must
be given to the congressional directive, as I understand it,
that the disclosure is to be made “after the
disposition of the [case].” That will not occur at
least until the conclusion of proceedings on direct appeal.
Globe's Motion for Public Access to Criminal Justice Act
Materials (dkt. no. 1645) is DENIED WITHOUT PREJUDICE.
 The government has not taken a
position on the Globe's motion.
 Annotations to the statute suggest
there were at least four other drafting errors. See
18 U.S.C.A. § 3599.
 I do not find persuasive the
suggestion made by the defendant that “petition”
was meant to refer to some hypothetical future petition.
See United States v. Gonzalez, 150 ...