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Thursday, May 14, 2009

City Paper scores partial win in Scaife divorce case

Posted By on Thu, May 14, 2009 at 2:45 PM

Apologies for the delay in this blog post. It's been a sort of surreal few days. I mean, it's not every week that Marty Freakin' Griffin takes time away from  investigating ministers' sex lives to accuse us of disregarding people's privacy.

But anyway, here's the latest on our efforts to unseal some records in the Scaife matter, which moved Griffin to such concern.

After a hearing before Judge Alan Hertzberg last week, we scored a partial victory. The orders that sealed the case -- and were themselves sealed -- have now been released. The judge apparently agreed with our contention that, no, you can't just seal up a courtroom and everything going on inside it. You have to at least offer some kind of explanation about what you're doing and why. 

As a result of these orders, and testimony in a hearing held last week on the matter, we have a better sense of what motivated the court's actions in the first place. Not only do the Scaifes worry about their personal security and fear of embarrassment, but Mr. Scaife's attorney says that his client's wealth and prominence has been exaggerated. 

Hertzberg has apparently filed two orders sealing this long-running divorce. The first order, filed in 2006, is only a couple sentences long and merely seals all "court papers and dockets." The other, filed in 2007 after the Post-Gazette got hold of some files in the case anyway, is more extensive. It applies to "all hearings, trials, arguments, petitions, motions, and any and all other proceedings."

The truth is, there's not a hell of a lot to this order, making Mr. Griffin's touching -- and no doubt heartfelt -- concern for the Scaifes' privacy somewhat misplaced. We were not seeking juicy details of the Scaifes' personal lives (many of which have already been revealed). We were seeking an explanation about how and why the court gave the Scaifes a courtesy the average divorcing couple doesn't get: the ability to have their dirty laundry aired only in secret.

This is Journalism 101, even if Griffin doesn't recognize it: If somebody says you can't get access to files or meetings that are ordinarily public, you ask why. And we now have an answer to that question.

The 2007 order expresses concern that personal and financial information on record in the case could "cause substantial embarrassment, humiliation and seriously infringe upon the parties' rights to have their personal lives and family matters remain private, without serving any useful purpose in the community." 

The order also contends that "if public access is given to any proceedings in this matter, it will create an increased theft and personal security risk by making public the location, extent and value of real property, artwork and personal property, as well as detailed financial informaion ... that can be misused by those who engage in financial scams and other illegal acts." 

In a hearing last week, attorneys for both Mr. and Mrs. Scaife contended that the estranged couple faced increased security threats after the P-G published documents related to the case.

The nature of these threats remains a bit hazy: There was talk of what may (or may not) have been an attempt to hack into Mrs. Scaife's computer, "cryptic" and vaguely threatening letters from strangers seeking financial help, cars that lingered outside their homes, and so on.

Neither of the Scaifes themselves appeared at the hearing -- instead, their attorneys called each other to the stand to testify. For example, Gary Gentile, a lawyer for Mrs. Scaife, acknowledged that although he couldn't recall the last time Mrs. Scaife had been threatened, he figured things would stay quiet only "until I guess something is published."

But during cross-examination, Mr. Scaife's longtime attorney, Yale Gutnick, seemed to have a hard time pointing to anything in the documents we were seeking that would compromise anyone's privacy or safety. Our ACLU attorney, Vic Walczak, asked Gutnick to explain, for example, what there was in the following paragraph of the 2007 order that jeopardized the Scaife's privacy or security:

The parties, recognizing the importance of safegaurding their private business and personal affairs, entered into a comprehensive confidentiality agreement dated March 16, 2006. The agreement was signed by the parties, their counsel, their experts and all others coming into contact with private information involving the [divorce].

What was the problem with having that information made public? Walczak asked. 

Gutnick's answer: "It clearly implies that there's something to safeguard."

Walczak noted that newspaper accounts have already noted that the case is under wraps. "So the fact that there's a confidentiality agreement," he said, "is not really new to anybody."

"It's new to anybody who hadn't read it," Gutnick answered.

Gutnick also offered a perspective on his client that might surprise some of Scaife's detractors. Scaife is, after all, routinely described as a billionaire who has helped bankroll the modern conservative movement. On the stand, though, Gutnick claimed that both parts of that description were exaggerated. 

When Walczak asked whether Scaife owned a billion dollars in assets, Gutnick's response was, "The answer is no. Not right now."

Similarly, Walczak quoted from the now-famous Vanity Fair story about the Scaife divorce, to assert that "In the 1990s, [Scaife's] gift of $1.8 million to The American Spectator funded investigations into Whitewater and Bill Clinton’s personal life. Gutnick said that contention "as reported is false." (The Arkansas Project was carried out by American Spectator magazine, a beneficiary of considerable largesse from Scaife foundations. But Scaife has previously denied any role in initiating the "investigation.")

Perhaps the biggest question arising from the Vanity Fair piece was ... "what the hell were the Scaifes thinking when they agreed to be interviewed?" The hearing offered an explanation for that too: Attorneys for both Scaifes characterized their clients' participation as a form of "damage control," and said they decided to do interviews only when they got wind of some of what Gutnick called "off the wall" assertions that the magazine would otherwise report. 

Once again, the toughest sell in the room was William Pietragallo, an attorney for Mrs. Scaife who denounced our efforts to open up a tiny portion of the record as a mere pretext. Seeking access to the docket index, he said, "is just another way of parading the Scaife divorce in the public eye ... What they want to do is drag this divorce through the media one more time." 

For Pietragallo and the other Scaife attorneys, the outcome of Hertzberg's decision isn't all bad. While Hertzberg gave us access to the orders sealing the case, he kept the docket -- an index of the date and general nature of every action taken in the case -- under seal. Again, Hertzberg wrote that revealing the information would harm the Scaifes.

As a result, it's impossible to know, for example, how many court hearings there have been in this case, how many people have been called as witnesses for it, or anything else. Not only is the case taking place inside a black box -- but we don't know how large the box is, or how much stuff is inside. All we have now is an explanation for why it is locked. 

I'll have more on some of the issues arising from this dispute in next week's edition. And we're currently talking with its attorneys about what our next legal step, if any, will be. Hertzberg's ruling was a mixed decision, and accordingly, we have mixed feelings about it. But we're glad that the judge agreed with what is, after all, a really important principle: Even assuming that sealing a courtroom is necessary, the public is entitled to an explanation about why it's being done. It's not enough for a couple of attorneys and a judge to say, "Let's just keep this to ourselves, shall we?"

In fact, I'll close by quoting the words of Ron Barber, an attorney who represented the Tribune-Review in its effort to unseal the will of the late Senator John Heinz. The fact that that door of a courthouse "is open to the public is one of the things that makes us different from the rest of the world. And today that door was open to the public once again" -- even if just a little bit.

Somewhat ironically, though, in this case Barber was representing Scaife -- and his efforts to keep the door closed.

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