Since Graber vs. Bobbydecided Thursday by Judge J. Philip Calabrese (ND Ohio):
In 2001, an Ohio jury found John Graber guilty of committing rape and gross sexual assault against two underage victims, for which he was sentenced to a total of twenty years in prison. Graber pursued numerous appeals to the Ohio Court of Appeals and the Ohio Supreme Court, each of which upheld his convictions and sentences. In 2004, Graber filed a writ of habeas corpus in federal court pursuant to On February 9, 2006, the court denied Graber’s petition. In its opinion, the Court named the minor victims by name.
Recently, more than sixteen years after this notice was published, one of the underage victims learned that her full name, the name of another underage victim and details of criminal offenses were publicly available. This minor victim, interested party Jane Doe, is now seeking an order, in Graber’s habeas proceedings, which last occurred in 2007, (1) to redact the February 9, 2006 notice , (2) to demand the immediate removal of the opinion from any publicly accessible website that currently publishes it, and (3) to notify any printed publisher of the Federal Supplement that the redacted opinion should be used in future reprints . She argues that the published opinion caused emotional harm and was wrongfully maintained on the public record, given the protections provided by 18 USC § 3509….
“Courts have long recognized…” a strong presumption in favor of opening “court records.” Overcoming this burden is “onerous: ‘Only the most compelling reasons can justify the withholding of court records.’
Relevant here, 18 USC § 3509(d)(2) states that “[a]All documents to be filed in court that disclose the name or any other information about a child must be filed under seal. other information about the child during the proceedings, if the court determines that there is a significant possibility that such disclosure will be harmful to the child. There is no doubt that the notice of February 9, 2006 should have obscured the identity of the minor victims to protect their privacy. Based on the representations in Jane Doe’s motion, which the Court has no reason to doubt, the unredacted notice has caused and will continue to cause psychological and emotional trauma to one of the named underage victims.
Given the nature of criminal offences, the merits of redacting the February 9, 2006 notice outweigh the public interest, if any, in continuing to keep public in the court record the identity of minor victims…. “The court finds that the strong public interest in encouraging individuals to report suspected cases of child abuse or neglect far outweighs any interest of any party to that action in identifying the name of the person who reported the abuse or neglect.” …. “Reports of child abuse should be protected from public dissemination to the extent possible so that members of the public feel safe making such reports.” ….
Although the Court recognizes that the identities of the underage victims have already been publicly revealed, it sees no reason to keep their identities public in the court file when it has the power to simply remove the names from the prior notice, as should have happened in the first instance. In addition to the removal of names, Jane Doe requests the removal of “other identifiers”, “intimate details of criminal offences” and certain other “private” or “personal” details contained in the February 9, 2006 notice. , it did not identify this information precisely, so the Court cannot identify it or meaningfully consider this claim. In any event, the opinion contains little or no sensitive or identifying information which the Court believes merits redacting, particularly given the long-standing public availability of the decision and the designation of minor victims….
[T]The Court GRANTS Jane Doe’s motion to remove the names of underage victims from the February 9, 2006 notice. redacted version of its opinion of February 9, 2006. The redacted opinion hereby supersedes the previous opinion and serves as the public record in the matter….
To the extent that Jane Doe seeks an order requiring the removal of the February 9, 2006 notice from publicly available websites and the print version of the Federal Supplement, the First Amendment bars the Court from granting such relief. [Note that, to my knowledge, the February 9 opinion didn’t actually appear in the printed F. Supp. volumes, and the motion was just discussing any possible future publications; but the opinion is present on at least one Google-accessible website, and on some pay services. -EV]
The use of the injunctive powers of the federal courts to suppress any posting is strongly discouraged and requires extremely compelling justification. The Supreme Court has ruled unconstitutional laws prohibiting the publication of the names of rape victims when those names are then made public. In this case, a court order prohibiting the publication of an already public opinion would violate the First Amendment.
With print copies in circulation and the ubiquitous availability of the Federal Supplement online, the Court does not have the ability to order a full retrieval of the notice. Without this ability and recognizing that copies will continue to circulate, the Court cannot conclude that there is adequate justification to prohibit further publication of the February 9, 2006 notice, either online or in any reprint of the Federal Supplement .
However, the Court notes that many digital services track the publication of federal court orders, so the redacted opinion could replace the earlier version in popular databases and search engines. The Court certainly hopes for such an outcome. Accordingly, the Court DISMISSES Jane Doe’s motion with respect to the request to withdraw the February 9, 2006 opinion from publication and to prohibit its future publication….