CHATTANOOGA, Tenn., - A federal judge used his questioning of attorneys to suggest their answers during a hearing Friday to decide whether the public should have the right to sealed documents and recordings in the ongoing Pilot Flying J trial.
U.S. District Judge Curtis Collier not only framed questions to defense attorneys to elicit specific responses that would support a ruling against the media organizations seeking to have the records unsealed, but he also made an argument for one defendant whose own attorney had opted to stay silent on the matter but was called to the lectern anyway.
USA TODAY NETWORK - Tennessee was joined by the Cleveland Plain Dealer, WBIR-TV in Knoxville, WKYC-TV in Cleveland, and the Chattanooga Times Free Press in seeking a copy of segments of recordings played for jurors this week, companion transcripts and related motions – all ordered sealed by Collier – as well as transcripts of the entirety of those recordings, and any rulings Collier has made in reference to those recordings.
Secret recordings, secret records
The news organizations’ bid for public access to those records comes in the ongoing wire and mail fraud conspiracy trial of former Pilot Flying J President Mark Hazelwood and three subordinates – former vice president Scott “Scooter” Wombold and former regional account representatives Heather Jones and Karen Mann.
They are accused in a five-year fraud scheme in which 14 former Pilot Flying J executives and staffers and the truck stop giant’s own board of directors already has admitted guilt to ripping off small trucking companies by promising them big discounts on diesel fuel purchases in return for loyalty to Pilot Flying J but shorting those firms on those promised discounts.
Former Pilot Flying J sales executive Vincent Greco turned mole for the FBI and IRS Criminal Investigation Division in 2011 and, as part of that role, secretly recorded various conversations and meetings of executives including an October 2012 gathering at which Hazelwood and other sales executives made racially offensive comments, sang along to a racist country song, mocked the Cleveland Browns and its fans and referred to black players using a racial epithet.
Pilot Flying J Chief Executive Officer Jimmy Haslam owns the Browns. He has denied any knowledge of the fraud scheme and is not charged. He was not present at the October 2012 meeting at the Rockwood lake house of former vice president John “Stick” Freeman during which the racist comments were made.
Federal prosecutors Trey Hamilton and David Lewen on Wednesday played for jurors snippets from those racist recordings to counter Hazelwood’s claim he is too savvy a businessman to engage in behavior, such as fraud, that would damage Pilot Flying J.
But, as Hamilton noted at Friday’s hearing, there were problems with the volume of the recordings played in open court, making it difficult for the public to hear not only what was being said but who was speaking.
Jurors, though, were given transcripts to follow. Those transcripts identified the speakers. USA TODAY NETWORK - Tennessee immediately sought copies of those transcripts after the audio was played in court and later expanded its request to all records related to those recordings as well as transcripts of the entirety of the recordings, which were attached to a motion filed by Hamilton that Collier ordered sealed.
'Fundamental constitutional rights'
Attorney Richard Hollow, who represented the media organizations, told Collier at Friday’s hearing that court business should not be conducted in secret, and courts, including the U.S. Supreme Court, have repeatedly upheld the public’s right to access of not only trials but the records of courts.
“We’re talking, in our opinion, about much more than this trial,” Hollow said. “We’re talking about fundamental constitutional rights … The law says if it’s a matter of the court’s record, it’s public.”
When Hollow noted that Pilot Flying J “holds out its products to the public,” heightening the call for public scrutiny of records in the fraud case, Collier said he “can assure you Pilot Flying J and the owners of Pilot Flying J … have not taken any position at all on the release of information.”
He later used his questioning of Hamilton – who did not state a formal position on the media’s request – to press the point.
“Are you aware of the owners of Pilot Flying J …(trying) to control the sealing or unsealing of any records in this case?”
Questions with answers
Collier told Hazelwood’s attorney, Rusty Hardin, to specifically list reasons why the trial was moved to Chattanooga – pretrial publicity – and how immediate release of the records sought by the news organizations could cause a delay in the trial.
“I’ve yet to hear there’s a constitutional right to immediate copies of evidence that has been introduced at trial,” he said.
Copies of other recordings played in court have already been released to at least one media organization during the trial. Those did not contain the racist commentary, though.
Wombold’s defense team chose not to make any arguments at Friday’s hearing, but Collier summoned one of his attorneys, Annie Tauer Christoff, to the lectern anyway and then stated Wombold “could face a quicker prejudice” if Collier approves the media’s request. She agreed, but said little else.
Collier pressed Hamilton to compare the transcripts used by jurors to “a white board or a flip board” used in court to illustrate various points to jurors.
“Does the public have a right to see what’s on the board?” he asked Hamilton.
Hamilton then echoed what Collier said – that the public had the right to be in court and hear the recordings but not necessarily the right to have a “copy” of either the transcripts or the “white board or flip board” cited by Collier.
Collier is giving the defense attorneys a week to file additional legal arguments before he issues a ruling.
The daily news organizations making up the USA TODAY NETWORK - Tennessee are the Knoxville News Sentinel, the Tennessean in Nashville, The Commercial Appeal in Memphis, the Jackson Sun, The Leaf-Chronicle in Clarksville and The Daily News Journal in Murfreesboro.