Judge keeps ex-Mayor Tyler testimonials secret
It's unclear why a federal judge sealed 65 character letters in the criminal case against Dennis Tyler
MUNCIE — When former Mayor Dennis Tyler was sentenced to prison last year, the judge pointed out that the court had received dozens of testimonial letters supporting the confessed thief.
After learning of that newsworthy tidbit in such a high-profile case, I decided to drive to the federal courthouse in Indianapolis to see who had written the letters and what mitigating factors had been brought up.
But the judiciary stopped me in my tracks. It turns out the letters were sealed by the judge, for reasons that remain unclear, after he had read them. For clarification and to possibly get the judge to change his mind, a non-party like a journalist would have to file a motion to intervene in the case.
During the Nov. 10 sentencing hearing, U.S. District Court Judge James R. Sweeney II, in Indianapolis, said that most of Tyler’s history was “good and laudatory,” The Star Press reported at the time, adding, “He referred to 65 letters to the court from citizens on the ex-mayor's behalf.”
The story quoted Tyler’s lawyer as noting that one of the testimonials came from Jud Fisher, president of the Ball Brothers Foundation.
For his plea of guilty to theft of government funds — accepting $5,000 in cash in exchange for steering work to a contractor who charged more than an honest competitor — the dishonored mayor was sentenced to prison for 12 months and one day.
In taking the bribe, “Mr. Tyler chose to serve himself and the interests of insiders who were willing to buy their way into a rigged system,” federal prosecutors wrote. “He now joins a dishonorable list of corrupt politicians who have contributed to the growing erosion of public trust and confidence in government.”
Tyler, a Democrat, is one of nine defendants charged in connection with an investigation by the FBI and the U.S. Attorney’s Office of “systemic corruption” that had extended throughout municipal public works projects in Muncie.
The fact that Judge Sweeney cited the character letters indicates they impacted his sentencing decision, an attorney told me.
In criminal cases, such letters can provide mitigating evidence to influence the judge’s perception of the defendant by painting a fuller picture than the one offered by the prosecution.
“ … the character letter is designed to explain how the person’s criminal behavior is not reflective of their true nature, which is otherwise demonstrably virtuous,” according to one criminal defense organization. “Said a little differently, a character letter should explain why, despite the charges the person is facing, they are nevertheless a good social citizen.” Which is to say that they are not “a con artist at heart.”
One federal judge, Patrick Joseph Schiltz, was quoted as saying that he appreciates learning about a good deed that is not otherwise known about the defendant. He cited, for example, “a defendant who, during a heavy snowstorm, shovels the sidewalk of an elderly disabled neighbor.”
Tyler pleaded guilty to a charge that carries a maximum sentence of 10 years in prison.
Based on the former mayor’s acceptance of responsibility and his criminal history category I ranking (category I is the least serious of six categories and includes many first-time offenders), the sentencing guideline range of imprisonment in his case was 12 to 18 months, according to prosecutors.
The prosecution agreed to recommend a sentence at the low end of the guideline range, calling that “reasonable and appropriate.”
Judge Sweeney imposed a sentence of 12 months and one day, as well as participation in educational programming and vocational training; supervised release for three years; a fee of $100, and restitution of $15,250.
The judge also recommended to the Bureau of Prisons that Tyler be placed at the Terre Haute Federal Correctional Complex at the lowest-eligible security level. Terre Haute is a medium-security institution with an adjacent minimum-security satellite camp. Instead, the 79-year-old defendant was placed at the minimum-security Morgantown Federal Correctional Institution, W. Va., where all visiting has been suspended until further notice due to COVID-19.
The U.S. District Court for the Southern District of Indiana, which has multiple judges and divisions (Indianapolis, Terre Haute, Evansville and New Albany), was not given to talking when I made a request to inspect the character letters.
“The letters you reference are classified as ‘case participant only’ by the court and are not accessible for viewing by the general public,” Doria Lynch, public information officer for the Southern District, said via email.
She noted that she was the PIO for the Southern District court, not Judge Sweeney’s court spokesperson. “Our judges do not comment on cases, either directly or through any court employee,” she added.
“Finally, please note that, as in all cases, the docket will reflect any publicly available activity in the case.”
She declined to comment on why the letters are sealed.
I asked the U.S. Attorney’s Office for access to the letters in case they might be available to the former mayor’s crime victims, including me, a Muncie taxpayer.
“Those kinds of materials are sealed by court order pursuant to the rules of court in this district,” spokesman Steve Whitaker responded. “Therefore, they cannot be made available and their contents cannot be divulged.”
He didn’t cite the relevant rules.
There has been one entry on the docket sheet since my requests were made, but it’s unrelated to the letters. The entry on Jan. 21 states that an official transcript of the sentencing hearing held on Nov. 10 has been filed (38 pages).
After a period of potential redactions (none was requested by the prosecutors), the transcript is scheduled for release on April 21.
The fact that Judge Sweeney referenced the character letters shows that they were part of the discussion during sentencing, noted Stephen Key, executive director and general counsel at the Hoosier State Press Association.
“The judge made enough note of the 65 letters that it sounds like it may have impacted his decision on what sentence to give,” Key told me. “Just the fact that the judge took note of the number of letters indicates it had an influence on the level of punishment handed down.”
In cases like these, it could serve the public interest to know who wrote the letters and what they said to excuse the criminal actions of the person found guilty, Key said.
According to the Federal Judicial Center’s Pocket Guide to Sealing Court Records and Proceedings:
“Essential to the rule of law is the public performance of the judicial function. The public resolution of court cases and controversies affords accountability, fosters public confidence, and provides notice of the legal consequences of behaviors and choices. On occasion, however, there are good reasons for courts to keep parts of some proceedings confidential.”
Examples include classified information, ongoing investigations, trade secrets, identities of minors, wiretaps, unexecuted search warrants, and national security secrets.
Courts generally require the following when a record is sealed or a proceeding is closed, according to the guide:
Absent authorization by statute or rule, permission to seal must be given by a judicial officer. Clerks’ offices should not agree to seal a record unless directed to by a statute, rule, or court order.
Motions to seal should be publicly docketed. Public notice of motions to seal gives the public, the news media, and interested parties an opportunity to be heard on the matter.
Members of the news media and the public must be afforded an opportunity to be heard on motions to seal. Courts routinely permit non-parties to intervene for the purposes of challenging motions to seal.
There should be a public record of permissions to seal. There should be a public record of what is sealed and why, consistent with the reason for sealing.
Sealing should be no more extensive than necessary. Although it is often easier to seal more than is necessary, courts should be careful to seal only the portions of the record that require sealing.
An entire case file should not be sealed to protect the secrecy of some documents.
The record of what is sealed and why should be complete for appellate review. The record of the case should include specific reasons for sealing and specific reasons for not employing more limited forms of secrecy, such as redacting a document instead of sealing the whole document. If part of the record of what is sealed and why must itself be sealed to protect necessary secrecy, it should still be included in the case record for possible appellate review.
Records should be unsealed when the need for sealing expires. Records are often sealed for a temporary purpose, and courts should follow procedures that ensure records become unsealed when they can be.
(No information about the character letters is referenced on the docket sheet in the Tyler case).
“In the end, whether a judicial record should be sealed depends on the judgment and discretion of the presiding judge,” the guide says. “Appellate review of sealing decisions is by interlocutory appeal in some circuits and by mandamus in others.”
The Federal Judicial Center is the education and research agency for the federal courts. Timothy Reagan, the author of the guide, written in 2010, told me, “I don’t have anything more up to date to share with you.”
Case law cited by the guide includes United States v. Corbitt, 879 F.2d 224, 239 (7th Cir. 1989), a ruling by the 7th Circuit U.S. Court of Appeals, Chicago, which has jurisdiction over the federal courts in Indiana, Illinois and Wisconsin.
Michael Corbitt, the police chief in the Village of Willow Springs, in Cook County, Ill., had pleaded guilty to accepting bribes in exchange for turning a blind eye to various criminal enterprises, and to extorting payments from businesses.
During sentencing, the federal trial court judge imposed a lenient sentence of four years, citing “an unprecedented, and apparently spontaneous, torrent of letters written on Corbitt's behalf.” The sentence was more lenient than the one recommended in the pre-sentence report prepared by the probation department.
“… one of the things that struck me about [the letters] is not just that ordinary folk have come forward in your behalf, but … elected … and appointed public officials in the community in which you have resided, have come forth for you,” the judge said.
Outraged residents and public officials in the village demanded to know who authored the letters, many apparently on official letterhead. The town board sent the judge a letter seeking access to the documents.
And the Southtown Economist newspaper, which covered news on the south side of the Chicago area, intervened in the case, successfully obtaining the letters.
The newspaper argued that Corbitt's entire criminal proceeding was “affected with a public interest” because his conviction involved misconduct in office. Another argument was that the public had a right to learn what factors, including character letters from village officials, had convinced the court to impose a softer sentence.
Corbitt did not file a brief opposing the newspaper’s motion, nor did he participate in the appeal. The prosecution did not object to the trial court’s decision to unseal the letters written on Corbitt’s behalf and also did not challenge disclosure of the letters on appeal.
Therefore, the 7th Circuit Court’s ruling only addressed the trial judge’s decision to reveal the pre-sentence report, which is generally confidential. The prosecution successfully objected to its release.
Such reports can include a defendant’s juvenile record, which is normally sealed under state law; allegations concerning the defendant's involvement in other, uncharged crimes; the defendant's physical and mental health, including his or her I.Q., as well as results of psychiatric tests, history of substance abuse problems and any unusual fears, hostilities, obsessions, compulsions, depressions, or sexual deviations; any history of child abuse or neglect; details of the defendant's relationship with his or her spouse; and information about the defendant's family, including any history of emotional disorders, diseases, and criminal behavior.
Noting that a defendant “might be reluctant to disclose details of his or her private life due to the possibility that the contents of the pre-sentence report might one day end up in a newspaper,” the appellate court wrote that “we do not believe that a first amendment right of access attaches to pre-sentence reports … Nor should the sentencing court be denied this highly relevant information, which may provide greater insight into the defendant's character than all other sources of pre-sentence information combined.”
“Besides attending the sentencing hearing, the press and public may also be able to glean information regarding the defendant's conviction and sentencing from other, non-confidential documents submitted in connection with sentencing (such as the testimonial letters disclosed here), and from interviews with the defendant and the attorneys for prosecution and defense,” the ruling said.
(The first of the nine defendants convicted in the federal investigation of municipal corruption in Muncie was Craig Nichols, the former city building commissioner and the son of Phil Nichols, an ex-city firefighter and former chairman of the Delaware County Democratic Party.
(Craig Nichols filed a successful motion to seal a document submitted as an exhibit to his pre-sentence memorandum: a psychological assessment from Frank H. Krause, Ed.D., containing personal health information of the defendant. Nichols got 24 months in he Federal Prison Camp, Pensacola, because he had family in the area and the warmer climate was better for his psoriasis).
The Corbitt case suggests to Key that the press would have a very good chance of securing the release of former Mayor Tyler’s testimonial letters, were the press to intervene in the case.
Key estimates it would costs thousands of dollars in attorney fees to intervene at the trial court level, and tens of thousands if the matter proceeded to the 7th Circuit judges.
Someone could intervene “pro se” or on one’s own behalf in the case, without an attorney, and the U.S. District Court for the Southern District of Indiana provides resources for those people.
However, the court cautions against that, saying on its website: “The rules, procedures and law that affect your case can be hard to understand. With that in mind, you should seriously consider trying to obtain professional legal assistance from an attorney instead of representing yourself as a pro se party.”
With legal fees acting as a deterrent, I’m inclined to hereby decree that the dozens of “good and laudatory” letters the court received on behalf of Dennis Tyler shall remain sealed.