As Donald Trump's hush money case heads to trial in Manhattan amid intense public scrutiny, the record of what is said by the defense, prosecutors and the court slowly winds its way through a Byzantine maze that often involves modern communications — video chats, emails and PDFs — but ultimately leaves a piecemeal record consisting only of the papers the judge sends to the central clerk's office.
Attorneys who represent clients in the New York City courthouse that will host Trump's trial say this allows judges to conduct swift business in a court system clogged with cases. But outside civil rights experts say it may violate constitutional guarantees of the right of public access to court records while also raising the specter of misinformation and distrust.
"When it takes days or weeks to see records — or even worse, you don't get to see the court record at all — that only fuels speculation, rather than helping people see the facts to justify their opinions," Charles D. Tobin, head of Ballard Spahr's media and entertainment law group, said.
In a case like Trump's, where the presumptive Republican nominee for president has denounced the charges as a politically motivated witch hunt, a spotty and inaccessible case file is especially problematic.
"The whole purpose of having an open court system and public eyes on court documents is so we can make up our own minds on whether we buy into a conspiracy or whether the prosecution has sufficient evidence to convict somebody," Tobin said.
Trump has pled not guilty to 34 felony counts of falsifying business records in an alleged attempt to hide damaging information from voters in 2016 about supposed extramarital affairs. Jury selection has been delayed until at least mid-April after federal prosecutors dropped over 100,000 pages of evidence on Trump and the district attorney this month.
When asked why there is no digital court docket system, the good-natured clerks in the 10th floor office of the New York State Supreme Court, Criminal Term in Manhattan give a weary smirk and a shrug. Even the former president's indictment couldn't escape the standard-issue brown accordion folders that hold official court records.
The court is among the oldest in the country, with records of indictments, jury verdicts and sentencing minutes dating back to its founding in 1691 — and the paper continues to stack up.
The records of Manhattan's trial court, the Supreme Court, date back to colonial New York City in 1691, about 30 years after the Dutch left New Amsterdam to the English. (New York State Archives, series JN531)
Over 36,000 criminal cases were arraigned in the county's criminal courts in 2023, according to the Manhattan district attorney's office. Each got a file folder stuffed with the charges, rap sheet, a paper logging court appearances and any other motion papers or court orders.
What you won't find is an official list, index or table of contents — known as a "docket sheet" — for what has been filed in the cases. Clerks say such docket sheets do not exist.
"That's the way everyone has been doing it for the last 100 years," said Barry Kamins, a former state judge turned defense attorney who represented Harvey Weinstein at trial in the same court. "You go through the court file. Here's the indictment. The motion. Decision. There's this, here's that. It's not organized."
The jumbled state of the files is exacerbated by the fact that some court filings never make their way into the folder at all — and without a docket, it's hard to tell what's missing.
For example, although Trump's attorneys, prosecutors and Justice Juan M. Merchan send each other filings by email or courier, the "public file" in the central clerk's office is rarely updated with new submissions. The judge's law clerk holds onto filings until the judge allows his staff to make photocopies that are then placed in the public file.
Despite the immediate availability of electronic filings in virtually every federal court case and most of New York's state civil courts — which began digital e-filing over 20 years ago — such innovations have not been embraced at the ziggurat-topped monolith that houses the Supreme Court, Criminal Term in downtown New York City.
There is an existing online portal to submit documents to the court, but it is so backlogged that attorneys say judges have ended up asking them for paper copies anyway. Clerks said they discourage people from using EDDS, or Electronic Document Delivery System.
The chief clerk touted a slow, discretionary disclosure process as standard procedure.
Allowing the public to see papers before the judge reviews them would be "unprofessional," Christopher DiSanto said, before offering a Kafkaesque view of public access to court records.
"If a judge has something and hasn't given it back to us, it doesn't exist yet," DiSanto told Law360 shortly after Trump's indictment last year. "It doesn't exist until it's made part of the court file — unless someone gives you a copy of it — but we would never give you a copy until it's made part of the file."
DiSanto said he cannot even acknowledge the existence of any sealed documents.
"We are treating this case the same way we treat every case," he said.
In Trump's case, and over his attorneys' objections, the judge has said that it is his practice to allow parties 48 hours to redact filings before the judge releases them to his courtroom clerk to be put into the case file. Justice Merchan's clerk then walks a paper copy of those records to the central clerk's office, where Law360 has observed delays of weeks or months before submissions appear.
The cautious record keepers there slide one or two filings across the counter at a time. Submissions have gone missing in big cases, they say.
But behind the scenes of this dutiful paper shuffling, attorneys in felony cases often engage in frenzied, unofficial shadow litigation. Arguments are emailed and rulings are sent back. Such exchanges are often missing from the official record.
At Trump's Feb. 15 criminal proceeding, prosecutor Joshua Steinglass waved a printed email from Justice Merchan. He argued the judge had resolved a similar dispute over defense discovery obligations in the separate Trump Organization tax fraud case. The judge later confirmed he had made "a prior ruling, contained in an email."
An unsealed NA indictment "jacket" in the Manhattan criminal court clerk's office at 100 Centre St. (Frank G. Runyeon | Law360)
But when a court clerk sifted through the entire official case file later that month — weeding out papers from two completely unrelated criminal cases jammed inside — she could not find any record of the emailed arguments or Justice Merchan's Oct. 4, 2022, emailed ruling.
Sources familiar with the Trump Organization case said there were numerous proceedings under seal with no public notice, as well as memos, letters and other filings that were never made public.
A Pennsylvania-based attorney who represented one of Trump's companies in the Trump Organization case, Michael T. van der Veen of van der Veen Hartshorn Levin & Lindheim, said that "in New York, you can seal a lot of information at the discretion of the judge, which doesn't really happen down here in Philadelphia as much."
In a filing dated March 10 but released March 19, Trump's attorneys sought to "unseal and docket all pleadings, orders, and substantive written communications that have involved the court and the parties" in the hush money case and "require simultaneous public access of all future pleadings, orders, and written communications," with limited exceptions.
"Throughout this case, the court has communicated with the parties via emails and letters that contain substantive rulings but do not appear to be docketed or otherwise available to the public, or to the parties as necessary for an appellate record," Todd Blanche argued.
In a response dated March 12, but released Thursday, prosecutors did not oppose releasing "substantive orders" that the judge "has not had the opportunity to place in the case file," but argued "there is no legal requirement that other emails between the court and the parties must be publicly docketed."
Attorneys for Trump and District Attorney Alvin Bragg declined to comment for this story.
The existing system of secrecy can work to the advantage of all sides in the room, courthouse attorneys familiar with these practices said, by allowing defense attorneys to keep embarrassing details under wraps, granting prosecutors more control over what parts of their investigation are disclosed and letting judges avoid a "circus-like" atmosphere that could taint the jury pool or otherwise interfere with cases.
But First Amendment attorneys told Law360 that these practices paint a troubling picture of a system that is abdicating its constitutional obligations of access to the courts.
"New York is way, way, way behind the times in terms of public access to judicial filings," Chris Dunn, legal director for the New York Civil Liberties Union, said. "Starting with the fact that it's still got this antiquated filing system."
Dunn said that the NYCLU had also found that recent filings failed to appear in a landmark civil case over the right to shelter in New York state, Callahan v. Carey. And that case has a digital docket and e-filing with PDF documents.
"That's a significant problem in terms of transparency," Dunn said of the practice of failing to place submissions and decisions in the public case file. "But it's also a violation of the First Amendment, because the public has a constitutional right of access to court filings under both state and federal law."
The U.S. Supreme Court held in a series of decisions, starting with Richmond Newspapers Inc. v. Virginia in 1980, that public access to criminal court proceedings is guaranteed by centuries of English common law tradition and an "implicit" First Amendment right to see and report the actions of the government in a public space.
While a limited set of records are typically secret, like grand jury proceedings, experts say there is a First Amendment right of access to most judicial records of public interest.
In 2004, the Second Circuit held that "the public and press enjoy a qualified First Amendment right of access to docket sheets," which "provide a kind of index to judicial proceedings and documents" that effectively enables the people to know what is happening in court and freely communicate about it.
"The ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible," the court ruled.
The court has also found the public has a right to "contemporaneous" access to filings and that unjustified delays also violate civil rights.
Where the First Amendment right of access attaches to court records, judges cannot seal or redact records without making an on-the-record ruling laying out their reasoning, the Supreme Court found in a 1984 ruling in Press-Enterprise Co. v. Superior Court. The Second Circuit clarified that the public must have a chance to be heard on the matter beforehand.
At least as far back as 1965, in Werfel v. Fitzgerald, state appellate courts affirmed the public's right to inspect criminal case files in New York City.
"There's a presumption of openness under the First Amendment and the burden is on the litigant or the government to justify restrictions of that access," Robert Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression and a former partner at Davis Wright Tremaine LLP, said.
Defense attorneys for less famous criminal defendants than Trump say the existing system can pose a problem for their clients as well. Without decisions carefully preserved in an accessible, searchable, official record, defendants lack a valuable resource to draw on when trying to defend their clients.
"They don't upload any paperwork. They're not like the federal system," Christopher W. Boyle, director of data research and policy for New York County Defender Services, said of the state's system. "It's completely inefficient."
Many public defenders are still stuck relying on the court system's paper system, he said, but Boyle's group opted to invest in building their own digital case management system to track their cases and key issues like bail.
Without ready access to judges' prior rulings, attorneys are put at a disadvantage and laws may be inconsistently applied. A November study by good government advocates at Reinvent Albany and Scrutinize found that 94% to 99.5% of criminal court decisions in New York State are unpublished, calling it "a transparency problem of staggering proportions."
Court administrators have explored digitizing criminal case files for decades now, but despite legislative reforms enabling them to do so, they have failed to launch even a voluntary digital criminal case filings system.
A Feb. 2023 report by then-acting Chief Judge Anthony Cannataro trumpeted a criminal e-filing pilot program and a series of planning meetings underway since 2021.
"The roll-out of e-filing in the superior courts for criminal cases will be a major priority" in 2023, the interim chief judge wrote two months before Chief Judge Rowan Wilson's appointment.
But the rollout has yet to materialize, clerks and attorneys told Law360.
Since late February, Law360 requested information from the New York Unified Court System's Office of Court Administration about the status of these efforts. OCA did not provide any answers to a detailed list of questions after repeated requests.
The appellate court that may hear any appeal of Trump's case does have a fully-digital docket and case file system, put in place during the pandemic. In fact, there is an office in the Manhattan criminal court building devoted to fetching the trial court's paper files and scanning them for the higher court's review.
"That's what we do," a clerk in the office told Law360, expressing a faint hope that the paper case file system for Manhattan criminal cases will be modernized.
"Let us pray," Constance Washington said. "I've been hearing it for 24 years…in one ear and out the other."
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
