Judge vacates order
At a hearing on July 17, 2018, judge John Walter vacated his earlier order restraining The Los Angeles Times and denied Balian's motion for a preliminary injunction against the paper.
The Times is now free to publish its full, uncensored report about Balian's plea deal.
But even as he vacated the restraining order, judge Walter criticized the Times and tried to justify his decision to issue the order.
Ken White, a legal commentator and former federal prosecutor who attended the hearing, reported that Walter chastised the paper for "exploiting an honest mistake by a docketing clerk" to publish an article about the sealed plea deal.
According to White, Walter said that he granted the restraining order because he feared that publicizing the plea deal would lead to "great and certain" harm to Balian.
"I was concerned about somebody's life, and if I erred, I wanted to err on the side of protecting the defendant," the judge said, according to White.
White was not impressed with Walter's arguments.
"It's good that Judge Walter vacated his order," White wrote in a post on the legal blog Popehat. "But it's unacceptable that he issued it in the first place, and unbecoming and regrettable that he blasted the press for printing important information about a federal case. A dirty cop cooperating against gangs is news. They were right to publish. He was wrong to issue the order, and wrong to try to justify it."
On July 14, 2018, a federal judge in California ordered the Los Angeles Times to remove certain information from an article that the paper had published about a corrupt police officer accepting a plea deal. The newspaper had published details of the plea deal after a document spelling out the deal was inadvertently made publicly available, rather than being filed under seal.
On the morning of July 14, the Times reported that John Balian, a narcotics detective accused of working with the Mexican Mafia, had accepted a plea deal and agreed to cooperate with federal prosecutors. The article was based on a copy of the sealed plea agreement — which had been inadvertently made available to the public through the online court records database PACER — and included specific details included in the plea agreement:
According to the plea agreement, Balian accepted $2,000 to help locate someone believed to have broken into his associate’s office and stolen $100,000 worth of property.
In March 2017, the agreement said, Balian gave information to the U.S. Marshals Services stationed at the Glendale Police Department, causing law enforcement resources to be used in an attempt to find the alleged thief.
In June 2015, Balian overheard Glendale police officers discussing a plan to search and arrest about 22 people in a federal racketeering case targeting the Frogtown gang, which is loyal to the Mexican Mafia, the agreement said.
Balian then tipped off his associates within the Mexican Mafia, saying authorities planned to arrest Jorge Grey, a Frogtown “shotcaller” who was a top target.
Archived version of "Glendale detective pleads guilty to obstruction, lying to feds about ties to organized crime" (Los Angeles Times)
Shortly after the article was published, Balian's attorney filed an emergency motion, asking the U.S. District Court for the Central District of California to issue a temporary restraining order to prohibit the Times from publishing details from the plea agreement. District court judge John Walter, the federal judge overseeing Balian's criminal case, quickly granted the temporary restraining order. Judge Walter's order also directed the Times to remove any articles about the plea agreement that it had already published.
IT IS HEREBY ORDERED that the Los Angeles Times and each of its parent companies, subsidiaries, or affiliates (collectively “the Los Angeles Times”), directly or indirectly, whether alone or in concert with others, including any officer, agent, employee, or representative of the Los Angeles Times, be and hereby are enjoined from:
Disclosing the under seal plea agreement in this case, in whole or in part, or publishing any article, piece, post, or other document whether in print or electronic format that quotes, describes, summarizes, references, relies on, or is derived in any way from the under seal plea agreement in this case and that it return forthwith any and all copies of such plea agreement in its possession to the United States Attorney's Office for the Central District of California.
IT IS FURTHER ORDERED that defendant shall serve the Los Angeles Times with a copy of this order but not the Ex Parte Application forthwith. To the extent any article is published prior to the issuance of this order, it shall be deleted and removed forthwith.
Temporary Restraining Order issued on July 14, 2018
At 5:15 p.m. on July 14, the Times edited its earlier article to remove certain details about the plea deal, and added a note to the bottom of the story: "This story has been updated to remove references from the filed plea agreement, which was ordered sealed by a judge but publicly available Friday on the federal court’s online document database. The changes were made to comply with an order issued Saturday by a U.S. federal judge. The Times plans to challenge the order."
Times publisher Norm Pearlstine defended the Times' decision to report on the plea deal.
“We believe that once material is in the public record, it is proper and appropriate to publish it if it is newsworthy,” Times publisher Norm Pearlstine said in an interview with the paper.
The temporary restraining order will remain in effect until Walter rules on whether or not to grant Balian a preliminary injunction — which is similar to a temporary restraining order, but more permanent — against the Times.
On July 16, the Times filed an emergency petition for a writ of mandamus with the U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over federal district courts in California. The petition, which was filed under seal, essentially asks the appeals court to step in and order the district court to immediately rescind the temporary restraining order.
A coalition of 60 news and press freedom organizations, led by the Reporters Committee for Freedom of Press, submitted a letter to the Ninth Circuit in support of the Times' petition.
"It appears that the district court may have entered the temporary restraining order in an attempt to correct the mistaken public filing of the plea agreement, which was meant to be kept under seal," the letter states. "The district court's desire to correct this administrative error, however, cannot justify the imposition of a prior restraint, which has now created a constitutional harm. Although courts have the power to enter sealing orders when common law and constitutional standards are met ... once information is made public, nearly 90 years of constitutional law stand in the way of using prior restraints to prevent a newspaper from communicating the information to its readers."