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Ex parte is a Latin legal term meaning either by or from one party. An Ex parte decision or order is made by a judge without requiring all parties to the case being represented. In both federal and state courts, the use and availability of Ex parte proceedings are sharply limited by the Fifth and Fourteenth Amendments to the US Constitution, which provide protections against depriving a party of life, liberty or property without due process of law. In practice, this has led to any relief obtained through such proceedings to be temporary, and sooner or later the excluded party is given an opportunity to contest the appropriateness of the order before it can be made permanent.
But not always before the damage is done.
On January 5, 2011 news reports indicated that the federal government had expanded the scope of the criminal probe that currently has prominent Auburn University Booster Milton McGregor and 11 others under federal indictment and facing trial on April 04, 2010. Two of the original targets of the probe—Jennifer Pouncey and Jarrod Massey—have agreed to plead guilty in exchange for testimony.
Most troubling for those outside the scope of that case was the revelation by defense attorneys that the government was holding back considerable amounts of information provided by Massey, citing an ongoing criminal investigation of unknown individuals and unknown criminal activity.
That same day, US Magistrate Wallace Capel granted an Ex parte motion by the government, discontinued the Ex parte status of prior motions, but ordered the records SEALED:
This order confirms the news stories of January 5. The government is certainly expanding its probe, and feels the information contained in the record of Massey’s negotiations with the government is sensitive enough to remain under lock and key.
Recall from this post from last November that one of Milton McGregor’s first legal maneuvers was an attempt to seal all documents related to his indictment. Capel denied that motion, citing the public’s First Amendment right of access to criminal proceedings.
Wednesday’s ruling is vastly different from the earlier ruling on McGregor’s motion. In this instance, the court has apparently weighed the harm done to public access against the harm done to an ongoing criminal investigation, and found that unsealing the documents pertaining to Massey’s statements would harm the latter much more than the former.
Which means that we won’t know the scope of the expansion until the additional targets of the investigation are led away in handcuffs. This kind of uncertainty, combined with the knowledge that at least two people are already singing like happy canaries, creates enormous pressure on people who think they may be under the gun.
At least one prominent figure is believed to be sweating quite heavily, and sources indicate to me that the individual has even approached investigators with an offer to cooperate, only to be told that the matter is not “ripe enough” for that, just yet.
You will stay tuned, won’t you?
UPDATE: Federal prosecutors want Ronnie Gilley’s bond revoked, and claim that he attempted to bribe Jarrod Massey to withhold testimony. h/t @rtrstokes
UPDATE: It’s 2011. D’oh!