‘We never stop learning’

In Washoe County, Darren Mack, 43, pawnshop owner and cousin of former Las Vegas City Councilman Michael Mack, stands charged with murder in connection with the June 2006 stabbing death of his estranged wife, and with attempted murder in the sniper-style shooting of Family Court Judge Chuck Weller, who'd been overseeing the Macks' divorce proceedings.

Mack has pleaded not guilty and not guilty by reason of insanity; his criminal trial is set to begin Oct. 1.

But Darren Mack is also the named defendant in a separate, civil action arising from his wife's death. Charla Mack's estate and her mother, Soorya Townley, filed a wrongful death action against Darren Mack last Nov. 13, seeking damages.

It was the proceedings in that civil case which Washoe Senior Judge Noel Manoukian decided to seal, last month. The judge -- an un-elected retiree appointed to the case after almost every other Washoe County judge was disqualified due to potential conflicts of interest -- said the litigation would proceed behind closed doors to protect defendant Darren Mack's Fifth Amendment right against self-incrimination.

That was odd for several reasons. Not only had Mack never asked for secrecy -- nor had the family of the dead woman -- but in fact Mack's counsel had specifically requested that the case be open.

The Reno Gazette-Journal proceeded to file motions with the court last month, attorney Scott Glogovac arguing on the newspaper's behalf, "The public has the right to know how the civil process of the courts is functioning and whether justice is being done in specific cases. ... In this case, there is great public interest in making sure that all proceedings are conducted fairly and without bias."

And, lo and behold, on Tuesday Judge Manoukian agreed.

The judge had sealed the case "out of an abundance of caution and concern that media coverage of this civil proceeding could adversely affect the fair trial rights" of Mack in his criminal case, he explained.

But, "I believe that most of you will agree that we never stop learning," Judge Manoukian said in a Monday letter to the attorneys which accompanied his decision to re-open the proceedings.

"This is the first First Amendment case I have had, at least in this context," the judge wrote. "It was very interesting reading, and I do hope that the enclosed decision and orders does justice to the RGJ's" arguments -- that the public has a First Amendment right to see and read everything associated with the lawsuit.

In his order, Judge Manoukian dealt with the concern that Mack wants the civil case open to help his chances in criminal court.

"The court does speculate that by requesting the unsealing of this proceeding, defendant wishes to further 'fuel' or factually support his motion to change venue," the judge wrote. But, "Even if true, it would not be appropriate for this court to keep the instant case file and proceedings sealed."

Judge Manoukian has done the right thing. But it's worth noting that he did so, in part, because all parties unanimously urged openness.

With the death this spring of Assembly Bill 519 (which would have required Nevada judges to hold public hearings on motions to seal court records and to disclose their reasons for granting them) individual Nevada judges still remain free to seal future proceedings -- as arbitrarily as Judge Manoukian at first did here -- especially if the parties should fail to present such a united front for openness.

That's why the Nevada Supreme Court's new Commission on the Preservation, Access and Sealing of Court Records still needs to take a close look at cases like this, not only to help shape its recommendations, but to underscore the need for additional formal restrictions on an arbitrary judicial power that could still reinstate the Star Chamber, undermining public confidence in our courts.