ALLENTOWN, PA. — A legal services group that promotes First Amendment rights filed an emergency motion in Lehigh County Court on behalf of three Lehigh Valley news organizations Thursday, requesting the release of documents related to at least 22 criminal cases that have been kept from public view for two months.
Representing LehighValleyLive.com, LehighValleyNews.com and The Morning Call, the Reporters Committee for Freedom of the Press (RCFP) requested that a Lehigh County judge unseal the dockets linked to an interstate drug ring that allegedly operated two labs in Lehigh County.
Among those facing charges is Lehigh County Commissioner Zach Cole-Borghi. He is charged with possession with the intent to deliver a pound of marijuana and possession of marijuana, authorities have said.
In the motion, RCFP attorney Paula Knudson Burke argued that basic information about the defendants and their proceedings are being wrongfully kept from the public. Without those details, Lehigh Valley journalists have no way of tracking the cases without direct assistance from a court officer.
Access to the courts is protected by the First Amendment and the Pennsylvania Constitution, said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association. Open court proceedings and public review promote fairness and confidence in the judicial system, she said.
Under certain circumstances, judges may order that some documents be off limits to protect sensitive information. In those cases, however, the order sealing the documents must be available for public review and the scope of what’s being withheld must be limited, Melewsky said.
In this case, the RCFP could not locate any order sealing the documents.
“What’s happening is extremely unusual — and not in a good way. Secret dockets are not supposed to be part of the American judicial system.”Melissa Melewsky, media law counsel for Pennsylvania NewsMedia Association
In an interview Thursday, Lehigh County District Attorney Gavin Holihan said he believes the order itself is also sealed as it references sensitive information.
The dockets remain veiled even though court proceedings for at least some defendants have begun and at least 11 defendants have been released on bail. Nearly all of those defendants have been accused of working for a criminal organization, although Cole-Borghi has not.
“What’s happening is extremely unusual — and not in a good way,” Melewsky said. “Secret dockets are not supposed to be part of the American judicial system.”
In a case brought by the RCFP last year, the Pennsylvania Superior Court found a Westmoreland County judge improperly sealed off an entire criminal docket related to an alleged murder-for-hire case. The appeals court allowed the arrest warrant to remain sealed — prosecutors feared its release could lead to the destruction of evidence or intimidation of witnesses — but ordered the rest of the docket be made available.
“Constitutionally mandated open courtroom proceedings are of little value if the public has no means of learning where and when they will occur or if the public is entirely unaware that a prosecution is pending,” Superior Court Judge Victor Stabile said in the ruling.
Public official among those charged
On Thursday, Holihan said the dockets related to the case should remain sealed, though he declined to say why. Offering an explanation in public would reveal sensitive information that led to the dockets being sealed in the first place, he said.
“We are following the law as it pertains to sealing of documents for grand jury investigations and presentments. Part of that law requires judicial approval to keep the documents sealed, which we have done,” Holihan said. “If the judge reverses that decision in light of any other request from defense counsel or the media, that’s the judge’s prerogative. Our position is that we’re opposed to that for the same reason that we’ve sought to keep it sealed.”
To date, Holihan has publicly identified only one defendant in the case: Cole-Borghi.
“We are following the law as it pertains to sealing of documents for grand jury investigations and presentments. Part of that law requires judicial approval to keep the documents sealed, which we have done.”Gavin Holihan, Lehigh County district attorney
Voters will decide whether Cole-Borghi should have a second term on the Lehigh County Board of Commissioners this Election Day, but they’re being asked to make that choice while being kept in the dark about the allegations against him. Authorities have released no information detailing the charges.
Jim Deegan, executive editor of LehighValleyNews.com, said the media organizations banded together to protect the public’s right to access court records and attend open court proceedings.
Those rights are especially important given that Election Day is a few days away and that Cole-Borghi is on the ballot, he said. Voters ought to be able to learn more of what he’s accused of and hear what prosecutors intend to prove in court.
“This protracted secrecy surrounding court dockets is a major blow to the presumption of openness in Pennsylvania’s public records,” Deegan said.
“We stand with other Lehigh Valley reporters and news outlets in support of this motion and are grateful for the advocacy and substantial legal resources the Reporters Committee for Freedom of the Press is dedicating to this.”
Deegan, LehighValleyLive.com editor Nick Falsone and Morning Call editor John Misinco reviewed the case with the RCFP on Tuesday. They collaborated on the production of this story and agreed to publish it simultaneously on their platforms.
Drug lab busts
When Holihan announced the prosecutions on Aug. 29, he revealed that police had arrested 22 people, including Cole-Borghi. In addition, investigators destroyed two clandestine drug labs in the region and recovered at least 25 firearms; $100,000 in cash; 2,000 pounds of marijuana; THC liquid; cocaine; and MDMA pills, also known as molly, Holihan said.
However, no new information about the case has come to light since then, including the names of the 21 other people arrested, what criminal actions those individuals allegedly performed or what type of evidence authorities have collected. These details would normally be available for public review, but the dockets remain under seal.
At the news conference announcing the arrests, Holihan identified Cole-Borghi as one of the defendants. The county commissioner had been arrested the day before in front of dozens at Bethlehem City Hall, where he worked as a public records officer. Holihan said the reason he identified only Cole-Borghi was to dismiss rumors that he played a prominent role in the drug ring.
Bethlehem officials say Cole-Borghi no longer works for the city; he said he was fired.
Cole-Borghi has denied the charges, saying he has never sold anyone marijuana. He is free on $50,000 bail. Unlike some other co-defendants, prosecutors did not require him to prove that his bail money was not obtained through criminal activities.
Cole-Borghi said he has not been provided his criminal information, a standard court document that outlines the case against a criminal defendant.
Trail of documents IDs some defendants
Holihan said earlier this month that members of the public could have learned more about the case when some defendants went into open court for their bail hearings. But with no open records saying when and where the hearings were happening, that would require either a lucky break or a defense attorney inviting public scrutiny of their client’s alleged criminal behavior.
Despite the fact the charges against at least some defendants have been discussed in an open courtroom setting, Holihan declined to name those defendants or detail the evidence against them.
However, the RCFP was able to locate miscellaneous bail hearing documents against 11 defendants in the case who have not been previously identified in public. An incident number on the documents links the cases together but does not explain what the defendants have to do with one another.
The Morning Call requested additional documents related to those cases from the Lehigh County Clerk of Courts this week, but a reporter was told none were available.
The 11 defendants are:
- John Barber, 25, Bucks County, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and other charges related to organized crime and racketeering. He has been released after posting 10% of his $200,000 bail.
- Zachary Barr, 26, of Bethlehem, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and charges related to organized crime and racketeering. Barr was released on unsecured bail.
- Asan Cherkezov, 30, of Flushing, N.Y., is charged with theft with unlawful taking, conspiracy to commit theft, possessing the instruments of a crime and charges related to organized crime and racketeering. Cherkezov has been released after posting 10% of his $250,000 bail.
- Kenneth Grossman, 65, of Bethlehem, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and various racketeering charges. He has been released after posting $250,000 bail.
- Leah Grossman, 34, of Upper Macungie Township, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and other charges related to organized crime and racketeering. She has been released after posting $100,000 bail.
- Co Khuu, 31, of Northampton, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and charges related to organized crime and racketeering. Records indicate Khuu’s bail has been reduced from $750,000 to $350,000 bail but that Khuu remains at the Lehigh County Jail.
- Michael Loeb, no age given, of Bucks County, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and charges related to organized crime and racketeering. He has been released on unsecured bail.
- Diane Noctor, 64, Hellertown, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and other charges related to organized crime and racketeering. She was released after posting 10% of her $100,000 bail.
- Shanna Noctor, 42, of Hellertown, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and other charges related to organized crime and racketeering. She has been released after posting 10% of her $50,000 bail.
- Elhadji Sylla, 35, of Allentown, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and other charges related to organized crime and racketeering. Sylla has been released on unsecured bail.
- Kyle Urban, 51, of Chester County, is charged with possession with the intent to deliver, conspiracy to commit possession with the intent to deliver and other charges related to organized crime and racketeering. He has been released after posting 10% of his $250,000 bail.
