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April 2008

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This article is in the news archives --- for current news go to the Third Branch News.

 

Federal Courts Urged to Protect Cooperating Defendants


Federal trial courts are being asked to consider adopting a local policy that protects information about cooperation in law enforcement investigations while recognizing the need to preserve legitimate access to court files.

A Judicial Conference committee has decided against recommending a national policy, and instead is urging each court to adopt its own protocol.

For the past year, the Conference Committee on Court Administration and Case Management (CACM) considered the implications of web sites, such as www.whosarat.com, that attempt to identify undercover officers, informants, and defendants who provide information to law enforcement authorities.

In December 2006, the Department of Justice proposed a change in Judicial Conference policy—a change that would eliminate Internet access, through the Judiciary's PACER system, to all plea agreements.

The CACM Committee solicited (see www.uscourts.gov/Press_Releases/privacy091007.html) and received public comment (see http://www.privacy.uscourts.gov/2007comments.htm) on the Justice Department proposal. It then deliberated about the Justice Department proposal and the public comments received.

The Committee determined that prohibiting public Internet access to all plea agreements, most of which do not disclose a defendant's cooperation, while simultaneously leaving all plea agreements available to the public in clerk's offices is an inadequate solution. It declined to endorse the Justice Department proposal.

The Committee noted that several district courts have developed solutions that work locally but, given the variations in circuit case law, would not be appropriate as a national policy. The matter, instead, was referred directly to each district court, with the instruction that any such policies should be the least restrictive to promote legitimate public access.

In communicating with the district courts, the Committee listed the various suggestions received, from inside and outside the Judiciary, during the public comment period.

Among those included:

  • Enter a court order restricting Internet access to the plea agreement to the parties on a case-by-case basis.
  • Delay the publication of any plea agreement that includes cooperation information, perhaps until after sentencing.
  • Restructure the court's practices to make each case appear identically on PACER. For example, in the District of North Dakota, this was accomplished by filing all plea agreements as public (unsealed) documents, sanitized by the drafter of any references to cooperation. All pleas are accompanied by a sealed document, "plea supplement." That document contains either a cooperation agreement or a statement that no agreement exists.