NEWS MEDIA UPDATE · WASHINGTON, D.C. · Secret Courts · March 13, 2007
Conference recommends change to secret dockets
March 13, 2007 · The policy-making body for the federal court system voted today to urge all federal trial courts to clearly indicate in their electronic docketing systems when cases are sealed instead of labeling the cases nonexistent.
The Judicial Conference’s move follows the uncovering of thousands of cases that proceeded through the federal courts completely shrouded in secrecy.
Last year, an investigation by The Reporters Committee for Freedom of the Press revealed that 469 criminal cases were not docketed in the U.S. District Court in Washington, D.C., during the five years ending Dec. 31, 2005. These defendants were indicted – and in many cases, prosecuted and sentenced to prison – in complete secrecy.
The findings were a surprise to officials in that federal trial court, including Chief Judge Thomas Hogan.
“None of us paid attention to that,” he said today. “It was reporters who figured that out.”
Hogan, who also serves as chairman of the Judicial Conference’s executive committee, said the problem stemmed from the federal courts’ electronic case filing system, which he said did not allow court officials to seal cases.
“The Reporters Committee did a good favor for us in discovering them,” Hogan said of the off-the-docket cases.
Keeping cases off the docket differs from sealing them. Sealed cases are assigned case numbers that appear on the docket. The only way to determine the existence of off-the-docket cases is to scroll through public dockets searching for missing case numbers. That means the public has no way of knowing the cases exist – and has no way of challenging the secrecy.
If a member of the public were to type a case number of an off-the-docket case into the court’s electronic filing system, the computer would read, “No such case.”
Shortly after learning of the off-the-docket cases, the Washington, D.C., federal trial court changed the system so that sealed cases appear as “SEALED v. SEALED; Case is not available to the public” instead of “No such case.”
Undocketed cases were not limited to that court. An investigation by The Associated Press revealed that nationwide, 5,116 defendants were tried, convicted and sentenced in secret in federal courts in 2003, 2004 and 2005.
Today’s Judicial Conference vote strongly urged all federal trial courts with electronic dockets to adopt similar rules so that computer notices for sealed cases read “case under seal” or “SEALED v. SEALED.”
Hogan said he was unsure how many other federal trial courts have already changed their electronic docketing systems to reveal the existence of sealed cases but said he expected courts to be able to change their systems within several months.
Hogan said judges in his court are also trying to ensure that old cases are examined to see if sealing is still warranted.
“We’re trying to clean out the old sealed cases,” he said.
The Judicial Conference also approved today a pilot project that would make audio recordings of courtroom proceedings available online through the court’s Public Access to Court Electronic Records (PACER) system.
The pilot project is expected to last six months to a year and would include federal trial courts and bankruptcy courts. The courts that will participate have not yet been determined.