Two Utah newspapers sounded the alarms this week over a rule up for debate in the federal district court there that would heavily veil plea agreements in criminal cases.
The rule would effectively seal all plea agreements that include details about defendants cooperating with the authorities. In back-to-back editorials, The (Provo) Daily Herald and The (Salt Lake City) Deseret News denounced the proposal as an overreaction to the increasingly widespread availability of public records on the Web. The Daily Herald said it would run a curtain around the criminal justice system, arouse public suspicions and "potentially lay the groundwork for abuse."
“No one would know who agreed to say what about whom, or for what reason,” The Deseret News wrote.
Louise York, who is chief deputy in the clerk’s office of the Utah Federal District, said in an interview that the committee considering the policy change is “looking for some kind of balance” between making public documents available and protecting defendants who enter plea deals. Cooperating witnesses could fear retaliation, she said, and be wary of negotiating with the government.
A draft of the rule has been created and circulated for input, but defense attorney Henri Sisneros who is on the committee, said they are "nowhere near” a final document. The draft acknowledges a “common-law right to inspect and copy judicial records," but says in the interest of protecting cooperating defendants, all paperwork containing "information about the cooperation of any individual in a criminal case" is to be yanked from public view.
Anybody trying to access the documents would have to petition a judge to unseal them.
Utah-based media attorney Jeffery Hunt opposes the measure, calling it an “overreaction to the fear that cooperating witnesses may be threatened” and saying the risk of cooperating witnesses varies greatly from case to case and ought to be dealt with individually rather than with a blanket rule.
As described in the current issue of The News Media and the Law, the Judicial Conference of the United States was asked to address the online availability of plea agreements several years ago and opted instead to turn the issue back to the individual districts, along with suggestions for ways of addressing it.
The Utah committee is expected to decide on the rule within the next few weeks.