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Partial fix

D.C. federal court acknowledges existence of sealed cases, but finding them requires search for gaps in docket. From the Spring…

D.C. federal court acknowledges existence of sealed cases, but finding them requires search for gaps in docket.

From the Spring 2006 issue of The News Media & The Law, page 10.

By Kirsten B. Mitchell

Hundreds of sealed criminal and civil cases that until recently were labeled with a falsity &#151 “No such case” &#151 are now being acknowledged as existing on the computer docketing system in U.S. District Court in Washington, D.C.

Finding the cases takes a bit of sleuthing for gaps in sequential case numbers on the docket &#151 a glitch in the court’s computer system for which there is no easy fix, court officials say. But the Administrative Office of the U.S. Courts is working on a solution.

The change comes in the wake of a Reporters Committee for Freedom of the Press investigation that revealed that during the five years ending Dec. 31, 2005, defendants in 469 criminal cases were indicted &#151 and in some cases prosecuted, tried and sentenced &#151 in complete secrecy in Washington’s federal court. (See “Secret Dockets,” The News Media & The Law, Winter 2006)

The hidden cases raise questions about two foundations of the American judicial system: openness to court proceedings and equal treatment for all defendants.

The cases also raise questions about the standards courts use in determining which cases should be so completely shrouded as to be not only sealed, but also kept off the docket.

Since the investigation, the shroud of secrecy has been lifted on 20 of those criminal cases, offering a glimpse into how they are kept out of the public eye.

Many involve multi-defendant drug prosecutions in which government and defense attorneys maintain &#151 and judges agree &#151 that revealing even the existence of a case could jeopardize it and the lives of people involved.

However, in two of the recently unveiled cases &#151 involving a public official receiving bribes and a woman who prepared a false income tax return &#151 the reasons remain unclear for witholding even the existence of the cases.

Secret journey

It was no secret to anyone seeking a fraudulent driver’s license in Washington, D.C., several years ago that Rosa Chavez was the woman to see. A Department of Motor Vehicles clerk, Chavez began typing false information about applicants into DMV computers in early 2002 in exchange for as much $400 a license.

By last summer, her scheme had netted more than $70,000 in bribes &#151 and a federal indictment.

When Chavez pleaded guilty in July to receiving bribes as a public official, the U.S. Attorney’s Office in Washington issued a press release praising the hard work and cooperation of Washington police, the FBI and others in cracking Chavez’s case.

Despite the publicity, the case was veiled in secrecy in U.S. District Court in Washington.

For all intents and purposes, the case didn’t exist.

“No such case,” the computer falsely read when Chavez’s case number &#151 05-cr-00198 &#151 was typed into the court’s public docket late last year and early this year.

The case recently returned to the public docket. But until the Reporters Committee asked about it, its file contained no written record of why prosecuting and defense attorneys and Senior U.S. District Judge John Garrett Penn originally wanted the case hidden from the public. The file shows that on the day of Chavez’s plea agreement Judge Penn ordered in a court hearing that “all pleadings, transcripts, docket entries, and hearings subsequent to its order,” be public, according to the case file. A footnote on the one-page order even notes that the portion of the July 26 hearing transcript subsequent to the arraignment proceeding “shall be filed on the public docket.”

Despite that, the case remained missing from the public docket.

A copy of the order in the case file lacks Judge Penn’s signature, which would be required to make it valid, but the docket text indicates that Judge Penn signed the order on July 27.

Four months passed and prosecutors filed a motion to unseal the case.

“Although the plea agreement did not require defendant to cooperate with the government, because of potential cooperation by the defendant, the Court orally ordered this matter be placed under seal. Whatever chance there was for cooperation has run its course,” Assistant U.S. Attorneys Robert Bowman and Daniel P. Butler wrote in their Nov. 11 motion.

The prosecutors noted that Chavez’s lawyer, Melvin L. Otey, did not oppose making the case public at that time, which he confirmed in an interview.

Penn signed the motion Nov. 14, which should have returned the case to the public docket.

But the case came up missing in repeated docket searches in December and early this year.

And just days after Penn granted the motion to make the case public, he sentenced Chavez to two years in prison.

Presumably, her sentencing hearing was open. But much of Chavez’s journey through the federal court system had taken place in secret because the very existence of her case was hidden.

Otey, a former federal prosecutor now in private practice, declined to discuss in detail the secrecy surrounding the case, but said, “for this particular case, there was absolutely nothing unusual or out of the ordinary” regarding the circumstances of the sealing.

He attributes the delay between the motion to unseal and the case’s appearance on the public docket to bureaucracy. “Sometimes these things are just administrative,” Otey said.

Bowman declined to comment, referring a reporter to Channing Phillips, a spokesman for the U.S. Attorney’s Office, who declined to comment beyond what is in court filings.

Sheldon Snook, administrative assistant to the chief judge and court spokesman, said in a written response to questions that “a docketing problem” kept the case from appearing on the docket as a partially unsealed case until after Judge Penn’s Nov. 14 order.

“The Clerk’s Office is now aware of the problem and has taken steps to ensure that it does not recur.”

Court records made public in mid-May show that secrecy was required because Chavez was planning to provide incriminating evidence against someone who had assaulted her in the past.

By the time the court records became public, Chavez was two months into her two-year sentence in the federal prison in Alderson, W.Va., in the Allegheny Mountain foothills.

Lingering questions

The Reporters Committee reviewed all 20 cases like Chavez’s that reappeared on the public criminal docket in U.S. District Court in Washington, D.C.

In the case of Nicole Williams, who is scheduled to be sentenced in June for preparing a false federal income tax return, there is no motion or order for sealing in the case file, leaving the public with no way of knowing whether the court properly balanced the public’s right to know with the court’s need for secrecy.

Williams entered into a plea agreement that was filed Oct. 22, 2004, the same day Assistant U.S. Attorney Julieanne Himelstein made an oral motion to seal all further proceedings. Judge Richard J. Leon orally granted the motion.

A Dec. 6, 2005, filing in the case hints at why, more than a year earlier, attorneys and the judge may have wanted to keep the case shrouded: a grand jury investigation.

Williams’ attorney, Lisa Alexis Jones, wrote in a court filing that U.S. attorneys have “advised [me] that there has been no further grand jury action with regard to the issues surrounding this matter since the parties were last in Court.”

While grand jury proceedings are conducted in secret, indictments and the resulting cases are generally open and on the docket. They can be shielded only with a court order after a showing by one or both parties that keeping the case open would endanger the life of someone involved in the case, alert potential targets of a government investigation, deter witnesses from testifying or cause potential witnesses or targets of an investigation to destroy evidence. None of those things are shown in Williams’ case file.

Her case became public sometime after Feb. 10 when Judge Leon granted the government’s oral motion to unseal the case, according to the file.

Cloak of secrecy

A review of the other 18 cases that recently reappeared on the docket shows how cases are kept out of the public eye in Washington.

Anthony Thomas’ case is typical. He was arrested on Nov. 6, 2001, after police searched his Washington apartment and found a .40-caliber handgun and two brown vanilla extract bottles with a “strong chemical odor consistent with that of PCP.” Thomas was charged with unlawful possession with intent to distribute 100 grams or more of PCP and unlawful possession of a firearm and ammunition by a convicted felon.

A few weeks later, Assistant U.S. Attorney Neil J. Gallagher asked the court to seal the case as part of a plea agreement in which Thomas agreed to cooperate with the government in an ongoing grand jury narcotics investigation. The need for secrecy was so vital that the case’s existence had to be hidden, Gallagher argued.

“The public docketing at this time of any notice that the government has filed a motion to seal the criminal information and other pleadings, records, proceedings and files and to delay entry on the public docket of the filing of this motion to seal, as well as Order granting such motion will likely substantially jeopardize an ongoing criminal investigation and place the personal safety of parties involved in this court investigation, as well as innocent bystanders, at substantial risk,” Gallagher’s Nov. 29, 2001, motion reads.

Chief Judge Thomas F. Hogan signed the order the next day for Judge Richard Roberts. In a Dec. 6, 2001, order to continue secrecy, Roberts penned: “The Government shall file a Notice as soon as the need for sealing no longer exists.”

Earlier this year &#151 four years after the case was sealed and kept off the public docket &#151 Assistant U.S. Attorney Debra L. Long-Doyle sought to unseal a transcript of a Dec. 6. 2001, hearing in Thomas’ case to help in the prosecution of coconspirator Andre Maurice Allen. Roberts signed the government’s motion Jan. 19, and then unsealed the entire case Feb. 9 after an oral motion from the government.

Downward departure

The U.S. District Court in Washington isn’t alone.

The Associated Press reported in March that there were 5,116 defendants who were tried, convicted and sentenced in secret in federal courts across the country from 2003 to 2005, numbers that the Administrative Office of the Courts released to AP. (See “The AP’s request.”)

The Reporters Committee’s and AP’s findings did not surprise Judge Hogan, he said, because of a practice known as downward departure.

Under sentencing guidelines that Congress passed in 1984, prosecutors in federal cases can promise defendants a reduced sentence &#151 a downward departure &#151 within the guidelines if they plead guilty and cooperate with prosecutors. In drug-related gang prosecutions, such cooperation can net prosecutors as many as 10 new cases. Those cases frequently require secrecy, particularly if a cooperating defendant is actively helping prosecutors snare other defendants.

“You cannot announce that you are doing it or witnesses will be killed or intimidated,” Judge Hogan said. “We’ve had multiple killings of witnesses in D.C.”

Phillips agreed, saying defendants in the hidden cases are almost always cooperating.

“The motivating factor for most sealing motions is downward departure,” he said.

The use of downward departure is higher in Washington, D.C., than nationally. In the year ending Sept. 30, 40 percent of federal sentences imposed in the nation’s capital were downward departures, compared with 27 percent nationally, according to data from the U.S. Sentencing Commission, which establishes sentencing policies and practices for the federal courts.

(The sentencing provisions, which were mandatory, are now advisory under the U.S. Supreme Court’s January 2005 ruling in United States v. Booker, which said that mandatory application of the guidelines violated the Sixth Amendment’s right to trial by jury.)

No good controls

Once a case is sealed in U.S. District Court, it can stay sealed for years, even after cooperating witnesses have testified.

The court typically will not unseal a case unless there is a motion from U.S. attorneys, and no formal system exists for reminding them.

“We don’t have good controls in place so that a case can be unsealed,” Judge Hogan said.

When he and his colleagues on the federal bench in Washington sentence a defendant, they &#151 like federal judges nationwide &#151 receive a pre-sentencing report written by the U.S. Probation Office to help guide sentencing. In U.S. District Court in Washington, that report includes a standard suggestion that in secret cases, judges consider adding “that the sealing order previously entered in this case is hereby vacated and the case is unsealed effective today.”

If that is too soon, “usually a year is plenty of time after sentencing,” Judge Hogan said.

“I think it would not be too difficult for us to go through the ones that are three or four years old,” he added.

Even after a case ends, reasons for secrecy might remain, said Richard A. Houck Jr., chief U.S. Probation Officer in Washington, D.C.

After a defendant is released from prison, “we don’t just say, ‘See ya,'” he said. “We are concerned about their return to the community. We don’t want them ratted out.”

No easy fix

In the 469 cases identified as missing from the docket, a check of the case numbers in the court’s Web-based Electronic Case Files (ECF) system late last year and early this year ended with this falsity: “No such case.”

“That should not happen,” Judge Hogan said. “We don’t sanction secret dockets.”

The court changed its procedure after the Reporters Committee investigation.

In a March 31 memo, the Administrative Office of the U.S. Courts reminded clerks and chief judges in the nation’s 94 judicial districts of extra steps that must be taken so “No such case” &#151 the default language for sealed cases &#151 does not appear.

“[C]ourts can display a message when sealed cases are queried that will protect the names of parties while acknowledging the existence of the case,” Robert Lowney, chief of the AOC’s District Court Administration Division.

In Washington, D.C., the change means that when a case number missing from the public docket is typed into the ECF system &#151 accessible in clerk’s offices and on the Internet in all but eight of the 94 judicial districts &#151 the message that returns is “SEALED v. SEALED; Case is not available to the public.”

The change “would address most concerns regarding the creation of ‘secret dockets,'” Lowney wrote.

But in the Washington court, the case numbers of sealed cases still do not appear on the docket. And the only way one can find them is to search for missing numbers on the docket, which runs sequentially from the first case to the last case filed in a calendar year.

Fixing that requires a change to the computer program written by the AOC which the nation’s federal courts use as a template for their docketing systems.

Judge Hogan asked the AOC to change the program so all case numbers appear on the docket, but computer programmers there say there is no quick fix, said Richard Carelli, AOC spokesman.

“Given the high risk associated with changes to the sealed information software &#151 for example, the risk of introducing an error that could result in the disclosure of sealed information &#151 it’s been decided that this is not a good candidate for a quick fix,” Carelli said in a prepared statement. “We need to follow the standard software change process, especially with regard to testing. Testing is, by far, the longest step of the change process.”

The issue has the attention of the court’s Local Rules Advisory Committee, a group of lawyers who advise a committee of three judges.

The committee recently proposed rules dealing with sealing civil cases and will turn its attention to sealing criminal cases. That will include consideration of missing docket numbers, said Washington lawyer John Aldock, chairman of the committee.

“That just sounds like we don’t fund our courts adequately enough for them to have appropriate software,” he said.

Judge Hogan, meanwhile, said the issue will be addressed.

“I’m glad you all brought it up and looked at it.”