Secret Plea Agreements

From the Summer 2008 issue of The News Media & The Law, page 4.

In 2004, Sean Bucci stood accused of selling thousands of pounds of marijuana on what he believed was flimsy evidence presented by a lone, heroin-addicted, paid FBI informant.

Frustrated with a system he believed bred false testimony, Bucci decided to take a stand. He launched the “Who’s a Rat” Web site, a searchable online database where users can post and gather information about local police, federal agents and informants. Bucci believed the forum would help defendants level the playing field against federal investigators.

It did not work so well for Bucci, who was later sentenced to 12 and a half years in jail. But that did not constrain the site’s rising popularity. It now offers members access to more than 4,500 profiles of alleged police informants — a database filled with information gleaned from many sources, including the federal courts’ online docketing Web site, PACER. The profiles identify the informants by name and photo, along with court documents detailing the plea agreements

Just as the site’s popularity grew, so did the level of unease at the Justice Department. A 2006 memo beseeched the federal courts to limit public access to plea agreements on PACER. Justice officials argued that the Internet was quickly becoming a breeding ground for witness tampering.

“We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as whosarat.com for the clear purpose of witness intimidation, retaliation and harassment,” the memo said.

The government had previously failed at shutting down sites similar to whosarat.com. In 2004, a district judge in Alabama ruled that such sites constituted protected free speech because they did not rise to the level of incitement or true threats, two categories of speech that fall outside the protection of the First Amendment.

In his ruling, Judge Myron H. Thomas additionally sided with sites that aggregate data about government informants as an appropriate exercise of defendants’ Fifth and Sixth Amendment rights to gather information and defend themselves.

“Even the wealthiest of criminal defendants is at a substantial disadvantage compared to the government,” Thomas wrote in U.S. v. Carmichael. “In light of this imbalance of power, the criminal defendant should have some leeway in addressing the public.”

Discouraged by this shortcoming, the memo from the Justice Department did not seek to shut down whosarat.com, but rather set its sights on the source material.

The agency’s demand to the judiciary was weighty. The letter called for a uniform policy removing not just the details of plea agreements, but also any reference to the plea agreements themselves from the judiciary’s online docketing system.

The letter warned that even “the notation of a sealed plea agreement or docket entry in connection with a particular defendant is often a red flag that the defendant is cooperating with the government.”

To address the prosecutors’ demands, the Judicial Conference of the United States convened hearings to consider implementing their suggestions in a nationwide policy governing the disclosure of plea agreements.

Public comment — including from the Reporters Committee for Freedom of the Press — overwhelmingly favored continued online public access to plea information. The public outcry, combined with the lack of hard evidence that any witness had been harmed by the disclosure of information in a federal court file, was enough to dissuade the Judicial Conference from instituting a mandatory nationwide policy.

Instead, the judiciary outlined several suggestions for district courts to consider using to protect their witnesses. The result has been an uneven, disjointed approach throughout the nation as district courts struggle to find a policy that safeguards both public access to court records and the welfare of federal witnesses.

In the District of Minnesota, where Judicial Conference chairman John R. Tunheim is a district court judge, the policy embraces broad public access to plea agreement information.

Plea agreements in the district are presumptively open. If an attorney presents good reason to fear for the defendant-turned-witness’ safety, any information indicating that the defendant is cooperating with federal authorities is removed from the plea agreement, which is filed both unsealed and online.

“My view is that we are a public court system and the public has a right to know how matters are resolved,” Tunheim said.

But not every district court has chosen to follow a policy so protective of public access.

In federal districts courts nationwide ranging from the Central District of Illinois to the Western District of Texas, from the Southern District of Florida to the Eastern District of Pennsylvania, plea agreements are disappearing from the online docketing system, as courts fear that defendants will use that information to go after the witnesses against them.

The policies in even these more restrictive districts do not completely sever public access to plea agreements.

A spokesperson for Frederico A. Moreno, the chief judge in the Southern District of Florida, pointed out that the public — including reporters — can continue to access plea agreement information with a simple trip to the clerk’s office in the federal courthouse.

Jeffrey Hunt, a media attorney who is a member of a committee creating a policy addressing online plea agreements for the U.S. District Court of Utah, pointed out that physical access to the plea agreements still significantly impacts a reporter’s ability to efficiently and accurately report on matters of great public interest.

“As a functional matter, [the Internet] is the way reporters access court records. In a day when newsrooms are slashing budgets and staffs, newspapers don’t have the resources to be able to send reporters to the federal courthouse to do research,” Hunt said. He noted that in Utah, there is only one federal district court, and some reporters might have to travel hundreds of miles to obtain plea agreement information. “Online is really the only meaningful access available.”

Hunt further criticized any decision to remove plea agreements from the online docketing system, while allowing continued in-person physical access. He said defendants and their associates — who would theoretically be the most likely to intimidate their accusers — can still easily obtain the same supposedly dangerous information, almost as easily.

Instead, Hunt advocated a case-by-case evaluation of plea agreements, weighing the defendant’s and the public’s interest in having access to the information against any potential threat.

“There may be cases where it is appropriate to seal a plea agreement, but we should be doing that the way we’ve always been doing that for the last 100 years,” Hunt said, adding that a court should address whether there are less restrictive measures other than sealing that would better embrace openness.

Some districts, after initially restricting access to online plea agreements, have started to hear the call of Hunt and other access advocates.

Responding to the concerns of the Justice Department, the Southern District of Iowa completely severed all access to plea agreements — online or otherwise — for a little over a year. But then Quad-City Times reporter Ann McGlynn spearheaded a movement to convince U.S. Attorney Matthew A. Whitaker to make wholesale changes to the system.

“There are a lot of really interesting issues with sentencing in federal courts,” McGlynn said, pointing to sentencing in crack cocaine prosecutions and the recent easing of strict federal sentencing guidelines. “It’s more vital than ever that we get a full complete understanding of why people are going to jail for so long.”

McGlynn’s argument was deemed a compelling one. The district completely overhauled its policy on plea agreements, turning from one of the most restrictive in the nation to one of the most accessible.

Now all plea agreements are presumptively open. Plea agreements can still be sealed, but only after supervisors have weighed the potential threat of compromising ongoing investigations against the public right to know. In the rare instance that the court does seal a plea agreement, the decision comes with factual findings explaining why the access had to be shut off.

“We think it’s important that the community members have the opportunity to look at any court proceedings,” said Mike Bladel, a spokesman for the district attorney’s office for the Southern District of Iowa. “It’s just good government.”

Bladel said that since the change on May 1, 2008, the district has yet to run into any problems with witness tampering or intimidation.

McGlynn echoed those comments.

“Most importantly, it’s the public that benefits because I can write stories about these people now,” McGlynn said.