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In search of the secret docket

From the Winter 2006 issue of The News Media & The Law, page 1. When a federal judge tells you…

From the Winter 2006 issue of The News Media & The Law, page 1.

When a federal judge tells you in front of 150 people that your claim — that there are hundreds of secret criminal cases in U.S. District Court in Washington, D.C. — is ridiculous, you're motivated to make sure you've got your facts straight.

U.S. District Judge Royce Lamberth publicly scolded me during a public forum at a December conference "Confidentiality in the Courts and Media — the Gathering Storm," co-sponsored by The Reporters Committee for Freedom of the Press.

He said there are only two types of "secret" cases in federal courts — those that involve civil False Claim Act cases and criminal cases involving guilty pleas that are unsealed after sentencing. All cases eventually become public, Lamberth said. I think the judge truly believes there is not a secret federal district court docket in Washington, D.C.

Reporters Committee legal fellow Susan Burgess and I exchanged incredulous looks when Lamberth said there are no secret cases in the federal courts. By that time, we knew that there were more than 460 of them in the District of Columbia federal court over the previous five years. So I sent journalism fellow Kirsten Mitchell and intern Melanie Marquez back to the clerk of court's office to double check their work.

The scary truth is that once a case is off the public docket in U.S. District Court in Washington, it's likely to remain that way forever. (See cover story, page 4) Even after defendants have served prison sentences, witnesses have died or informants have gone into witness protection, the court won't transfer a case to the public docket unless someone — prosecutors or an interested member of the public — petitions the court to do so.

But how do you petition the court to open a case if you don't know it exists?

An open court system is a hallmark of democracy. Alexander Hamilton wrote in Federalist No. 84 more than two centuries ago that a policy that allows "confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten" is a "dangerous engine of arbitrary government."

Hamilton's warning is as valid today as it was when this nation was founded. We hope that reporters around the country will use our "How we did it" guide (See story, page 6) to do similar investigations in their local federal courts.

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When I interviewed for this job six years ago, I'd never been in a New York Times newsroom. One of my job interviews was with legendary Times reporter David Rosenbaum, who had served on the steering committee since 1978 and was twice chairman of the executive committee. Between the storied atmosphere of the Times Washington bureau and David's preference to not engage in small talk, I was stressed. But I apparently passed muster with him, and quickly learned to count on his advice, which was thoughtful, direct and sincere.

David told me in late December that he planned to retire from the newspaper at the end of the year, and he thought his resignation from the Steering Committee should be effective at the same time. But, in typical Rosenbaum fashion, he wrote a detailed memo on his thoughts about the future of the Reporters Committee. While sad to leave the board, he said he was excited by the prospect of actually having more time in retirement to devote to Reporters Committee projects.

Two weeks later, David was tragically murdered while taking an evening stroll only two blocks from his Washington home. David was a constant, steady presence at the Reporters Committee for 28 years. We will miss him.