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New policy requires prosecutors to make plea agreements public

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    NMU         CALIFORNIA         Secret Courts         Dec 17, 2002    

New policy requires prosecutors to make plea agreements public

  • Federal judges aborted an unwritten rule that kept plea agreements hidden from public view.

Plea agreements must be filed in San Diego’s federal court beginning Dec. 16, making these court records accessible to the press and public.

This federal court order puts an end to an unwritten policy whereby judges and prosecutors in San Diego enabled plea agreements to be kept out of public view.

Under the old unwritten policy, San Diego federal judges looked at plea agreements and handed them back to prosecutors so they never became a part of the public court file, said Scott Wahrenbrock, counsel for The San Diego Union-Tribune.

“This policy violated not only Ninth Circuit precedent, but also the U.S. Attorney’s own rule, which requires the filing of plea agreements with the court,” Wahrenbrock said.

The Union-Tribune tried unsuccessfully to obtain plea agreements informally by working with the U.S. Attorney’s office and the court for more than a year.

However, according to Wahrenbrock, “The U.S. Attorney was given unfettered discretion in deciding whether to release all, part, or none of these court records to reporters.”

As a result, the Union-Tribune initiated several suits for access to plea agreements and to challenge the court’s policy.

In a frustrating process, whenever a newspaper would file a motion to access plea agreements, the plea agreements would be placed under seal, and the court order explaining the reasons for the secret plea agreements also was filed under seal, Wahrenbrock explained.

“The court said there were good reasons to seal it, but we’re not going to let you know what those are.”

After the newspaper filed a petition to the U.S. Court of Appeals in San Francisco (9th Cir.) seeking access to plea agreements issued in money-laundering cases, the San Diego federal court changed its policy and now requires plea agreements to be part of the public record. Under the new policy, the court reserves the right to file plea agreements under seal on a case-by-case basis.

The new policy affects only plea agreements filed after Dec. 16 so the Union-Tribune will need to wait for a ruling on its petition before it will know if it can obtain access to plea agreements filed in connection with prior money-laundering cases.

Full disclosure is necessary “to ensure that defendants entering into a plea agreement understand the terms of the agreement before relinquishing their rights, and that the court and the public at large accurately assess the terms of the plea and feel it is a fair and just resolution,” attorneys for The Copley Press, Inc., publisher of the Union-Tribune, wrote in the newspaper’s petition to the Ninth Circuit.

(In re The Copley Press, Inc.; Media counsel: Guylyn R. Cummins, Gray Cary Ware & Freidenrich LLP, San Diego, Calif.) ST

© 2002 The Reporters Committee for Freedom of the Press

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