Feds shroud many cases in secrecy

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Feds shroud many cases in secrecy

Criminal trial records

By Michael J. Sniffen and John Solomon THE ASSOCIATED PRESS


WASHINGTON— Despite the Sixth Amendment’s guarantee of public trials, nearly all records are being kept secret for more than 5,000 defendants who completed their journey through the federal courts over the last three years.

Instances of such secrecy more than doubled from 2003 to 2005.

An Associated Press investigation found, and court observers agree, that most of these defendants are cooperating government witnesses, but the secrecy surrounding their records prevents the public from knowing details of their plea bargains with the government.

Most of these defendants are involved in drug gangs, though lately a very small number come from terrorism cases. Some of these cooperating witnesses are among the most unsavory characters in America’s courts — multiple murderers and drug dealers — but the public cannot learn whether their testimony against confederates won them drastically reduced prison sentences or even freedom.

In the nation’s capital, which has had a serious problem with drug gangs murdering government witnesses, the secrecy has reached another level — the use of secret dockets. For hundreds of such defendants over the past few years in this city, should someone acquire the actual case number for them and enter it in the U.S. District Court’s computerized record system, the computer will falsely reply, “no such case” — rather than acknowledging that it is a sealed case.

At the request of the AP, the Administrative Office of U.S. Courts conducted its first tally of secrecy in federal criminal cases. The nationwide data it provided the AP showed 5,116 defendants whose cases were completed in 2003, 2004 and 2005, but the bulk of their records remain secret.

“The constitutional presumption is for openness in the courts, but we have to ask whether we are really honoring that,” said Laurie Levenson, a former federal prosecutor and now law professor at Loyola Law School in Los Angeles. “What are the reasons for so many cases remaining under seal?”

“What makes the American criminal justice system different from so many others in the world is our willingness to cast some sunshine on the process, but if you can’t see it, you can’t really criticize it,” Levenson said.

The courts’ administrative office and the Justice Department declined to comment on the numbers.

The data show a sharp increase in secret case files over time as the Bush administration’s well-documented reliance on secrecy in the executive branch has crept into the federal courts through the war on drugs, anti-terrorism efforts and other criminal matters.

“This follows the pattern of this administration,” said John Wesley Hall, an Arkansas defense lawyer and second vice president of the National Association of Criminal Defense Lawyers. “I am astonished and shocked that this many criminal proceedings in federal court escape public scrutiny or become buried.”

The percentage of defendants who have reached verdicts and been sentenced but still have most of their records sealed has more than doubled in the last three years, the court office’s tally shows.

Of nearly 85,000 defendants whose cases were closed in 2003, the records of 952 or 1.1 percent remain mostly sealed. Of more than 82,000 defendants with cases closed in 2004, records for 1,774 or 2.2 percent remain mostly secret. And of more than 87,000 defendants closed out in 2005, court records for 2,390, or 2.7 percent, remain mostly closed to the public.

The court office also found a sharp increase in defendants whose case records were partly sealed for a limited time. Among newly charged defendants, the numbers in this category grew from 9,999 or 10.9 percent of all defendants charged in 2003 to 11,508 or 12.6 percent of those charged in 2005.

But the AP investigation found, and court observers agree, that the overwhelming number of these cases sealed for a limited time involve a use of secrecy that draws no criticism: the sealing of an indictment only until the defendant is arrested.

The AP’s investigation found a large concentration of both kinds of secrecy at the U.S. District Court here: limited sealing of records and extensive sealing that continues even after courts are done with a defendant.

No matter how few turn out to be almost totally sealed after the defendant’s case was completed, “it’s still significant,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press and a pioneer in campaigning against court secrecy.

“The Supreme Court has said that criminal proceedings are public,” Dalglish added. “In this country, we don’t prosecute and lock up convicts and have no public track record of how we got there. That violates the defendants’ rights not to mention the public’s right to know what its court system is doing.”