March 5, 2006

Should Justice Ever Be Invisible?

Hatched by Dafydd

Associated Press (that exemplar of unbiased reportage) has an interesting article, carried by Fox News, raising (and utterly failing to analyze) an intriguing issue: under what circumstances should court proceedings be secret? For how long? How does one balance the defendant's rights to privacy, his Sixth Amendment right to a "speedy and public trial," and the First Amendment right of news agencies to investigate plea bargains?

First, let's set the stage:

Despite the Sixth Amendment's guarantee of public trials, nearly all records are being kept secret for more than 5,000 defendants [out of 254,000: 1.97% -- the Mgt.] 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.

We're not talking here about cases where national-security dictates that certain testimony remain secret (though surely some such cases are caught up in AP's statistical dragnet). Rather, we're talking about cases where a defendant cops a plea and testifies against his co-defendants... but then he wants all the details of the bargain and his testimony to remain secret, either because he is afraid of retaliation or because he was granted immunity, and he wants to live among the honest population without his neighbors knowing what crimes he confessed committing.

We can break this down further. Clearly, there are cases where secrecy is perfectly acceptable for some period of time. Even AP admits that much:

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.

However, the thrust of AP's article is that secrecy is being abused by the notoriously secretive Bush administration, though they never venture a reason why -- beyond the cackling-evil caricature that infuses so much of the Left's "critique" of George Bush and Republicans.

"This follows the pattern of this administration," said John Wesley Hall, an Arkansas defense attorney 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."

This part of the AP analysis is almost infantile. What "pattern" are they talking about? They want to keep classfied NSA intercepts secret! They want to keep secret CIA terrorist detention centers secret! They want to keep highly confidential private advice they get from their own lawyers secret! It's a secretive administration!

But divorcing the philosophical question from the raging paranoia and Bush Derangement Syndrome of many liberals, there is still a dilemma here: if there are cases where federal DAs request cases be sealed simply because the public would be absolutely outraged if they discovered how much the DA promised and how little cooperation he got, then that certainly is a serious problem that has to be fixed.

For example, to use the example AP cites -- an example that must be considered hypothetical, since the "facts" all come from the defense attorney of a defendant acquitted despite testimony by a cooperating witness -- consider a case where a person confesses to committing "seven murders" and then testifies against defendants who are charged with committing fewer.

That bargain itself could be defensible: for example, when Mafia underboss Salvatore "Sammy the Bull" Gravano was given immunity for the nineteen murders he admitted committing in exchange for his testimony against Gambino family boss John Gotti -- being tried for a single murder, that of his former boss, Paul Castellano. Regardless of the total number of killings, Gotti was far more dangerous a man than Gravano, who was a jumped up local capo, a glorified button-man for Gotti.

But if the details are covered by a shroud of official secrecy (as they were not in the Gravano/Gotti case), "we the people" have no way to judge whether the DA is doing his job; or whether, through laziness or actual complicity, he is letting the central figures off and dropping the hammer on the subordinates instead.

However, AP suggests no rule to follow, no method to determine when secrecy is reasonable. They content themselves with citing statistics that are supposed to be frightening -- "5,000 defendants," "secrecy more than doubled from 2003 to 2005" -- but which are actually less frightening when they get around to presenting the actual numbers:

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.

Nor does AP tell us how long they will remain sealed. Is there a time limit, or will they remain sealed in perpetuity?

Admittedly, it's tough to find out why secret cases are secret -- because it's a secret! But AP makes no attempt even to find a law enforcement expert to talk about the reasons for secrecy; literally every single person they quote is opposed to secrecy, using terms like "astonished and shocked," "a con on the community," "a really, really ugly system," "horrifying," "violates the defendants' rights not to mention the public's right to know." If we knew all the reasons why a court might seal a case, it might be clear that some of them would be perfectly acceptable, yet still require cases to remain sealed even after the sentencing. Without this basic information, we have no way even to imagine.

AP briefly discusses only one reason: fear of retaliation. Then they quote a defense attorney expressing bafflement that secrecy would continue after convictions:

Prosecutors argue that plea agreements must be sealed to protect witnesses and their families from violent retaliation. But [defense lawyer Lexi] Christ said that makes no sense after the trial when the defendants know who testified.

Yet I can think of another just off the top of my head: perhaps the "squealer" gave grand-jury evidence not only against these particular defendants but also against many other people not yet indicted, and maybe some of that played a role in the trial, or could have been deduced from some of the trial testimony. A smart reporter looking at the transcript might write a story that made it clear that six other people were likely secretly indicted and about to be arrested -- which might lead to those people fleeing the country and sending hitmen to kill the "cooperating witness" who was to testify against them at their trials, as well as the trial just concluded.

Such a scenario would significantly increase the risk to the witness and to the DA's upcoming case if the previous case were unsealed before the next round of trials. But there are also bad reasons for secrecy: suppose some DA gave Gotti immunity to testify against Gravano, for example; or suppose a serial child molesting priest like former Father John J. Geoghan were given immunity in exchange for testimony against Cardinal Law, for the lesser crime of covering up Geoghan's sexual assaults. We would rightly be outraged, and that DA should have to defend his bizarre decision.

So there is a real need for some sort of review by somebody beyond the level of the DA (who may want to cover up a dreadful error in judgment about offering immunity), the defense attorney (for whom a plea bargain may be the best deal for his client, even if it includes perpetual secrecy), and the judge (who may care only about removing some of the cases from his overfilled calendar and may approve a plea that is not in the best interests of the community). There should be some review of such cases by somebody not directly involved in the deal and the decision to keep it secret.

What I don't know, not being a lawyer, is in what branch this reviewer should work: executive or judiciary. Should it be the attorney general or an appellate court? Or both?

And isn't there such a procedure now? Is there a body that can lift such secrecy? I would think there is: the circuit court for that district, or a judge adjudicating a Freedom of Information Act request about the case. Alas, AP did not tell us whether there is some reason these normal modes of review don't work in such cases. Maybe documents related to sealed cases are specifically exempted from the FOIA; but does that mean no judge can release them, or just that they can remain secret if the government can show a compelling reason why? At this point, even after reading the article, I have far more questions than answers.

I'd love if some attorney who is actually familiar with the law regarding sealed cases were to opine on the subject. But AP really earns its moniker "lamestream media" this time, since they make no attempt to interview anyone who can shed light on any of these unknowns.

Hatched by Dafydd on this day, March 5, 2006, at the time of 4:59 PM

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Comments

The following hissed in response by: Dan Kauffman

How does one balance the defendant's rights to privacy, his Sixth Amendment right to a "speedy and public trial," and the First Amendment right of news agencies to investigate plea bargains.

The Sixth Amendment states "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

That is a Right it is not a Requirement, IE the Citizen may "waive" such rights as they deem. So the Right to a Public Trial could be waived by the defendent.

Now as to the News agencys?

The First Amendment States.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Now I fail to see any guarantee in there that the Press has to be informed of anything, the government cannot censor, but it does not at leas t in the First Amendment have to do the Press's job for it.


The above hissed in response by: Dan Kauffman [TypeKey Profile Page] at March 6, 2006 1:09 AM

The following hissed in response by: Bill Faith

Excellent analysis Dafydd. I smelled a rat when I read the item on Fox but
didn't know where to start to shoot it down. I've linked from http://www.smalltownveteran.net/posts/2006/03/should_justice_.html


The above hissed in response by: Bill Faith [TypeKey Profile Page] at March 6, 2006 1:10 AM

The following hissed in response by: Dafydd ab Hugh

Dan Kauffman:

Now I fail to see any guarantee in there that the Press has to be informed of anything, the government cannot censor, but it does not at leas t in the First Amendment have to do the Press's job for it.

If the "government" seals what is ordinarily a public event (a trial) and prevents the press from being able to cover it, isn't that censorship? Likewise, there is a federal law called the Freedom of Information Act. I don't know whether it includes court sentences, but it might.

If it does, then preventing the press from finding out about the sentence might also be a violation of federal law. A court would have to weigh these various rights and make a decision.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 6, 2006 2:03 AM

The following hissed in response by: Dan Kauffman

If the "government" seals what is ordinarily a public event (a trial) and prevents the press from being able to cover it, isn't that censorship? Likewise, there is a federal law called the Freedom of Information Act. I don't know whether it includes court sentences, but it might
*************************************************
Good points, the Freedom of Information Act is why I "specified" the Constitution, no fair using outside material Dafydd ;-)

Now as for "government seals what is ordinarily a public event"

The 6th Amendment does say. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,"

The accused ALSO has the right to waive such rights as they wish to.

Now you find me something in the Constitution and the Bill of Rights that give the Public the Right to Know, or the Press's Right to Know.

Censorship is when the Government prevents a Citizen from Speaking or Printing or otherwise disemintating information that they have. Not telling you something is NOT censoring you.

The question is which is greater the Right of the Citizen to be "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"

Which I find in the Constitution and some Right of the Press and the Public to "know" which I do not find in the Constitution,

The technicalities of the Freedom of Information Act may indeed supersede the guarantees of the Bill of Rights.

Is that a Good thing or a Bad thing?

Too much secrecy is a Bad thing but we are nearing a line where the Press seems to demand to be told everything, they don't want to be journalists anymore they are assumed the mantle of some extra-governmental office that has to be "reported to".

Then they get to twist, distort and lie about the information with impunity.

The above hissed in response by: Dan Kauffman [TypeKey Profile Page] at March 6, 2006 5:42 PM

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