Federal prosecutors want to shutter public access to plea agreements

Marcia Coyle / Staff reporter
September 17, 2007 National Law Journal

WASHINGTON — The Department of Justice has asked the federal judiciary to eliminate public Internet access to plea agreements in criminal case files and all related docket notations.

The judiciary currently provides public Internet access to all nonsealed plea agreements in electronic case files. This policy has been in effect since November 2004, but most courts did not implement it until they adopted an electronic case file system, typically at some point between 2005 and 2007.

In response to concerns raised by the Executive Office for U.S. Attorneys in a letter to the Judicial Conference of the United States, the conference has called for public comments on whether it should change its Internet access policy for plea agreements.

The Executive Office, in its letter, said that as a result of twin developments — an increased number of violent crime prosecutions in which cooperating defendants and witnesses are needed to assist law enforcement, and increased Internet access to court records — "We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as www.whosarat.com or the clear purpose of witness intimidation, retaliation and harassment."

The department made three recommendations to the judiciary: a uniform policy removing all plea agreements — including docket notations — from Internet access via PACER; the posting of notices on PACER and ECF log-in screens warning against republishing or other use of court records for illicit purposes, and endorsement of a nationwide policy restricting the use in courtrooms of cellphones and other electronic devices capable of photographing, videotaping or recording witnesses or parties.

Sealing plea agreements is not sufficient, said the letter, signed by then Executive Office Director Michael Battle, because "for anyone with Internet access, a PACER account and a basic familiarity with the criminal docketing system, 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."

Defense bar divided

Veteran criminal defense attorney Peter Goldberger, of counsel to the Law Offices of Alan Ellis in Philadelphia, said defense lawyers as a group are not of one mind on this issue. Individual defense lawyers don't have the same concerns when they are representing a cooperating witness as when they are representing someone who is a target of cooperating-witness testimony, he said.

From his perspective, Goldberger said, the costs of restricting public Internet access to plea agreements outweigh the benefits. It would increase defense costs, make investigations more difficult and hinder the defense's evaluation of the case against the client, he explained.

The Justice Department's approach "presumes every cooperating witness is in danger and every accused person not cooperating is a danger to witnesses," he added. "The fact is it's a rare occurrence."

It would seem possible to write plea agreements in ways that don't expose cooperating witnesses to danger, said Kent Scheidegger, general counsel of the Criminal Justice Legal Foundation.

"I understand fully there is a need to limit access to protect victims and witnesses, including informants," he said. "But I don't understand why that identity information needs to be in a plea agreement."

And because the judiciary has indicated that plea agreements, unless sealed, still would be accessible at the courthouse, Scheidegger said, "People who are intensely interested enough in a particular case can still get the information. If your purpose is to protect witnesses from retaliation, then you're protecting them from someone who is intensely interested in a particular case and it seems a small margin of additional protection."

Four years ago, the Judicial Conference adopted a privacy policy for criminal case files that provided the same level of public access to electronic case files as was being given to paper case files.

The 2003 privacy policy and pending federal rules on privacy announced by the U.S. Supreme Court in April require the redaction of certain information from all case files, such as Social Security and financial account numbers, and, in criminal cases, home addresses. The pending rules also allow courts to seal documents or limit public Internet access on a case-by-case basis for good cause.

The judiciary is seeking public comment until Oct. 26 on changing its policy with respect to plea agreements.