We urge the federal court in Utah to refrain from adopting a new rule that would close public access to any plea agreements that reveal whether a defendant is cooperating with authorities.
The rule would strike at the heart of the public's right to know what has happened in a criminal case. It would diminish public trust in the judicial system and potentially lay the groundwork for abuse.
And it's unnecessary. The proposal addresses a fear that may be a mere chimera.
Now being pondered by the Rules Committee for the District of Utah, the measure would basically seal all cooperation agreements. Behind it is a fear that criminals are becoming more active in retaliating against their former pals who supply evidence against them. There are even Web sites that purport to identify those who turn state's evidence, such as whosarat.com.
But sealing records is a gross overreaction. First of all, there's little evidence that those who cooperate with authorities are actually in special danger -- aside from the occupational hazards of being a criminal. Nor has the existence of so-called "rat" Web sites been proven to pose real threats to anyone.
An open judicial system is a linchpin of any democratic system. The government wields great power in court, and it must be balanced by the public's involvement. We may take free courts for granted, but secret courts are one of the most feared weapons of any dictator. We don't want the camel's nose in this tent.
Under the First Amendment, it is presumed that all court proceedings and records are open to the public, unless some very immediate danger of opening them can be shown. Open proceedings protect defendants and reassure the public that fairness and justice have been achieved.
By contrast, keeping court proceedings secret always sparks suspicion and distrust, ultimately undermining the authority and effectiveness of the courts.
For example, consider a mugger who is convicted, then a short time later appears back on the streets. Nobody knows that he was given special treatment in return for help on other cases. And so it's natural that many people may simply criticize the courts for leniency. Multiply that effect over other cases, and soon the public as a whole loses faith in the justice system.
That's bad enough, but there's more. Secrecy deprives voters of their ability to hold an elected district attorney accountable if the deal-making process is abused.
Whenever the government's workings are hidden from the public, corruption easily follows. Think of a gangster who receives an unexpectedly light sentence. With secret agreements it will be impossible to know whether he provided valuable information or simply bribed somebody.
Plea agreements are no minor detail. Courts have recognized that any plea agreement is in effect at trial, and many of the facts that would normally come out before the judge, jury and spectators come out only in the plea agreement. To shut up cooperation agreements would be, in effect, to hide key information from the public eye and remove a valuable check on the power of prosecutors, judges and defense lawyers.
The proposed rule supposedly would allow for the seal to be challenged. But as drafted, the regulation would set up a system that would not even record the existence of a cooperation agreement on the public docket. Practically speaking, neither public nor press would be able to have the deal unveiled because they wouldn't even know about it. Such secret docket sheets would break the chain of documentation that makes it possible to follow most cases.
It would be better to maintain the "default" position that records are open. This allows cooperation agreements to be reviewed on a case-by-case basis, and to be made confidential if the defendants can show they are running genuine risks.
It should be noted, however, that the dangers are more the stuff of movies than real life. For decades cooperation agreements have been part of the public record, and there's no sign that convicts who have cooperated with authorities are more at risk than are other criminals.
This is especially true because many crimes are non-violent, and -- again, unlike the movies -- don't draw physical retribution. Your average mortgage fraud ring, for instance, doesn't go around bumping off informers, for instance.
It's also hard to see how sealing the records helps. It might even hurt. Assuming that some criminal gang is sufficiently determined and ruthless to punish a rat, they might just decide to try to assassinate any gang member who was imprisoned, on the assumption that in their line of work, it's better to be safe than sorry.
We urge federal court officials to keep the burden of proof where it belongs: on those who want secrecy. Let the defendants and their lawyers justify the sealing of cooperation agreements. Those really at risk can be protected, but that's not everybody.
Protecting the broad right of the public to scrutinize the operations of government -- including courts -- far outweighs any immediate danger to crooks.
Posted in Editorial on Monday, September 8, 2008 11:00 pm
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