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Judicial Conference Ask Judges to Hide Snitch Records


By Jeralyn, Section Crime Policy
Posted on Mon Nov 13, 2006 at 02:44:54 PM EST Grits for Breakfast has the scoop on the memo that went out to federal judges asking them to consider sealing the records of those who cooperated with the government to get leniency in their own cases. The full memo is here (pdf).

What's behind the request? Their fear the snitches will turn up on the internet site Who's a Rat.

Among the items perceived as appropriate for sealing: Plea agreements of the cooperators. The Judicial Conference says they look forward to working closely with the Department of Justice in this matter.





Here's a sentence in the memo I find puzzling:

An example given is a motion to continue a sentencing hearing in which reasons are spelled out. Typically, at least those that I've seen, state that a cooperating defendant is still working for the Man and the sentencing should be postoned until the cooperation is finished so the court (based on the government's recommendation) can decide how much leniency to give.
What "incorrect inferences" can be drawn from such a pleading or any pleading in which the Government confirms or a defense lawyer states a particular defendant is cooperating?
I'm afraid this will lead to too much secrecy. When a person decides to cooperate, they put themselves at risk. They've made the decision that the risk of possible harm is outweighed by the reward of a reduced sentence. It's a deal with the proverbial devil -- but one that is well-thought out and arrived at with the benefit of counsel. Why should the public, and even potential employers, be denied access to this information?







Judicial Conference Ask Judges to Hide Snitch Records | 8 comments (8 topical, 0 hidden)






   Greater incentive to cooperate (none / 0) (#1)
by Gabriel Malor on Mon Nov 13, 2006 at 02:54:57 PM EST

This starts from the assumption that leniency in exchange for cooperation is a good thing. This new policy is just an example of fine-tuning the incentives. Now, instead of just consideration for a reduced sentence, it appears that judges may also consider giving the cooperating defendant protection by hiding the facts of his cooperation.


It already happens all the time (none / 0) (#2)
by Deconstructionist on Mon Nov 13, 2006 at 03:09:30 PM EST

  I've had many cases where documents were filed under seal and  hearings were held in camera.
  Now, if my clients were subsequently to become prosecution witnesses  against some other defendant, that defendant would be entitled to discovery disclosure of agreements, benefits received or promised and prior relevant statements by my client but the disclosure might be made under a protective order prohibiting the defendant from disclosing to anyone else or using the information for any purpose beyond defense in that case.
 


Other Judges (none / 0) (#3)
by Jeralyn on Mon Nov 13, 2006 at 03:20:54 PM EST

We have judges here who refuse to seal the plea agreements, making them available to all on Pacer...they also refuse to seal the cooperator's sentencing memos outlining their cooperation or close the courtroom during sentencing.
Also, I don't think the Judicial Conference is concerned about defense lawyers transmitting the information received from the prosecutor. They care about the documents being publicly available through Pacer or the court clerk's office.

[ Parent ]
Do your plea agreements include specific ... (none / 0) (#4)
by Deconstructionist on Mon Nov 13, 2006 at 03:41:42 PM EST

 cooperation agreements, promises of 35 9b) or other consideration -- or just the boiler plate cooperation/use immunity clauses?
  I agree with the second paragraph in that they are not often worried about the defense lawyers. (this memo is obviously a response to that particular website) but I do think judges are sometimes worried about defendants disclosing information.
  Sentencing memoranda  or memoranda in support of 35 (b) motions are, in my general experience anyway, a lot more potentially damning than the plea agreements common here.
 


Interesting... (none / 0) (#5)
by kdog on Mon Nov 13, 2006 at 04:59:32 PM EST

site...like the outlaw version of the "honest" citizen's ability to look up the criminal records of their neighbors online.  
If my neighbor has the right to know if I have a conviction on my record, why shouldn't I have the right to know if my neighbor is a habitual dime-dropper?


I was wondering about how I felt ... (none / 0) (#6)
by Sailor on Mon Nov 13, 2006 at 08:30:24 PM EST

and then I saw kdog's post and I thought 'good for the goose, good for the gander.'
I've always felt that freedom is more valuable than money. Yet prosecutors can trade freedom for testimony and the defense can't.
Gee, it almost seems like the system is unfair. [/understatement]


since my tax dollars are paying (none / 0) (#7)
by cpinva on Mon Nov 13, 2006 at 08:54:22 PM EST

for it, i have every right to see it, absent some incredibly compelling reason. all court documents should be part of the public record, unless national security risks are proven.
the mere fear of being exposed isn't sufficient. presumably, that was taken into account when the deal was cut. i don't think divorce records have any business being sealed. again, my tax dollars paid for the courthouse and the judge.
the best judicial system is a transparent judicial system.


Outlaw snitching. Period. (none / 0) (#8)
by 1980Ford on Mon Nov 13, 2006 at 09:40:19 PM EST

It is never just, never. Far more often unjust either because of perjury or because someone just as guilty receives a lesser sentence only because of snitching. If the prosecution cannot prove a case without a snitch, then it is not sound and does not pass Constitutional muster.