Defense Bar Protests Removal Of Plea Deals From U.S.

Web site, Daily Business Review, April 23, 2007

Criminal defense attorneys and a journalism advocacy group are criticizing a recent decision by South Florida federal courts to remove plea agreements from online court records.

According to several sources, the removal occurred due to concerns among federal judges nationwide about an Internet site, that publishes the plea agreements and names of informants and undercover agents. The Web site claims that by combing through state and federal court files, it has identified more than 4,000 informants and agents.

Plea agreements formerly were accessible online through the federal Pacer database system. But starting last October, they no longer could be viewed after the Southern District of Florida switched to a new electronic filing system.

A source within the U.S. attorney’s office who did not want to be identified said that taking plea agreements offline makes sense.

“Yes, you put the plea agreement in the court file,” the source said. “But you don’t want to take out an ad in the New York Times that the person is cooperating. That really puts a bull’s eye on [informants]. Why does everyone in the world need to know?” The source noted that the site is accessible to prisoners and others who may be intent on revenge.

The plea agreements still can be viewed in paper form by visiting the federal clerk of the court’s office. But this is not adequate in the eyes of many attorneys, who call it “practical obscurity” because most people are unlikely to make the effort to find the paper documents.

In an interview, Southern District of Florida Chief Judge William Zloch said the court simply is following guidelines established by the Judicial Conference. He asserted that the move was actually favored by the defense bar. “This has been requested by the defense bar,” Zloch said. “The defense wants to keep them private. They even request such files be sealed.”

But David O. Markus, president of the Miami chapter of the Florida Association of Criminal Defense Lawyers, said the plea agreements are “critical documents they are holding back. It severely impedes our ability to research potential government witnesses at trial.”

Miami criminal defense attorney Howard Srebnick criticized the removal of plea agreements from online records because “the public needs to know if someone is a drug dealer or a violent criminal. It’s relevant to the public, to a potential employer, to know if the person is trustworthy.”

Federal Public Defender Kathleen Williams said she was irked that removal of the documents from the online records was done without a court ruling or explanation.

Chief Judge Zloch said that in multidefendant cases, if one defendant accepts a plea, he or she might not want the other defendants to know about it. “The lawyers say, ‘It puts my client at risk,’ ” he said. “This is not being kept from the public. The agreements are just no longer available online.”

Zloch did not mention the Web site as a reason for removing plea agreements from online records.

After strong protests by Williams, a subcommittee of the Southern District of Florida rules committee, headed by Carlton Fields partner Nancy Henry, has been established to investigate why the agreements can no longer be viewed on the federal court’s electronic filing system and whether this is occurring in other districts around the country.

Lucy Dalglish, executive director of the Arlington, Va.-based Reporters Committee for Freedom of the Press, said taking plea agreements offline “is an unwise, unfortunate thing. There is public interest in knowing what the terms of such agreements are.”

When a defendant in a case enters into a plea deal with federal prosecutors, the details, including length of prison term, are spelled out in the agreement, which becomes a public record when it is docketed and included in the individual’s criminal case file.

Prosecutors throughout the country have expressed deep concern about the site, which was started by a Boston man who was charged with selling marijuana. The owner of the Web site did not respond to e-mailed questions sent by the Daily Business Review.

Although the Web site has been in existence for several years, federal judges became aware of it last November and began warning their colleagues in other districts.

In November, a memo was sent to all federal judges and magistrates by the chair of the Judicial Conference Committee on Criminal Law alerting them to the site and urging them to seal sensitive documents as a result.

“While it is important to maintain public access to the courts’ case files, it is equally important to maintain public access to the courts’ case files, [and] it is equally important to ensure that the information that is publicly accessible does not endanger any case participants,” the memo stated.

“Therefore we recommend that judges consider sealing documents or hearing transcripts in accordance with applicable law in cases that involve sensitive information or in cases in which incorrect inferences may be made.” The decision to seal may extend beyond plea agreements, the memo said.

Since plea agreements were removed from online records in the Southern District of Florida, an online docket entry in a case may read, “plea agreement.” But when the document is opened, the words “You do not have permission to view this document” appear.

Those wanting to view the plea agreement must drive to the federal courthouse where the case is being handled, sign in and sift through the court file.

Thomas R. Julin, a First Amendment attorney and partner at Hunton & Williams in Miami, said the issue does not yet rise to a First Amendment issue. “The courts still have a good deal of discretion as to how they make documents available,” he said. “The First Amendment does not require them to put things online.”

But Dennis Kainen, a Miami criminal defense attorney and member of The Florida Bar board of governors, said the court should not have pulled the plea agreements offline “in a knee-jerk reaction.”

He said a committee to explore the idea should have been set up immediately, the same way the Florida Supreme Court did when it took up the issue of privacy and Internet records. “This is the eternal war between privacy and the public’s right to know,” Kainen said.

The rules subcommittee studying the issue includes Williams; Henry; assistant U.S. attorney David Weinstein; Randy Berg, head of the Volunteer Lawyers Project; and attorney Jay Solowsky. The panel, which has not yet met, will make recommendations to the court on whether changes should be made.