Monday, November 13, 2006

Federal memo tells judges: Hide records on snitches

The right to face one's accuser in a public jury trial is a bedrock principle of American jurisprudence. But trends toward secrecy in federal courts are eroding that Constitutional guarantee.

In October I mentioned the feds had privately approached judges asking them to seal records of informants, mostly because of the possibility that public records could wind up on the Whosarat internet database. (Turns out it wasn't the Justice Department, but an agency I hadn't heard of made up of federal circuit court judges called the Judicial Conference; I don't closely follow the federal judiciary, I'm afraid.) Now, via a Whosarat message board, see the full memo (pdf) sent to judges. Here are some highlights:
we are writing to alert you to an Internet site that purports to identify informants in criminal cases. The website, uses publicly available information from many sources, including state and federal court case files, to identify undercover law enforcement personnel and persons suspected of cooperating with law enforcement. ...

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.
You've got to question that - not just "sensitive information," but information about which people might draw "incorrect inferences." When you're talking about criminal court proceedings, that's a broad category of information! Often, what inference should be drawn from the facts is exactly the central issue in a court case. The Conference also expressed concern regarding other documents being made public:
We also remind you that the Judicial Conference has established policies regarding the information in the criminal case files. At its March 2001 session, the Judicial Conference approved a policy restricting the routine public disclosure of the statement of reasons. (JCUS-MAR 01, p. 17.) In an August 13,2001, memorandum regarding the Conference's policy, the Administrative Office notified the courts that "the statement of reasons should no longer be filed, stamped, docketed, or placed in the public file by the clerk's office."
Maybe some lawyer who practices in federal court can help me out and tell us in the comments exactly what is a "statement of reasons," and why prosecutors would want to conceal it? UPDATE: A commenter helpfully informs us that "A 'statement of reasons' is a document prepared by a United States Probation Officer which justifies the sentence a federal judge imposes. The judge normally 'adopts' the statement of reasons."

Overall, looking at this memo, I can't improve on my analysis from October, when I called closing court records about snitches
a recipe for near-certain abuse. The informant system is rife with corruption - what's needed is greater discovery and more sunlight cast on the use and abuse of snitching by law enforcement, not less.

There's a reason court documents are public records in this country: The US Constitution insists that every defendant has a right to a public trial, as well as a right to confront their accuser. Diminishing the public's access to those records diminishes accountability for law enforcement at a time when there's ample evidence greater accountability is needed.
See also prior Grits posts on the subject of informants and the November Coalition's resource page on snitching.

UPDATE: Jeralyn adds her thoughts.


Catonya said...

Maybe I don't understand the difference between policy and law - but it sounds to me like the Judicial Conference is in effect 'altering' law? How is it this can be done without first passing through Congress?

Anonymous said...

A "statement of reasons" is a document prepared by a United States Probation Officer which justifies the sentence a federal judge imposes. The judge normally "adopts" the statement of reasons.

Phil said...

Don't you guys still hang women, children, and retards in Texas?

Gritsforbreakfast said...

What are you trying to say, Phil? Do you have a problem with that?

Anonymous said...

Who said the justice system was fair to begin with? Anybody can testify, rat out or just trade favors with the police in exchange for hiding a crime they have done. I think everything in life has a consequence, If you choose to work with the police, there is a consequence, if you choose to work against the police, there is a consequence for that too. Life is a double edge sword that should cut both ways. If a woman acuses a man of rape, I think that he has the right to publically face his accuser. Hiding her name from the public conceals weather or not she has a past of making false alligations.

We keep talking about justice and fairness, well in the real world, I really don't see things being so fair. If an accused, is found guilty, they say he was found guilty beyond a reasonable doubt. If he is found innocent, they say there not enough evidence to pruve the case beyond a reasonable doubt. But they say that with a shadow of guilt still hanging over his head. And I'm sure the media headlines when he was arrested will still serve to damage his future career or reputation in the community

I think people should make more sites like it goes to the heart of our free speach rights and gives the power back to the people, oh sure they say that we will abuse it. but government has never abused power before, why trust the public with power

Do you really think that one or two websites will destroy our entire justice system? If it will, then our justice system is simply too flawed to begin with. Judges hiding records on snitches is not going to stop someone from leaking or publishing their names, that's just a judge blocking free speach and using an argument of protecting the public from abuse, well, I guess that this practic will be standard practice in every court room, therefore, by-passing the constitution and changing the law without publically saying so. In effect this would be called secret trials.