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, www.whosarat.com. 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.