Judicial Conference Ask Judges to Hide Snitch Records

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:

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.

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?

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    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.


    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.

    no simple answers (none / 0) (#9)
    by Deconstructionist on Tue Nov 14, 2006 at 08:24:23 AM EST
      The tendency here to take complex,  multi-faceted issues with huge real world impacts and turn them into simple abstract issues of inarguable right and wrong is disturbing.

      How many people would prefer it if  the  use of the "snitches" who helped bring down Nixon was illegal?

       We live in a world where crime exists. Certainly, "snitching" creates both personal and institutional moral dilemmas. Unquestionably, many abuses exist in the criminal justice system. At its worst, we sometimes see situations where law-enforcement essentially becomes a co-conspirator providing tacit "protection" to one  bad guy to get another one.

       Recognizing these very real problems should not lead to the conclusion that therefore no one involved in criminal activity can be a competent witness in a criminal trial.


    ah grassdeconhopper, wrong again! (none / 0) (#10)
    by cpinva on Tue Nov 14, 2006 at 10:16:43 AM EST
    snitches didn't bring down nixon, nixon brought down nixon. woodward & bernstein helped. as it is, they were all guilty, and they were all outed, there were no "secret" deals cut with any of them.

    of course, i didn't suggest outlawing plea bargains, which is pretty much what snitching is, merely pointing out that they should all be a matter of public record.

    not the same thing as a witness, not accused of anything, agreeing to testify solely for the public good, and at personal risk to themselves.

    re (none / 0) (#11)
    by Deconstructionist on Tue Nov 14, 2006 at 11:28:39 AM EST
     Many if not most plea bargains do not involve anything that would be broadly termed "snitching," so outlawing snitching is a different issue. we would still have plea bargains in most cases without the snitching.

     Most of us would define "snitching"  roughly as disclosing inculpatory evidence about a third person or cooperating with law enforcement to gather evidence about that third person in the hopes of receiving a benefit or currying favor within the system. Some might define it even more broadly to include telling on someone for no anticipated benefit from the system.

       Would you oppose the use of a "snitch" if your child was raped and murdered and one of the culprits agreed to testify against the other culprit in exchange for a reduced sentence? Is your moral sense that it would be better to allow the other to escape accountability rather than use "tainted" testimony?  i doubt that form of snitching would be opposed by very many.

       The use of confidential informants in buy-bust stings is certainly more problematic but it is just one aspect of snitching.  

       Moreover, would you have a differne  view of a snitch wearing a wire to record a drug deal than you would of one wearing a wire to record a powerful politician taking a bribe to steer a contract to Halliburton?


    Strawman alert!!! (none / 0) (#12)
    by Sailor on Tue Nov 14, 2006 at 03:28:49 PM EST
    Would you oppose the use of a "snitch" if your child was raped and murdered and one
    Gee, what if the snitch was the one who did it but implicated someone else and got off!? What if the snitch had a nuclear weapon and it was going to go off in 24 hours and ...

    Neither of decon's posts have had much connect with the actual topic, or even reality.

    snitches should be part of the public record, and DAs shouldn't be able to offer $$ or freedom or anything else of value for their testimony.

    I'll get chastised again probably... (none / 0) (#13)
    by Deconstructionist on Tue Nov 14, 2006 at 03:53:57 PM EST
      but sometimes the level of stupidity demands note, Sailr. Your post is another example.

      Whether records should always be available to the general public is one issue. whether the use of testimony from snitches-- or more generally others with a stake in outcomes is another.

      First, the no snitch testimony law would be bad law. Anyone with knowledge of events and the mental competency to testify should be permitted to testify. Facts pertaining to their bias and credibility certainly should be disclosed to the defendant and the subject of vigorous cross-examination. Juries are cautioned about the need to carefully scrutinize informant and accomplice testimony and they should be very skeprical but they should not be prohibited from hearing relevant evidence.

      As for public disclosure, obviiously the judicial conference is worried that public disclosure in some cases mmay instigate the commission of violent crimes which would seem to be a valid concern.

      Interestingly, in a somewhat analogous circumstance people here seem to come down exactly on the opposite side. When the subject is registration of convicted sex offenders and the publication of their identity and location people here express concern for their privacy and the potential for them to be harmed. I'd agree that those are valid concerns but find it quite revealing that we see more concern for convicted sex offenders than for snitches.

      I'm not about to champion the virtue of snitches as a class, but the expressions of outrage over revealing their identity and location coupled with the demand for the revelation of the identity and location od snitches seems, shall we say, peculiar.

      Other than an unthinking reaction that law enforcement is always wrong so we don't need to think, I fail to see how these positions are reconciled.


    Gee, he still can't a (none / 0) (#14)
    by Sailor on Tue Nov 14, 2006 at 11:41:11 PM EST
    but sometimes the level of stupidity demands note, Sailr.
    Wow, you really are sic!

    Most of the rest of us offered our opinion on the topic of the post while you make personal attacks and regurgitate strawmen.

    For the learning impaired I'll repeat: snitches should be part of the public record, and DAs shouldn't be able to offer $$ or freedom or anything else of value for their testimony.