Proposal to Limit Access to Plea Agreements on PACER

Marcy at Next Hurrah and Looseheadprop at Firedoglake are discussing the invitation to comment on whether plea agreements should be removed from PACER and public access to them denied.

Here's the notice and comments are being accepted until October 26.

I haven’t decided how I feel about removing access to plea agreements yet. As a blogger, I’d like them to stay up. As a defense lawyer, it’s probably better that access be restricted.

But it’s important to note they are only considering limiting access to a single document, a plea agreement. All other pleadings would remain accessible.

Here's an argument for restricting access to them:


Federal plea agreements contain a section called “Factual Basis for the Plea.” In that factual basis, the details of the crime are laid out, including names of those with whom the defendant interacted. In cases involving cooperation, which is most cases these days, the names are not of informants but of codefendants and co-conspirators, including those indicted and not.

Also, in the sentencing guideline calculation portion of the plea agreeement, it states if the defendant is cooperating for a sentence reduction. This could put the defendant or his family at risk from co-defendants who haven’t pleaded guilty.

An easy answer would be for the defense lawyer to file a motion to seal the plea agreement in cases in which the defendant might be physically harmed by the disclosure. However, some judges, at least in my district, have refused to seal the plea agreement believing the public has a right to know.

Access to a cooperator’s plea agreement can also jeopardize his or her safety when he gets to prison. He arrives with a "snitch jacket" with all the details spelled out.

In the Libby case, no one pleaded guilty. This proposed change would not affect the access to any of the online pleadings and orders in that case.

In the Abramoff case, on the other hand, almost of those snagged cooperated and the details are in their plea agreements. However, you can get almost the same information from other pleadings filed in the cases by both sides.

And, you will can still discern who cooperated by reading the Sentencing Order and Judgment of Conviction. Any downward departure for cooperation will be included.

Now, on the other hand, as to why I'd like them to remain online, even as a lawyer: The plea agreements can be invaluable and necessary investigatory tools in my clients' cases. For example, if I have reason to believe that a certain person is incriminating my client, I want to know if that person had their own case and got a reduction for cooperation. I want to see what they admitted to in the factual basis of their plea agreement, so that I can see if it matches or differs from what they are now claiming. I want to see their criminal history, which is available in their plea agreement.

If this person is going to be a trial witness against my client, I would get the plea agreement in discovery -- at some point. But, if the person just provided information and is not going to be a witness, I might not.

There are numerous other reasons that as a lawyer I would want access to plea agreements.

I also think many prosecutors put far too many unnecessary details in the factual basis of plea agreements. The point is only for the defendant to admit facts constituting a crime. If prosecutors were encouraged to shorten this section, perhaps the problem with making them publicly available would dissipate.

Anyway, I'm out of time, and may come back to this later, but these are my initial thoughts.

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    Even redacting (5.00 / 1) (#4)
    by Deconstructionist on Thu Sep 13, 2007 at 02:43:59 PM EST
      should not be the "default" scenario. Absent a showing that some compelling  interest of the government or the defendant outweighs the right to know and supports a limitation on disclosure there should be no limitation. Upon a showing then the court could determine if redaction would suffice or whether limiting electronic access to the document or in some cases sealing documents is necessary.

    Exactly. (none / 0) (#5)
    by oculus on Thu Sep 13, 2007 at 02:48:05 PM EST
    An interesting issue (none / 0) (#1)
    by scribe on Thu Sep 13, 2007 at 01:54:30 PM EST
    I think the idea raised over (IIRC) at FDL was a good one too - that it appears federal judges like the way bloggers have handled themselves vis-a-vis the cases where blogging has gone on, and this inherently recognizes the right of the people to know what's going on in their court.  

    As to plea agreements, I have no problem with the current format - I think your criticism of over-factualizing the plea is very well-founded.  I'd suspect that, bureaucracies being bureaucracies, the over-factualized plea agreements are as much a substitute for (or appendix to) the US Attorney's press release on the successful conclusion of a particular case.  Therefore, the AUSA plumps up his/her narrative to show what a tough, good lawyer they are (and please remember this come evaluation time, boss).

    The cooperation of particular persons or the involvement of unindicted co-conspirators can be easily masked by descriptive names ("Cooperating witness #1") ("Unindicted co-conspirator #2");  that's more an issue of changing the USA's offices drafting procedures.  It should not be an issue of limiting the public's access to the courts and public records.  They already redact SSNs and such - they can redact names, too.

    Blogging - using court records - is the coming thing for coverage of cases.  It gives more space for accurate balance, and for good reporting.  A good example of the balance provided by live-blogging as opposed to newspaper coverage, can be seen by comparing the Libby trial live blog against newspaper-only coverage of any other prominent case, like, say, the very ugly sex harassment case against Isaiah Thomas, Madison Square Garden and the NY Knicks.  Out of the hundreds of questions asked and answered yesterday, the only one which got verbatim newspaper coverage went like this:

    On cross-examination, Garden lawyer Ronald Green tried to paint Browne Sanders as angry that her bid for a $585,000 contract to market the Knicks and Rangers had been turned down. He accused her of trying to smear Thomas during a meeting with Garden human resources.

    "Did you say that Isiah was all ego?" Green asked.

    "No, I think we all know that," she replied, causing the courtroom to erupt with laughter.

    We need more access to information, not less.

    Plea agreements (none / 0) (#2)
    by Deconstructionist on Thu Sep 13, 2007 at 02:22:10 PM EST
      have become increasingly "fact disclosing" due to Jones/Apprendi/Booker...., but many plea agreements still disclose little in the way of "sensitive" information.

      I see no need for a blanket rule restricting access and think that case by case determination by the court is the best solution. If one of the parties (or both) feel a document should either be sealed or placed in limited electronic access then a motion should be filed and the court should determine if the specific facts and circumstances cited as grounds outweigh the public's right to know.

    Redacting sensitive information be (none / 0) (#3)
    by oculus on Thu Sep 13, 2007 at 02:24:11 PM EST
    the lesser curtailment of the public's right to the information.  

    Sunlight (none / 0) (#6)
    by Beldar on Thu Sep 13, 2007 at 05:30:48 PM EST
    The old chestnut is still true:  Sunlight is the best disinfectant.  Keep 'em open and online by default.