The online age has brought new dangers to government informants and their families. Now suspicious co-defendants, or friends of those who believe they have been sent to prison with evidence supplied by a “cooperator,” can, with a bit of Googling, access information in case files that may reveal what deals have been made with prosecutors and blessed by trial judges. This information, which a decade ago could only be obtained by laborious hands-on research, has caused growing concern for the safety of informants and the ability of prosecutors to strike plea deals for cooperation.
Between the spring of 2012 and the spring of 2015, federal judges reported at least 571 instances of “harms or threats” to government cooperators, according to a new survey commissioned by the Federal Judicial Center, the research and education agency of the federal judicial system. There surely are more, unreported instances of violence as well. During that time, the FJC reports, at least 31 informants were murdered, in and out of prison, by people who obtained information about their plea deals from unsealed court documents or transcripts of court proceedings.
More common are violent acts designed to intimidate informants and their families. “The home he and his family resided in was shot up the day before he was scheduled to testify,” one FJC respondent noted. “[They] burned his house down,” responded another judge. Also common are online or other verbal threats to informants. “Name posted on Top Snitches Facebook page,” one judge told the FJC. “Told family members to put his name on rats.com,” another judge reported. Sometimes, the response is more traditional: “Flyers posted in his neighborhood that he cooperated,” one judge reported.
The problem is so pervasive, evidently, that a committee of the Judicial Conference of the United States, the administrative arm of the federal judiciary, is calling on all federal trial judges to impose new secrecy rules that would uniformly shield information about cooperators from public view. In a June 30th letter sent to all federal trial judges and clerks, Judge William Terrell Hodges, a federal trial judge in Florida who chairs the Conference’s Committee on Court Administration and Case Management, told his colleagues that:
the harms to individuals and the administration of criminal justice in this instance are so significant and ubiquitous that immediate and effective action should be taken to halt the malevolent use of court documents in perpetuating these harms consistent with each court’s duty to exercise ‘supervisory power over its own records and files.’
The problem is particularly acute in prison, Judge Hodges wrote, because “new inmates are routinely required by other inmates to produce dockets or case documents in order to prove whether or not they cooperated. If new inmates refuse to produce the documents, they are punished.” “If they are identified as cooperators after arriving in prison, in many cases the only effective protection available is to move the threatened inmate into a segregated housing unit or solitary confinement,” Judge Hodges wrote.
Currently, each federal judge has her or his own set of “local rules” designed to keep certain sensitive information out of public view. Where informants may be put at risk, judges will consider requests to seal the records, allowing access only to prosecutors, defense attorneys and court clerks. Some judges have expansive secrecy provisions that hide a great deal from the public. Some slightly less so. Some have no standing rules at all but resolve informant issues more informally.
The new recommendations suggest that all trial judges keep a “sealed supplement” in the record of each criminal case that would contain “documents or transcripts that typically contain cooperation information.” Whenever a case ended with a plea agreement, a separate, sealed supplement would describe the terms of cooperation, or declare that no cooperation took place. either chronicling the cooperation provided or proclaiming that no such cooperation took place. The Judicial Conference committee asserts that “any member of the public who reviews the docket would be unable to determine, based on the plea agreement, whether a given defendant has cooperated.”
Many defense attorneys and free speech advocates say that the proposed new rules are troublesome (and perhaps unlawful) for at least two reasons. First, they say, creating a sealed annex in every case could deprive the public, and the media, of basic information that goes beyond the issue of cooperation. Second, several defense attorney told me this week the proposed new rules could have the perverse effect of making life even more dangerous for informants; the existence of sealed supplement would mean every inmate was presumed to be a “snitch” unless proven otherwise. And such proof would be hard to come by with the information sealed.
“Maybe a lawyer would read a docket entry that says SEALED SUPPLEMENT, REQUIRED IN EVERY CASE and draw no inference, but the bullies who pick on others in federal prisons don’t see it that way,” David Beneman, Maine’s federal defender, told me. “They assume when it says sealed, this person is an informant.” The proposal, if implemented, “will multiply the number of inmates at risk exponentially without protecting anyone,” Beneman says. And he should know. The sealed supplement system now being pitched nationally once was in place in Maine. It didn’t work and has been scrapped, Beneman said, in favor of the more traditional case-by-case evaluation by judges and lawyers of how best to protect those at risk.
Several lawyers I spoke to said a better way of addressing danger to informants is to tackle the pervasive violence in prisons.
About a third of all federal trial courts already have in place some form of the proposed secret handling of informant details, said Charles Hall, a federal judicial spokesman. Some judges already employ local rules that are far broader than the ones the Judicial Conference recommends, which means the adoption of uniform standards in some cases would make more information more publicly available in those jurisdictions.
Katie Townsend, litigation director of the Reporters Committee for Freedom of the Press, told me this week that if implemented the proposed new rule would eliminate the “broad disparity” that now exists from federal courtroom to federal courtroom around the country. But she said:
If this rule is adopted it will deprive the public of key information needed to understand and evaluate how the criminal justice system is operating, both in individual cases and as a whole. Because cooperation (or non-cooperation) can often have a significant impact on whether a defendant pleads guilty, or whether a defendant receives a lenient or harsh sentence, depriving the public of this information in all cases will prevent the public from ever knowing the reasons that a criminal defendant received the sentence he or she received. That is completely antithetical to the idea of a transparent criminal justice system.
The great majority of criminal cases are resolved by plea deals, and many of those are based at least in part on a willingness to cooperate. “A rule that automatically seals everything in all court records related to any defendant's cooperation or noncooperation with law enforcement” flips on its head the presumption of access the law requires, Townsend said.
The proposed new rule will be reviewed by the Judicial Conference, and likely opened up for public evaluation, before federal officials make any final decisions.