Judges are considering denying public remote access to online criminal docket
By Pat Murphy
BridgeTower Media Newswires
BOSTON, MA -- Startling numbers on retaliation against informants and government witnesses have the federal judiciary pondering whether to limit public access to criminal dockets on PACER.
In a recent survey of federal judges, prosecutors, public defenders and probation officers quantifying retaliation against those who cooperate with the government in criminal cases, respondents reported 571 cases involving people being threatened, wounded or killed. The victims in those case included 381 defendants and 292 witnesses.
The survey by the Federal Judicial Center covered a three-year period concluding in 2015 and found that plea agreements or plea supplements were the documents most frequently used by the bad guys to single out a defendant as someone who cooperated with the government.
The survey also found that those who wished to do harm often drew inferences that someone was a “cooperator” by certain docket activity on PACER, like the fact that a sentencing report for a certain defendant had been sealed.
Boston criminal defense attorney D. Christopher Dearborn doesn’t see the protection of confidential informants as being the most serious problem in terms of PACER access, noting the identities of informants are typically kept confidential absent a rarely successful motion to disclose by the defense. A professor at Suffolk University Law School, Dearborn acknowledges that those with ill intent could conceivably piece together the identity of a confidential informant with tidbits of information obtained through the reading of pleadings available online.
But like other members of the criminal defense bar, Dearborn sees the sentencing report as presenting the potential for the most harm.
“If they’re cooperating, their name shows up in their own case in a cooperation agreement, which contains enough information to link back to another case,” Dearborn says.
Former federal prosecutor John L. Calcagni III well knows how the court’s sealing of a document could be a problem for a defendant who cooperates with the government in order to avoid a mandatory minimum sentence. The Providence criminal defense attorney paints a picture of how PACER access easily could lead to a defendant stuck in jail becoming a target for his erstwhile accomplices.
“If I’m a CEO-level boss of a drug-trafficking network, and a couple of my mid-level managers get picked up in some big sting, I’m going to be concerned about whether these people are going to be turning me in,” Calcagni says. “If I start to see online that things are being filed and sealed [in their cases], that’s usually a telltale sign that they’re cooperating.”
Former federal prosecutor Brian T. Kelly, now of Nixon Peabody in Boston, agrees that the filing of documents under seal has become something of a red flag for paranoid criminals alert to any sign of betrayal.
“When that happens, a lot of these prisoners don’t need much more to act out,” Kelly says.
PACER was identified as a significant problem at a U.S. Judicial Conference criminal rules committee meeting in Washington, D.C., in April. According to a Wall Street Journal report, U.S. District Court Judge Lewis Kaplan told that committee that PACER is fertile ground for those up to no good.
“Anonymous remote public access to PACER is a source of much of the information that gets into prisons about who is cooperating,” said Kaplan, who sits in the Southern District of New York.
The federal judiciary is mulling over how to combat the problem. The WSJ reports that judges are considering PACER rule changes ranging from denying the public remote access to online criminal dockets altogether to creating separate, publicly inaccessible dockets for cases involving defendants who have cooperated with the government in exchange for lighter sentences.
Dearborn says a possible solution may be to offer criminal defense attorneys unfettered access to PACER, while restricting public access to more sensitive segments of criminal dockets.
“Given the volume of criminal cases in federal court, I don’t see why that wouldn’t be feasible,” he says.
