Federal Courts Back off Super-Sealing

By Eastburg, Rory | News Media and the Law, Spring 2009 | Go to article overview
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Federal Courts Back off Super-Sealing


Eastburg, Rory, News Media and the Law


Judicial Conference discourages wiping away all signs of a sealed case.

Reporters covering federal courts are often stymied by the fact that some cases are conducted entirely in secret, never appearing on a public docket. The Judicial Conference of the United States voted earlier this year to make such "super-sealed" cases more visible, by informing the public of their existence on district court case lists.

Established by Congress in 1922, the Judicial Conference describes itself as "the principal policy making body concerned with the administration of the U.S. Courts." While not binding on individual courts under most circumstances, its policies carry heavy weight and are often incorporated into local court rules.

On March 17, the Conference decided that online lists of civil and criminal cases in district courts, which previously excluded sealed cases entirely, should now "include a case number and generic name, such as Sealed vs. Sealed, for each sealed case." The policy also lets individual district courts decide whether to list additional information on sealed cases, including the presiding judge and how long the case has been around.

A history of secrecy

The new policy was the latest effort to deal with a problem the Reporters Committee and the Associated Press identified in a pair of 2006 investigations.

The Reporters Committee inquiry found that over five years, 469 cases - mostly criminal prosecutions - were kept completely off the docket in the U.S. District Court for the District of Columbia alone. Users searching for the case number were told that "no such case" existed. Many of the cases that were later unsealed turned out to involve multi-defendant drug or conspiracy prosecutions, where prosecutors and defense lawyers argued that allowing public access to the case would jeopardize the safety of parties. (See "Disappearing Dockets," The News Media & The Law, Winter 2006).

The Associated Press also looked into secret prosecutions in 2006, and showed that the practice of super-sealing cases was not peculiar to the District of Columbia. The AP report was based on nationwide statistics obtained from the Administrative Office of the Courts and found that, between 2003 and 2005, more than 5,000 defendants nationwide were tried in total secrecy in federal courts. "Most of these defendants are involved in drug gangs," the wire service reported, "though lately a very small number come from terrorism cases."

D.C. leads reform efforts

The Supreme Court has stricdy limited the extent to which trials can take place behind closed doors. In the 1980 case Richmond Newspapers v. Virginia, the Court recognized a constitutional right of access to proceedings in criminal cases. This right, it said, was based on the "unbroken" history of public criminal proceedings as well as the fact that public access helps courts run more fairly and effectively.

Because of this First Amendment right, the Supreme Court has said no state or federal judge may close proceedings in a criminal case without meeting a demanding test - the court must issue specific, on-the-record findings that "closure is essential to preserve higher values" than the public's right of access and is "narrowly tailored to serve that interest." In other words, the court must find both that there is a compelling need for secrecy, and that there is no other way of dealing with the problem, in order to close a criminal courtroom.

Lower courts have applied the same standards to records and proceedings in both criminal and civil cases. And a Department of Justice regulation, 28 C.F.R. § 50.9, likewise requires government lawyers to "consent to closed proceedings only when closure is plainly essential to the interests of justice." Only the Deputy or Associate Attorney General can consent to closure after applying a test similar to that used in Richmond Newspapers v. Virginia, and government lawyers must review closed proceedings every 60 days "to determine if the reasons for closure are still applicable.

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