The Public Eye

Is secrecy taking over federal courts?

James Malcolm, third from left, in courtroom artist’s representation of June court hearing. Malcolm is seated with Assistant U.S. Attorney Justin Lee, at left; Assistant Federal Defender Benjamin Galloway; and U.S. Magistrate Judge Edmund F. Brennan.
James Malcolm, third from left, in courtroom artist’s representation of June court hearing. Malcolm is seated with Assistant U.S. Attorney Justin Lee, at left; Assistant Federal Defender Benjamin Galloway; and U.S. Magistrate Judge Edmund F. Brennan. Vicki Behringer

Sometime before dawn on Halloween Day in 2003, Richard Duran slipped into Pizza Pucks, a restaurant in North Natomas that was scheduled to have its grand opening later that day.

He spread flammable barbecue-starting gel around the inside of the shop, then set it ablaze and drove off in what prosecutors would later say was an arson set in motion by the restaurant’s financially strapped owner, Sundeep Dharni.

In the context of cases that wind their way through the federal courthouse in downtown Sacramento, this one was relatively unremarkable. Both men eventually pleaded guilty, and the total losses were only about $22,000, largely because Duran set the fire under a sprinkler head that doused the flames and kept the entire building from burning down.

Last month, however, the case took a turn that is increasingly common in the U.S. District Court in the Eastern District of California, which is based in Sacramento.

Dharni’s plea agreement with prosecutors was sealed on Oct. 13, the same day he pleaded guilty, without explanation.

On Oct. 29, the plea agreement for James Malcolm, who pleaded guilty that day to weapons charges and possession of a biological agent, was sealed without notice or explanation.

A week later, Gregory Scott Baker stood up in court and pleaded guilty to his role in stealing $18 million from the Indian tribe that owns Thunder Valley Casino in Lincoln.

Then, his plea agreement was sealed from view.

Federal officials say there are no numbers available to track how many plea agreements with defendants are deemed “confidential” and withheld from the public, but officials acknowledge the practice is growing, in large part because of a renewed push by the Obama administration’s Justice Department and the judiciary itself.

The main reason, the government says, is to protect defendants who may face retribution in prison if other inmates know they cooperated with prosecutors and investigators.

Legal experts say the practice is creating a troubling, more secretive system in the courts, which by their very nature are presumed to be bastions of openness.

“I am familiar with this trend and find it deeply disturbing,” Erwin Chemerinsky, a nationally known legal scholar and dean of the University of California, Irvine, School of Law, wrote in an email response to a query from The Sacramento Bee. “This makes it very difficult to know how criminal cases are resolved or to scrutinize the plea deals reached.

“Are too lenient sentences being agreed to? Are defendants treated differently in plea deals based on race? I think it is inconsistent with the First Amendment right of the press and the public to observe the workings of the criminal justice system.”

Professor Floyd F. Feeney, a nationally recognized expert on criminal procedure at the University of California, Davis, School of Law, also said it’s important to keep plea deals open. “American law has from the start recognized that the only way to have criminal trials that are fair to both defendants and the community is to have courtrooms open to the public,” he said in an email message.

“Maintaining fairness in a time when most criminal cases are resolved by guilty pleas presents many challenges,” Feeney said. “The basic principle, however, remains the same. Keep the process open. Let the public know the terms of the plea. Stalinist Russia, Nazi Germany, and other systems that relied on secret methods have a long and very bad history.”

With the exception of U.S. District Judge Garland E. Burrell Jr., the federal judges in Sacramento and the attorneys who practice both criminal and civil law in their courtrooms routinely ignore the judicial rules and case law governing the mechanics of sealing a document.

Contrary to the rules and the law, for example, there is rarely public notice that a party intends to seek a court order sealing a document, thus foreclosing any opportunity for an attorney representing the media and the public to file an opposition brief and argue in court against the sealing.

Prosecutors say defendant safety is driving the dramatic increase in sealed plea agreements, especially in an age where websites allow individuals to post names and photos of people they claim are government informants.

At, for example, a site that bills itself as the “largest online database of informants and agents,” a search function allows users to pull up names, photos, ages and purported criminal backgrounds of individuals.

The site lists agencies to which those listed are supposedly feeding information and includes a section on “facts that would question this informant’s credibility.”

“Habitual liar, long track record of stealing,” reads one entry.

“In some cases, when a defendant cooperates with the government against other criminal targets, the prosecution and defense may request that the court seal the defendant’s plea and cooperation agreement with the government,” Phillip Talbert, first assistant U.S. attorney in the Eastern District, wrote in a statement to The Bee. “Sometimes this is done to protect an ongoing investigation.

“Other times the agreement is sealed to protect the defendant’s safety once he is incarcerated. Even when the court orders the agreement to be filed under seal, the hearing at which the defendant pleads guilty and his later sentencing hearing remain open to the public.”

Talbert says that “there are sound safety reasons to seal court filings that indicate a defendant has cooperated with the government.”

“At least one notorious online website posts the identities of persons believed to be cooperators,” Talbert wrote. “Additionally, information about cooperators has become increasingly accessible since the advent of the Public Access to Court Electronic Records (PACER) system, which includes publicly filed documents.

“Anecdotal evidence indicates that a defendant arriving at a prison facility may be asked by other inmates for his plea agreement to determine whether he cooperated with the government, and if the inmate does not have his paperwork, others or their associates look it up on PACER.”

Because of this potential threat, the Committee on Court Administration and Case Management of the Judicial Conference of the United States last year asked all federal judges to “avoid identifying cooperators in opinions and orders whenever practicable and to consider taking other actions, consistent with the law, to obscure cooperators’ identities to ensure their safety,” Talbert noted.

Prosecutors admit that lawyers for defendants and inmates often identify informants to their clients, and in some instances, prosecutors acknowledge they want it known that a defendant is cooperating in order to increase the pressure on others to admit their guilt.

But the prosecutors contend it is best left to them to decide which plea agreements to seal.

That practice is now playing out in the Eastern District, where officials say prosecutors and the Federal Defender’s Office have had conversations on how to make it less obvious when a defendant is cooperating with the prosecution of others facing criminal charges, or with federal agents investigating alleged crimes yet to be charged.

“While these discussions are ongoing, they are not intended to increase the number of plea agreements that are filed under seal or to close any court proceedings to the public,” Talbert wrote. “Instead, their focus is on maintaining an open court system and maximizing the amount of case information that is publicly filed, while sealing information effectively, and only when needed.”

But there is evidence that some documents are being sealed in cases that do not appear to involve threats to individual defendants.

In the Pizza Pucks arson case, for instance, Dharni’s plea agreement was unsealed about three weeks after it was sealed because of an objection lodged by The Sacramento Bee.

The unsealed document does not appear to contain any damaging information about the defendant, does not contain a cooperation agreement, and does not expose him to problems inside prison because he was sentenced to time he had already served.

Similarly, the Baker plea agreement filed under seal in the Thunder Valley Indian tribe case apparently did not pose a problem for the defendant. Baker’s defense attorney, Tom Johnson, said he had no problem with it being made public, and shortly after an attorney for The Bee requested it be unsealed, the government did so.

Denny Walsh: 916-321-1189