Joyce Terhaar

Joyce Terhaar: Do we want secrecy in Sacramento’s federal courts?

Late last month, federal prosecutors in Sacramento reached a plea deal with a Carmichael man as part of a bigger crackdown on illegal sales of explosives, weapons and poison on the Internet.

Sam Stanton and Denny Walsh wrote the story about this federal case. But they couldn’t report the breadth of the deal James Christopher Malcolm reached with prosecutors because U.S. District Judge Troy L. Nunley agreed to seal the document.

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In another case this month, Gregory Scott Baker pleaded guilty in federal court to his role in the theft of $18 million from the United Auburn Indian Tribe, which owns Thunder Valley Casino Resort in Lincoln.

Baker reached a deal with prosecutors but, again, that plea agreement was sealed by Nunley on a motion from Assistant U.S. Attorney Michael Beckwith. It was only after a Bee attorney requested that the plea be unsealed that the document was opened to public view.

Walsh saw that another plea agreement had been sealed last month in a complicated case in which the 9th U.S. Circuit Court of Appeals directed the federal court to dismiss the conviction of Sundeep Dharni in 2007 for conspiring to burn down his North Natomas restaurant.

In exchange for the dismissal by U.S. District Judge William B. Shubb, Dharni pleaded guilty to one count of arson and was sentenced to time served. After Walsh informally challenged the sealing with Shubb, the government and defense filed a joint motion to unseal the plea agreement.

Walsh, who has covered the federal courts in Sacramento for more than two decades, has become increasingly concerned the last couple of years about the rate at which plea agreements are routinely sealed. Walsh and Stanton detailed the breadth of the secrecy in a story published earlier this weekend.

The courts hold extraordinary power over the lives of those charged with crimes. That’s why we have the constitutional right to a public trial, and it’s the reason the public and media have the right to access court records. It is essential that the courts, the third branch of our democratic government, be transparent and open to public oversight.

Cases that have made their way to the U.S. Supreme Court protect this access. That’s why Walsh has objected to the sealing in specific cases, and why The Bee last week sent a letter to Judge Morrison C. England Jr., chief U.S. District judge in Sacramento, expressing our concern that documents are being sealed in violation of the First Amendment, case law and the court’s own local procedural rules.

How many documents? We don’t know. The U.S. Attorney’s Office in Sacramento said it does not track the number of sealed plea agreements and so could not provide an annual breakout for The Bee.

There is a wide range in the sense that some judges seem quite reluctant to seal things and other judges seem happy to do it even when we don’t ask for it.

Benjamin B. Wagner, U.S. attorney for the Eastern District of California

But Walsh has witnessed a pattern of judges sealing plea deals without requiring, in writing, a public filing of a Notice of Intent to File a Motion to Seal, and without placing on the public docket the judge’s written ruling. Importantly, they also are not requiring a public hearing that allows the media or other members of the public to object.

Benjamin B. Wagner, the U.S. attorney for the Eastern District of California, said supervisors in his office recently talked to assistant U.S. attorneys to make sure they are “careful” about when they request that documents be sealed. He disputed any notion that they are requesting more seals than in past years.

Wagner also emphasized to me that “we never close the courtroom,” so the public still can see what’s going on.

But the process leaves much to be desired if you are an advocate for the First Amendment, as I am. The way Wagner explained it, some judges prefer to get requests to seal a document in chambers prior to a hearing, and a decision is made in advance. Walsh has witnessed that in the courtroom.

Among the federal judges in Sacramento, Wagner said, “there is a wide range in the sense that some judges seem quite reluctant to seal things and other judges seem happy to do it even when we don’t ask for it.”

“Once it’s sealed, it’s not like it’s too late or moot,” Wagner said. “There’s nothing that’s irreversible” should someone challenge the decision.

The Committee on Court Administration and Case Management of the Judicial Conference of the United States asked federal judges to consider obscuring identities to protect the safety of defendants who cooperate with authorities.

Yet it’s a casual action that removes public access – something we shouldn’t take lightly. As Bee attorney Stephen Burns wrote in the letter to England, established law says court documents are open to the public and may only be sealed if closure serves a compelling interest, there is a substantial probability that without closure this compelling interest would be harmed, and no alternatives to closure exist to adequately protect that interest.

The U.S. Attorney’s Office contends the documents need to be sealed to protect lives.

In a statement provided to Walsh, Phillip Talbert, first assistant U.S. attorney, wrote that anecdotal evidence shows some defendants serving time in prison as part of a plea deal have been threatened and harmed because other inmates were able to learn they had cooperated with authorities.

Talbert wrote that last year the Committee on Court Administration and Case Management of the Judicial Conference of the United States urged federal judges to avoid identifying people who cooperate with authorities in their written opinions and orders. It also asked that they consider obscuring identities to ensure the safety of those who cooperate.

In past years, courts have ruled that whoever wants to seal a document must provide evidence of potential harm. It’s not enough to know anecdotally that some defendants who cooperated have been threatened or hurt.

However well intentioned, that’s what is happening. Anecdotal concerns, not real evidence presented publicly in court, are driving decisions to seal documents that should remain open to public view.

Wagner said court officials, prosecutors and federal defenders all are trying to figure out a better way to handle real concerns about safety. As they do, the public they serve needs them to lean toward a more open and transparent court process.