Despite the Sixth Amendment's guarantee of public trials, nearly all records are being kept secret for more than 5,000 defendants who completed their journey through the federal courts over the last three years. Instances of such secrecy more than doubled from 2003 to 2005.
An Associated Press investigation found, and court observers agree, that most of these defendants are cooperating government witnesses, but the secrecy surrounding their records prevents the public from knowing details of their plea bargains with the government.
Most of these defendants are involved in drug gangs, though lately a very small number come from terrorism cases. Some of these cooperating witnesses are among the most unsavory characters in America's courts — multiple murderers and drug dealers — but the public cannot learn whether their testimony against confederates won them drastically reduced prison sentences or even freedom.
In the nation's capital, which has had a serious problem with drug gangs murdering government witnesses, the secrecy has reached another level — the use of secret dockets. For hundreds of such defendants over the past few years in this city, should someone acquire the actual case number for them and enter it in the U.S. District Court's computerized record system, the computer will falsely reply, "no such case" — rather than acknowledging that it is a sealed case.
At the request of the AP, the Administrative Office of U.S. Courts conducted its first tally of secrecy in federal criminal cases. The nationwide data it provided the AP showed 5,116 defendants whose cases were completed in 2003, 2004 and 2005, but the bulk of their records remain secret.
"The constitutional presumption is for openness in the courts, but we have to ask whether we are really honoring that," said Laurie Levenson, a former federal prosecutor and now law professor at Loyola Law School in Los Angeles. "What are the reasons for so many cases remaining under seal?"
"What makes the American criminal justice system different from so many others in the world is our willingness to cast some sunshine on the process, but if you can't see it, you can't really criticize it," Levenson said.
The courts' administrative office and the Justice Department declined to comment on the numbers.
The data show a sharp increase in secret case files over time as the Bush administration's well-documented reliance on secrecy in the executive branch has crept into the federal courts through the war on drugs, anti-terrorism efforts and other criminal matters.
"This follows the pattern of this administration," said John Wesley Hall, an Arkansas defense attorney and second vice president of the National Association of Criminal Defense Lawyers. "I am astonished and shocked that this many criminal proceedings in federal court escape public scrutiny or become buried."
The percentage of defendants who have reached verdicts and been sentenced but still have most of their records sealed has more than doubled in the last three years, the court office's tally shows.
Of nearly 85,000 defendants whose cases were closed in 2003, the records of 952 or 1.1 percent remain mostly sealed. Of more than 82,000 defendants with cases closed in 2004, records for 1,774 or 2.2 percent remain mostly secret. And of more than 87,000 defendants closed out in 2005, court records for 2,390 or 2.7 percent remain mostly closed to the public.
The court office also found a sharp increase in defendants whose case records were partly sealed for a limited time. Among newly charged defendants, the numbers in this category grew from 9,999 or 10.9 percent of all defendants charged in 2003 to 11,508 or 12.6 percent of those charged in 2005.
But the AP investigation found, and court observers agree, that the overwhelming number of these cases sealed for a limited time involve a use of secrecy that draws no criticism: the sealing of an indictment only until the defendant is arrested.
AP's investigation found a large concentration of both kinds of secrecy at the U.S. District Court here: limited sealing of records and extensive sealing that continues even after the courts are done with a defendant.
"When the sentences are sealed, that's a con on the community," said Lexi Christ, a Washington defense lawyer for a man acquitted in a crack cocaine case.
In that case, all the defendants' names became public when the indictment was unsealed. But all other records for six defendants who pleaded guilty remained sealed more than two years after the public trial in which two of the drug dealers were convicted.
One of the cooperating witnesses admitted to seven murders and testified in open court against co-defendants who had committed fewer, Christ said. But like the others who pleaded guilty and cooperated, that witness' plea deal and sentence were sealed.
"Cooperating witnesses are pleading guilty to six or seven murders, and the jury doesn't know they'll be sitting on the Metro (subway) next to them a year later. It's a really, really ugly system," Christ said.
Prosecutors argue that plea agreements must be sealed to protect witnesses and their families from violent retaliation. But Christ said that makes no sense after the trial when the defendants know who testified.
The Reporters Committee for Freedom of the Press found the U.S. District Court here has 469 criminal cases, from 2001-2005, that are listed by this court's electronic docket as "no such case." An AP survey over a shorter period found similar numbers here and got oral acknowledgment from the clerk's office that the missing electronic docket numbers corresponded to sealed cases. However, these figures include an unknown number of sealed indictments that will be made public if arrests are made.
"That's horrifying," said Loyola's Levenson. "When I was a prosecutor from 1981 to 1989, I never heard of secret dockets."
No matter how few turn out to be almost totally sealed after the defendant's case was completed, "it's still significant," said Lucy Dalglish, executive director of the Reporters Committee and a pioneer in campaigning against court secrecy.
"The Supreme Court has said that criminal proceedings are public," Dalglish added. "In this country, we don't prosecute and lock up convicts and have no public track record of how we got there. That violates the defendants' rights not to mention the public's right to know what it's court system is doing."
Although Justice Department does not keep comprehensive nationwide statistics on secrecy in federal prosecutions, it does track how often prosecutors ask permission from headquarters to hold a secret court proceeding, like an arraignment, hearing, trial or sentencing.
The department estimates it got 100 such requests from October 2000 though October 2004, Justice Department spokesman Bryan Sierra said. Another 100 arrived during the 12 months that ended October 2005, he said.
Sierra said the large recent increase occurred because the department sent a memo to all federal prosecutors in 2004 reminding them they need Washington's approval before requesting or agreeing to secret courtroom proceedings. Filing of secret papers in cases doesn't require such permission.