Wednesday, January 28, 2009

Julie Kay on plea agreements going back online



Anonymous said...

This new administrative order can, and will, be easily circumvented as I've previously posted on the blog. I've never been a fan of symbolic gestures, including this one. I'm too much of a pragmatist.Julin's quote in Kay's article sounds nice but it begs the question as to what is the public interest, especially where the plea agreement is available in the clerk's office. Is it in the public's interest to have cooperating witnesses intimidated thereby affecting the truth seeking function of the criminaljustice system? As for the canned argument that cooperators are Satan and undermine the truth seeking function themselves by allegedly lying,that concern is addressed by cross examination and Giglio. In any event, prosecutors will get around this order easily and take steps to protect cooperating defendants (as they should).

Anonymous said...

I think that similar arguments were made in the Dale Earnhardt autopsy photo case in favor of disclosure and they failed. The U.S. Supreme Court also declined to grant cert.

Anonymous said...

Assholes 1 and 2. Typical of your ilk, you refuse to recognize the greatest source of intimidation for cooperators - the government. Both are damaging to our system of justice.

Ed Williams said...

Make em all public. I have fought with MDFL about this.

I hope the other bad guys see what great deals I get my clients and then hire me. Plus, I am way too lazy to get other plea agreements myself by actually going to the clerk's office where they are often curt.

If they had young chicks helping you on the computer and served booze, I would hang out at the clerk's office every afternoon.

Seriously, there is no issue about anyone's safety. And if there were, so what. That's part of life as we know it.

Anonymous said...

7:48—Wow, your eloquent response to 10:29 and 11:01 really engages their arguments on the merits . . . NOT (BTW--David, what kind of lightweights are you attracting to this blog?). 7:48, let me address 10:29 and 11:01 for you. The better argument for disclosure is not some amorphous/generalized "public interest" argument (though that could be viewed as an ancillary benefit). Rather, full disclosure of the plea agreements online allows defense lawyers and their clients to review the pleas that are being offered to similarly situated defendants. In turn, defense lawyers can then look at the sentences that these other defendants received. With this information at their disposal, defense lawyers are in a much better position at sentencing to argue "disparity in sentencing" under 3553(a) factors (subject of course to the particularized information in the PSI). I think that is the better argument. On a separate issue: does the reasoning of the Court's admin order compel the result that PSIs should also be posted on the PACER. After all, they are an integral part of the sentencing hearing and part of the record. What are the differences between PSIs and Plea Agreements that compel a different conclusion?

Anonymous said...


Not to be un-eloquent...but you are a capital "S" Schmuck.

Lets see, conspiracy case where Def pleads to 5 kilo plus. Prosecutor may inform probation of the other 5000 kilos or not, but probably won't be spelled out as such in agreement.

Yeah, provides great comparison for your co-defendant, co-conspirator.

PSIs are privileged from disclosure by statute.

Nice going highbrow guy, come back when you know (1) the way the system works in reality and (2) the law.

Anonymous said...

12:18 Great slam dunk...You got game!

Anonymous said...

1:46--Your hypo assumes that the prosecutor and defense lawyer would not set forth the particular defendant's relevant conduct (in the case of your hypo, the drugs in the conspiracy that he is responsible for) in the plea agreement itself. In a lot of plea agreements involving drug conspiracies, such an agreement is reached. The same applies in financial fraud cases where an agreement/understanding on fraud loss is reached and set forth in the plea agreement (again, not always but in a decent number of cases).

Further, you're ignoring the simple fact that in a lot of cases (i.e., non drug cases) the issues raised by your hypo are not present. In short, your 5000kg hypo is not as strong as you present it to be.

Second, one can argue that the fact that PSIs are forbidden from disclosure under statute undermines the admin order in plea agreements, as it suggests that the "public interest" in access to ALL information in a criminal case is subject to limitations. Further, I only posed the question about PSIs to engage the point that you raised: should they be sealed under statute? Thus, your response to the question falls back on the status quo and really just begs the question. Interestingly, you don't address the question I posed for discussion: What are the differences between PSIs and Plea Agreements that compel a different conclusion?

Anonymous said...

2:52. Sorry, you are no longer a Schmuck.

I never figured out why PSIs are private. It is kind of a funny deal, that there seems to be no reason for.

Anonymous said...

It should be very obvious why PSI’s are not open to the public. It contains extremely sensitive information which I'm confident the felon does not want published. For example, financial, family, prior drug use, convictions and how much he is in debt to his criminal defense attorney. Surly, we would not want to public or our Colleagues to know who much we earn in order to take a plea.

Anonymous said...

2:54, this is 2:52. I've been thinking about the difference. The only thing I can think of is that the PSI has a lot of very personal information about a defendant such as criminal history, drug use history, names of family members, addresses, etc. [NOTE: it seems to me that you can disclose the criminal history category without disclosing underlying convictions.] The PSI, however, also contains a lot of non-personal and legally relevant information such as: 851 enhancements, specific offense characteristics, facts of the case, role, etc. It seems to me that one shouldn't be allowed to bootstrap non-disclosure of this type of information merely because the same document contains some private information.

The solution--if one is being intellecutally honest and trying to reconcile PSIs with the reasoning underlying the admin order--is to file a REDACTED version of the PSI on PACER. I'm not saying that I agree with that necessarily, but I think that consistency compels that conclusion. Again, I'm aware of the statute, but all I'm saying is that it does not make sense with the admin order. I wonder if the Court thought about this when it issued the order and tried to address the PSI statute with its reasoning on disclosure of plea agreements.

Ed Williams said...

Doesn't the judge usually say enough on the record that everyone can glean what is in the PSI? Some attorneys even quote from it when they file objections. Why on earth do they file objections? I just write them to the PO with a copy for the judge. Let's have complete sentencing transcripts on PACER, except stuff heard in chambers or with the courtroom door locked.

I think what is filed that is outrageous are the bullshit community letters. I see some on phony letterhead and containing false assertions of fact pleading for a defendant's leniency from politicians, clergy, lawyers, and suspiciously nonexistent people or those who cannot possibly know defendant, etc.. My friends, that constitutes obstruction, and might be punishable under 401.

Great discussion by the way. Now this thread is worthy of Markus blog.