U.S. Attorney's Office still keeping cooperation secret from public

Although Chief Judge Moreno and the rest of the SDFLA court have made plea agreements public again by allowing them to be accessed by PACER, the government is still attempting to keep cooperation agreements secret and off-line.

A number of AUSAs and AFPDs have emailed me the new government policy when a defendant is cooperating: Just delete those sections* from the plea agreement and include them in a letter agreement, NOT FILED WITH THE COURT. This new policy certainly circumvents the spirit of making deals open to the public. From what I understand, the prosecutors ask the court to go over the cooperation letter agreement with the defendant, but then ask for the letter not to be filed in the court record. I suspect that most judges will not abide by this request, especially because technically the letter is a matter of public record if reviewed in open court -- so why not file it...

But we'll have to see how this plays out.

*Those cooperation agreements never say anything anyway, so I'm not sure what the big deal is about including it in the open record.

New Plea Agreement Policy Becomes Effective Tomorrow

SFL here, still muckin' around this joint while David tries another big case.

Boy I feel like a dinosaur thinking back to the days when the clerk's office was not automated, and you had to actually walk over to Court to pull a docket or see an administrative order.

Now the clerk can just imprint them directly into the microchip transmitter located behind your retina, saving a lot of time and also something they used to have a long time ago called "trees."

Wait a minute -- that upgrade is set to launch in 2010.

I guess in 09 they're still using old fashioned emails, and I got one earlier today from the clerk that said this:

Administrative Order 2009-2, effective February 20, 2009, provides in part:

ORDERED AND ADJUDGED that as of February 20, 2009, the Southern District of Florida's current policy of providing limited electronic access to plea agreements is rescinded. All plea agreements filed on or after February 20, 2009 will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an Order in advance directing the sealing or otherwise restricting a plea agreement.

Please visit the Southern District of Florida web page at http://www.flsd.uscourts.gov for the full text of Administrative Order 2009-2.

Hmm, I have to think this is a good thing, right?

Julie Kay on plea agreements going back online

Here.

Plea agreements to be available again

We have discussed before (and criticized) the local rule taking plea agreements off-line and hiding them from the public. Here's what we said back then:

This is a silly policy, which is only in place in this District (as far as I know). Hopefully it will be changed soon (the local rules committee is studying it). If there are safety concerns for cooperating witnesses, then those concerns should be addressed in that particular case, but to have a blanket policy making it more difficult to get these documents.... Haven't we learned from the State scandal involving secret docs?

We also noted that Chief Judge Moreno was a judge who believed in courtrooms being open to the public and was generally against things being secret. He said back then in an interview with Julie Kay:

“I’m a very open person,” Moreno said. “My personal feeling is that if something is said in open court, it should be an open record.”

As for plea deals: "Moreno said the court will continue to study another issue that recently has generated controversy — whether plea agreements should be posted online."

Now that they have studied it, the en banc district court has issued administrative order 2009-2, rescinding the old rule making plea agreements secret and ordering:

that as of February 20, 2009, the Southern District of Florida's current policy of providing limited electronic access to plea agreements is rescinded. All plea agreements filed on or after February 20, 2009 will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an Order in advance directing the sealing or otherwise restricting a plea agreement.

Well done Chief Judge Moreno and the rest of the court!

UPDATE -- Kathy Williams and AFPD Beatriz Bronis represented the defense on this issue. Congrats to them as well.

News and Notes

1. There's a bunch of reaction in the comments and in articles this morning to the life sentence recommended by the jury in the Kenneth Wilk case. Here's the Herald article and the Sun-Sentinel article. Both mention that the majority of jurors were against the death penalty. I'm not sure what that means because the jury had to be "death qualified." I think Wilk's jury consultant will be getting a bunch of calls soon.

2. Julie Kay covers an interesting case where a NYSE company asked that its directors' addresses be removed from an animal rights' website. Judge Hurley denied the motion. So, you can get these addresses from websites, but we still can't get plea agreements online. Explain! (And to be clear, I'm not saying that I disagree with Judge Hurley's decision. What I really cannot understand is our District's policy of keeping public documents offline.)

3. Rumpole has been following the strange circumstances surrounding Judge Gerald Klein's recent resignation in state court. The DBR has lots of coverage today, including the resignation letter.

Posting Plea Agreements?

I'm quoted in the DBR article this morning criticizing the new policy in this District of not making plea agreements available online. Every other document in a criminal docket is available (unless it's sealed) except for plea agreements. Instead, you have to go down to the clerk's office to make a copy the old-fashioned way. This is a silly policy, which is only in place in this District (as far as I know). Hopefully it will be changed soon (the local rules committee is studying it).

If there are safety concerns for cooperating witnesses, then those concerns should be addressed in that particular case, but to have a blanket policy making it more difficult to get these documents.... Haven't we learned from the State scandal involving secret docs?