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September 11, 2007


(picking a nit: on the front page, everything after the end of the quote is in the smaller font size - the first para still is when you come inside. The source looks like there's an extra pair of 'span size=' tags.)

Of course they want to hide this stuff. They're afraid we might find out that the entire lot of them is engaged in criminal activities, and then they'd lose their jobs and their benefits.

Think I got it, PJ, but thanks for the nitpicking, I need the help.

Yeah, it's fixed now. My eyes weren't too happy with 0.8em - they're over the hill and nearsighted (not much range left without prescription help).

Are the plea agrmts being 'buried' from electronic viewing and viewing in person? Or just via the toobz?

Just via the Toobz.

Thanks. If it weren't for PACER my workload would take 3 or 4x what it does now. We save tons of time and client money b/c of it. I'm emailing now.

OUtahere--you'll still have PACER in any case, just not in plea agreements.

If something truly needs to be sealed, it gets sealed from everyone. Sealing off only the internet access makes it sound as if someone has an agenda other than the smooth functioning of the judicial system.

Hidden agendas? Who could have anticipated . . .

Marcy, thanks for the link.

The staccato crunching of Republican walnets, as they are stomped and crushed by the jack-booted foot of fickle fate, has become almost rythmic in its rapidity.

Remember the Republican-majority days of unmitigated obfuscation, when we all waited with bated breath between big Republican scandals for the truth to finally impose itself? (Abramoff comes to mind)

Remember how difficult it had become to wrench from the truth from the lips of those unrepentent liars?

Now, those moments of truth are coming with such regularity, it is as if the worm has turned with a vengeance.

Who knew that proverbial worm could turn so quickly? Yet the pattern is familoiar, like so many failed empires, it fell from within as much as from without.

Their pages were too loose and their stance too wide to hide their sheer hypocrisy.

And while we are all vindicated, those of us who have denied these rogues any quarter from the start might not need to exert nearly as much influence to accomplish the final reversal move.

It appears the wheel of Karma is catching up to them with an ironic retribution we could only imagine in July of 2006.

And in its wake, Justice will peeking out from beneath her blindfold, and I betcha she's gonna be PISSED!

Viva la Blogs!

Am I missing something here? Suppose the government ends access to certain plea agreements via PACER. The agreements would still be available to local individuals who could then scan them and post them, right? So what does this have to do with privacy or protecting law enforcement investigations?

This policy seems to be directed at inconveniencing those who are interested in how our justice system is working. Unless, (as they tried in the Kontogiannis case) they plan on having secret hearings and filing the pleas under the names of unknown prosecutors. That way nobody even knows to walk in and ask for the documents.

EW - This is somewhat baffling. I am curious where the impetus for this came from. You would assume from a judge or group of judges, because they theoretically are the only members of this committee. The trend I have sure seen over the last few years is toward more transparency, not less from judges. This would certainly be a step back from that. The Chief Justice of the United States is the presiding officer of the Judicial Conference. That would be Roberts. I wonder if he initiated this move at the request of some entity with things to hide, you know like the Bush DOJ and their favorite travelling clown Tommy "Special K" Kontogiannis. There are a lot of other investigations hanging around out there (many Abramoff related) that even the craven BushCo cannot squelch until they leave office; but if they can slow walk them in relative secrecy until right before leaving office......

chrisc - That is a good point; however, I would guess that you eleiminate literally 95-98% of the prying eyes if you eliminate PACER access. We are the problem to them.

This is tangentially related to open access.

Are the progressive blogs looking into buying airspace? Bands of the 700 mHz wireless spectrum going up for auction. I don't Fox and friends need anymore bullhorns.

I think it is appropriate to voice concern over the approach to whittle away the openness, though I am a triffle on the dilettante side when it comes to Pacer, refusing to spend one EDI dime on a KB of downloaded posturing be it plea or bargain agreement. My view is the bargains, although ostensible fonts of court overseen insider leakery, nevertheless tend to result in incriminating evidence selectively deployed to protect some identities; but they reveal a lot about strategic maneuvering, as they did for instance in the special prosecutor's development of the witness strategies in the Libby matter; I wondered even there, in retrospect only, how many cooperation deals Fitzgerald made or if those were genuine plea bargains; maybe FBI was first to offer plea bargains in some of the early evidence gathering phase. But the newsmedia organizations which have scanty scruples likely would join the call for less information available for the realtime insight of the many cybersphere writers who sometimes go so far in advance of the courtroom advocates that the web arrives many places long before the protagonists' counsel, and at least at first glimpse on a pro bono basis; though there are amenities and residuals for the blogworld, it takes a lot of research and conferencing to arrive there. I think the internet is helping build leadership as well as community in that regard. Media are in a pinch to maximize profits just now, and like telcos some opt to attempt to slow the modernization process in order to maximize former profit centers. A conservative lawyer teacher at a Republican law school, ivy league, had a comparable idea earlier this year: prohibit law profs from obtaining tenure; I supposed the idea was to restrain the freedom of lawyer professors blogging or even to constrict the limits of classroom speech and law journal investigations. The Republicans must figure they have developed a sufficiently numerous cadre of law profs and sitting judges to attempt to limit the rewards of open courts and free thinking law professors. Proponents of two of the aforementioned ideas include Brian Tamanaha and MLederman; easy to guess which supported which theory. I read an interesting article last week about the endgame presidency, which stated Bush already has an ample team of regulatory experts at work devising ways to make the suppression of information and reversal of environmental safeguards remain long after he has left office. The tale reminded me of the attempt to create even more secrecy in the courts. Avoiding Pacer as I do, unless the generous Bashman provides a passthrough free link, or some other kind soul does, following the DeLay gerrymander of TX in 2005 was an arduous chore. Fortunately, there were many hard working people on the internet involved, and information surfaced, although slowly in the Republican atmosphere around that time.

Couple of other random thoughts- There was a time when the cooperation agreements were not part of the plea agreement; there are several reasons that they became more and more integrated, but the process really accelereated with the implementation of the Federal Sentencing Guidelines. I don't think it would be as easy or acceptable in a Federal court; but in some state courts, you can simply have the judge take the proffered and signed plea under advisement until the time of sentencing, which means it is not entered in the public case file or formally accepted on the record. Point of these thoughts is that the sole reason behind this appears to be blogger access. If you want an example they really don't like check out whosarat.com; although my guess is that fine folks like EW, TPM etc. are also considered a problem.

NO charges against Chiquita Execs will be pursued by DOJ

Happy to support you EW and your bloggers by emailing. It would help the IANAL among us if you or Bmaz or any AAL could suggest lines of argument to use in our emails.

BGRS and others: the following information will give you a better idea of what is going on here. There are a couple of groups that are systematically culling information on agents and informants from the electronic service for the Federal courts, PACER. The primary one appears to be known as "whosarat.com". As I suspected above, the primary impetus for this was the DOJ, not the judges that constitute the advisory board. Bottom line is that there are less restrictive methods, most of which already exist, to eliminate this problem on specific cases where it is really a problem. Although there is some merit to the general concern behind this effort, the proposal here is extreme overkill and clearly, at least to me, is aimed at shutting down people like EW as much as it is aimed at shutting down "whosarat.com". I think letters should focus on the public's right to know, need for transparency, and the public interest in being able to see what the government is doing in the public's name, especially with the clear evidence of political manipulation that has come to light from the US Attorney scandals. the Kontoginnis case you have been reading about here is a prime example. At any rate, here is the more complete info:

Request To Limit Access to Certain Documents in Federal Court Criminal
Case Files

The Department of Justice has asked the Judicial Conference to
restrict public Internet access to a specific type of document: Plea
agreements in criminal cases, which may disclose the fact that the

defendant in the case is cooperating or has cooperated with law
enforcement investigations. The ease with which the public is able to
both retrieve federal court case information from electronic case files
and redistribute it electronically through the Internet has raised
concerns about whether the Judiciary's policy of allowing access to all
unsealed plea agreements provides a sufficient measure of safety for
those defendants cooperating with law enforcement. Certain private
parties or organizations have compiled lists setting forth names,
locations, and descriptions of alleged cooperating witnesses and have
posted them on the Internet. Some have expressed concern that wide
dissemination of this information may facilitate or encourage
retaliation and/or witness intimidation.
The Judiciary is requesting comment on its policy of providing
public Internet access to all non-sealed plea agreements in electronic
criminal case files (described further below). This policy has been in
effect since November 2004, but only came into play in any particular
local court level when that court adopted an electronic case files
system, typically at some point between 2005-2007. To assist it in
considering the issue, the Judiciary welcomes comments on this policy,
including, but not limited to, the question of whether the policy
should be changed to prohibit public Internet access to plea agreements
or other documents in the criminal case files that identify a person
cooperating with law enforcement. These plea agreements and documents
would still be available for public inspection at the courthouse.
Additionally, the Judiciary seeks comments on how it could otherwise
meet the need to balance access issues against competing concerns such
as privacy and personal security.

How To Submit Comments

All comments should be received by October 26, 2007 and must
include the name, organization (if any), mailing address, and telephone
number of the commentator. All comments should also include an e-mail
address and a fax number, where available, as well as an indication of
whether the commentator is interested in participating in a public
hearing, if one is held. The public should be advised that it may not
be possible to honor all requests to speak at any such hearing. Any
such hearing may be recorded for broadcast.
The electronic submission of comments is highly encouraged.
Electronic comments may be submitted by e-mail to
privacycomments@ao.uscourts.gov. Comments may be submitted through the

U.S. Postal Service to The Administrative Office of the United States
Courts, Court Administration Policy Staff, Attn: Privacy Comments,
Suite 4-560, One Columbus Circle, NE., Washington, DC 20544.

[FR Doc. 07-4415 Filed 9-7-07; 8:45 am]

Thanks, bmaz and emptywheel.

If the point of cultivating cooperating witnesses is to help (some in) the DoJ to nab bigger government fish, then I also assume those bigger fish are going to do whatever it takes to learn the identities and plea deals of the state witness(es).

Whether going to the courthouse or online via PACER, any investigating third party will be monitored by a concerned DoJ--worried about potential witness intimidation. But as PACER appears to require plenty of personally identifying information to obtain an account, I see no need to restrict the internet access except, as you all have said above, to inconvenience bloggers.

Does the Judicial Conference have to hold this hearing just because DoJ requests it?

pdaly - No. In fact, it does not appear that there has been a decision made to have a hearing; the last substantive paragraph idicates "if one is held". My guess is that the DOJ made a big push on Chief Justice Roberts and that is why we are where we are at. Now, your question has caused my only semi-active brain to figure something else out. Anybody forwarding mail, email or regular, should indicate their desire to attend the hearing (can include the proviso "assuming I am able" so not misleading court with unqualified intent). The more people evidencing not only their strong belief, but also their desire to attend if they possibly can, will really jolt them as to how strong public opinion is on this. A sentence saying that should there not be room for you to be accomodated in appearing, or if you are unable to physically attend, that you would like the opportunity to submit a written or electronic statement. Leave yourself an out because most really won't be able to attend when the time comes, but let them know that it is important enough that you want to try.

thanks, again.

I guess I was reading it more cynically: "if one is held" referring to any "Public" hearing (as opposed to a hearing that is private, closed, for we Republican political operative professionals, only).

Anyone still there? thanks pdaly and as always bmaz. Although there are good and usable points in the comments, if the non-lawyers write and say open access is good for transparency that is available in the blogosphere will we not be giving them the evidence they need to say that the open access is serving non-professionals with only a 'casual' interest in the cases and documents on line? That is, those who are emailing and who do not have PACER accounts?

Can anyone propose a way of saying how they have helped on do one's civic duty or gain a greater understanding of workings of justice?

deadline 10/26--although in my business, gov. systems tend to crash from over use on deadline day.

so I am still open to any suggestions of to the report of the existance of a webpage with some template letters.

And although it may be OT, I will reports if I hear of any in the future.

Good Morning BlueStateRedHead -- I'm here and IANAL, so here's what I'm thinking of sending...

Dear ...,

I have read that limiting electronic access to PACER information is being considered by your committee and I am deeply troubled by this news. A democracy can only properly function when the conduct of government may be scrutinized by the citizens whom government officials represent. There are occasions where keeping some information secret is warranted, but those occasions are rare and should be easily handled on a case by case basis. Too often secrecy is used as a shield to hide unseemly or incompetent conduct to avoid public embarrassment (or possibly prosecution) rather than to truly serve to protect a vital interest. The public's need to know far outweighs the needs of those made uncomfortable by scrutiny. How else can the public provide its informed consent? I urge you to continue to make all court records publicly available via the Internet to all citizens, except for those very rare cases where secrecy is imperative as determined on a case by case basis by a judge or similarly appropriate review panel.


Well, something like that... I'm still working on my coffee, so I might tweak it a little bit, but that is certainly the gist. What do you think?


I wasn't very clear about Tommy K in my post or in my emailed comments. But I think it is the best example. So you might say something like:

Using online access, bloggers Marcy Wheeler, Laura Rozen, and TPMM, have followed the Thomas Kontogiannis plea deal (and the Wilkes cases) closely. Kontogiannis' deal is of particular interest to citizens because 1) it occurred in a case that DOJ was alleged to have tried to impede and 2) it appears that Kontogiannis' crimes greatly outweigh the assistance he has given the federal government. Thus, it is the kind of case that ordinary citizens ought to be able to scrutinize, to assess whether our justice system is making appropriate charging decisions. Eliminating online access to such filings would raise the costs of such scrutiny beyond the point where it would be accessible to average citizens.


Looseheadprop has a post up today on this subject over at FDL.
I hope you don't mind me reposting at FDL your last comment here to BLueStateRedhead.
Since FDL readers will be writing letters in support of electronic public access to plea deals, your comment highlights a good issue for them to include in their letters, too.

Another suggestion as to content for comments to the committee:

Continued open access will help repair the nation's confidence in the Justice Department so egregiously wounded by the incompetence and willful malfeasance of AG Gonzales.

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