Federal defendants' cases sealed

WASHINGTON -- Despite the Sixth Amendment's guarantee of public trials, nearly all records are being kept secret for more than 5,000 defendants who have gone through federal court jurisdictions in the past three years.

Instances of such secrecy more than doubled from 2003 to 2005, according to an Associated Press investigation.

Most of these defendants are cooperating government witnesses, but the secrecy surrounding their records prevents the public from knowing details of their plea-bargain arrangements with the government, court observers say.

Most of these defendants are accused of being involved in drug gangs, though lately a very small number have been linked to terrorism cases.

Some of these cooperating witnesses are viewed to be among the most unsavory characters who have come before US courts, allegedly involved in multiple murders and drug dealing. But the public cannot learn whether their testimony against had won them drastically reduced prison sentences or even freedom.

In Washington, which has had a serious problem with drug gangs murdering government witnesses, the secrecy has reached another level -- the use of secret dockets. This has occurred with hundreds of such defendants over the past few years in the District of Columbia. Should someone acquire the actual case number and enter it in the US District Court's computerized record system, the computer will falsely reply ''no such case," rather than disclose that it has been sealed.

At the request of the Associated Press, the Administrative Office of US Courts conducted its first tally of secrecy in federal criminal cases. The data it provided showed 5,116 defendants whose cases were completed in 2003, 2004, and 2005, but the bulk of their records remained 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 a 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 reflected 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, antiterrorism efforts, and other criminal matters.

''This follows the pattern of this administration," said John Wesley Hall, an Arkansas defense lawyer 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."

The percentage of defendants who have been sentenced and still have most of their records sealed has more than doubled in the past three years, the office's tally shows.

Of almost 85,000 defendants whose cases were closed in 2003, the records of 1.1 percent remain mostly sealed. Of more than 82,000 defendants with cases closed in 2004, records for 2.2 percent are also mostly closed. And of the more than 87,000 defendants' cases closed out in 2005, court records for 2.7 percent are again mostly closed.

The court office also found a sharp increase in defendants whose case records were partly sealed for a limited time.

But the sealing of records continues for many defendants after the courts are done. At US District Court in Washington, one cooperating witness admitted to seven murders and testified in open court against codefendants who had committed fewer, said Lexi Christ, a Washington defense lawyer. But like the others who pleaded guilty and cooperated, that witness's plea deal was sealed.

''Cooperating witnesses are pleading guilty to six or seven murders, and the jury doesn't know they'll be sitting on the Metro next to them a year later," Christ said.

In another example of concern about government secrecy, a congressional committee will hold a hearing March 14 into a program under which federal intelligence agencies have withdrawn thousands of documents at the National Archives, though the records had been declassified.

Representative Christopher H. Shays, Republican of Connecticut and chairman of the Government Reform subcommittee on national security, emerging threats, and international relations, said the suppression of documents that pose no threat to security is indicative of a problem involving government secrecy.