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Board Resolution ~ 10/20/2007

Regarding Justice Department Proposal to Exclude Plea Agreements from PACER

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Regarding Justice Department Proposal to Exclude Plea Agreements from PACER 

Key West, Florida
October 20, 2007

WHEREAS the Justice Department has requested the Judicial Conference to restrict electronic access by the public to plea and cooperation agreements, in order to keep secret information about persons cooperating in the prosecution of others.

Since the founding of the nation the right to a public trial and the right of public access to court records have been conveyed to us by the sixth and first amendments as fundamental to popular self-government, to public awareness of government actions, and to the public scrutiny of the fairness of the criminal justice process.

In this day of digital mass communication and public discourse, nothing less than court publication of trial and pre-trial documents on the PACER website meaningfully fulfills the right to a public trial and to public access to court proceedings.

No unique capacity or consequence of this new communication medium justifies the suppression of the people’s right to a transparent criminal justice process consistent with the constitutional guarantees afforded the accused and the general public.

Because public access to court records is essential to the right to a public trial, to the criminal defense function and the most efficient administration of the courts, restraint must be exercised in the exclusion of case records from public access.

Since the Justice Department’s request cannot substantially realize its stated purpose of denying access to plea agreements to those intending harm to cooperators by extracting documents only from PACER, the prohibition is without sufficient justification in that it only encourages commercial access to court documents, but creates no diminished risk to informers and cooperating witnesses.

Restraint of select public court records, without a factual showing that the restraint would produce any results justifying the surrendering of a public right, sets a dangerous precedent because it encourages further undocumented justifications for restrictive policies and further erodes the public’s right of access to court records.

NACDL members who defend the accused in federal courts recognize that there are occasions when the legitimate interests of the defendant and the prosecution warrant the nondisclosure of the terms of plea agreements.

The proper forum for deciding whether to seal documents is the trial court, where a case-by-case determination can be made on the basis of specific findings, rather than general assumptions, in order to reach a proper balance between the right of public access, the rights of the accused, and public safety.

NOW THEREFORE, BE IT RESOLVED THAT the National Association of Criminal Defense Lawyers opposes the proposed exclusion of plea agreements from the Public Access to Court’s Electronic Records system (PACER).

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