papertrail.jpgDamn, damn and double damn. Somebody noticed that people, regular people (not just us lawyers and maybe some reporters–but goddamn dirty F****** hippies) were using the Internet to follow what is going on in criminal cases; and they are considering putting a stop to all that.

Back in the old days, the only way to access a case file was to physically go into the courthouse, sign out the file from the court clerk’s office and sit there in the clerk’s office reading it. If you were lucky, there might be a largely un-usable photo copy machine that would eat most of your quarters and give you a couple of barely legible copies.

Being a lawyer is SUCH a glamorous job.

The only folks who would really do much of that kind of thing were: lawyers who were in the courthouse anyway, reporters who get paid to go get information, and a few lay people who cared passionately about a given case and were willing to take a weekday off from their day jobs to go to the courthouse. Anybody remember Pach’s famous trip to go get transcripts of one of the Libby pre-trial proceedings?

Now, due to the wonders of ECF, the federal court’s “Electronic Case Management” system and it’s companion “PACER” which allows anyone with a credit card registered with the PACER system to download and print PDF’s of the documents filed with the court; any pajama clad, pasty faced basement dweller can access, read and print copies of almost all the documents filed with the court. The usual exceptions to that being things filed ex parte or things filed under seal.

On September 10th, The Court Administration and Case Management Committee of the Judicial Conference of the United States opened a comment period for public comment on a proposal to restrict access to plea agreements in criminal cases.

To understand what you will lose out on if this restriction goes into effect, check out Marcy’s post here.

The purported rationale for this is that these plea agreements “may” contain information identifying defendants who are cooperating with law enforcement.

That’s just silly. Any AUSA worth spit knows how to use the phrase “confidential informant A” (or B or C as the case may be). If the Regent Law School grads are too dumb to do that, well….

Now more seriously. If you review the incremental work of the judicial conference in this area, over the past few years you will see that they have actually been liberalizing public access to this kind of information. And our beloved Judge Hogan made history by allowing live blogging of the Libby Trial.

LHP ♥s federal judges.

So, pups. I think this request for comments might actually be a request to those of us out here who actually make good and valuable use of the access they have so thoughtfully provided, to help them help us. After all, this is the groundbreaking site that brought the world the first liveblogged federal trial. You all have lots of credibility on this issue.

I think it would be quite useful to them if they received many well reasoned and eloquent comments that explain why transparency is so vital, and how the harms they fear can be minimized. Before writing, if you can spare the time, take a read through the second link and see what they have done and how they have surgically addressed prior privacy concerns.

In the comment period, they are also seeking alternative suggestions rather than a mere “yeah” or “nay”. So, this is your opportunity to offer your own suggestions about public access to the federal courts system.

When was the last time someone gave YOU an opportunity to help set a policy for all the federal courts to follow? I think the US Judicial Conference is exhibiting the healthiest regard for participatory Democracy we have seen in quite a while, so let’s respond in kind. Please keep your emails to them, respectful and constructive—and on point—we want this outreach to be SO successful that they will repeat it in future.

Maybe some other branches of government might even be shamed into following suit?