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Secrecy in Minn. federal court troubles First Amendment experts

By The Associated Press
02.21.08

MINNEAPOLIS — A Star Tribune investigation of federal court cases in Minnesota shows that 83 of 3,000 criminal cases filed between January 1998 through 2007 were under seal — a number that troubles government watchdogs.

About two-thirds of those cases have been under seal for more than three years.

When a case is under seal, nothing but a case number is public — the name of the person charged and the nature of the case are kept quiet. The public can't know if the case involves terrorism, juveniles, or something else.

"It used to be that sealings were extraordinarily, extraordinarily exceptional," said Martin Garbus, a First Amendment litigator in New York. But that's changing, he said. Terrorism, Internet access to court records and a Web site that publishes the names of government informants have left authorities more cautious when dealing with sensitive cases.

Jane Kirtley, a professor of media ethics and law at the University of Minnesota, called the Star Tribune's findings painful.

"Any kind of secret proceeding is subject to problems — corruption, special interest, favored treatment, discriminatory treatment — and the only way you know that those things aren't happening is if they take place in public," she said.

Three U.S. Circuit Courts of Appeal — which don't cover Minnesota — say secret court dockets may violate either the constitutional protections of the press, the right to a public trial, or both.

"I think particularly in the terrorism area, the reaction post-9/11 has been to say national security requires secrecy," Kirtley said. "But as we know, secrecy doesn't necessarily mean that we are more secure. In fact, it often means the opposite."

Minnesota's chief U.S. District Court judge, James Rosenbaum, said: "The judges in the District of Minnesota are strongly committed to full public access to the courts and their procedures. There are certain categories of cases which by law are and must be sealed."

Juvenile cases are an example of that. In other cases, he said, when a legitimate need for secrecy expired, a judge would unseal the file.

Assistant U.S. Attorney Jeffrey Paulsen, head of the criminal division in Minnesota, said his office would consider whether changes need to be made to ensure periodic reviews of sealed cases.

At the Star Tribune's request, Paulsen reviewed 64 cases filed since Sept. 11, 2001, that were still under seal as of mid-December 2007. About a third of the cases involved juveniles, he said. Eight involved fugitives, which are generally unsealed when they're caught.

Six of the fugitive cases Paulsen reviewed have since been unsealed for that reason.

Other cases were also quietly unsealed since the newspaper's review.

One involved Ana Isabel Omana Torres, 36, who was publicly charged with drug conspiracy in the fall of 2005, but her case was sealed in June 2006 when a new indictment named her and a co-defendant, Jaime Navarro Figueroa.

Omana Torres was sentenced Nov. 28, 2006, to 5¼ years in prison. The case remained secret until Dec. 26 — one week after the Star Tribune gave the U.S. attorney's office a list of sealed cases.

In another case, Christopher Tolck, 36, of Minneapolis, was secretly charged in 2002 with conspiring to distribute marijuana. He was sentenced in a "sealed courtroom" on June 3, 2003, to 21 months in prison, five years of supervised release and a $10,000 fine.

Tolck's name appeared last year in an appeals court opinion as having testified in a drug-forfeiture case involving the Hells Angels clubhouse in Minneapolis. Yet his own criminal file remained secret until Feb. 13, when it was opened without explanation after two documents were filed in the case. Those documents were filed under seal.

Paulsen declined to comment about individual cases.

Typically, cases are sealed for relatively short periods. But Paulsen said the need for secrecy can persist indefinitely in some cases.

"What we're talking about mainly is people who are out on the street cooperating," he said, noting a seal could persist even after a defendant is sentenced. "In some cases, the risk to someone might never go away."

Paulsen said initiatives to publish dockets and court records on the Internet have heightened security concerns. He pointed to the Web site whosarat.com, which bills itself as the largest online database of informants and government agents.

"None of us wants to see a defendant get hurt or killed," Paulsen said.


Related

Federal court denies U.S. request to seal files in terror trial

'The press and the public enjoy a qualified First Amendment right of access to criminal trial proceedings,' district court in Georgia rules. 10.27.06

Court orders Columbine files sealed for 20 years

Federal judge's ruling also prohibits school-violence expert, his assistants from reviewing statements made by parents of teen gunmen. 04.03.07

Mass. high court backs judge's decision to seal jurors' names
Prosecutor, newspaper editor say ruling in gang-related case opens door for other jury lists to be withheld. 04.09.07

Nev. high court adopts rules for sealing civil court cases
Under new guidelines, records will remain open unless compelling case can be made for sealing them. 01.03.08

Info in Okla. court cases frequently kept under wraps
Tulsa World analysis finds thousands of cases and documents have been sealed by state district judges since 2003. 08.12.08

Legal newspaper asks high court to unseal docket
Public might never have known about Pennsylvania case except for 3rd Circuit decision earlier this year that revived the 'Jane Doe' lawsuit. 09.15.08

Post-9/11 info access

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