Secret criminal cases may at last see light of day

  • Article by: DAN BROWNING , Star Tribune
  • Updated: February 15, 2008 - 7:54 PM

The U.S. attorney's office may consider automatic review of sealed criminal cases following an inquiry by the Star Tribune.

Two and a half months after Al-Qaida terrorists attacked the United States in 2001, federal prosecutors obtained two criminal indictments in Minnesota and filed them under seal.

They remain secret to this day. So do 10 cases from 2002, eight from 2003 and 10 from 2004. The defendants in these cases could be juveniles. Or they could be fugitives. Or they could be informants.

Or they just might be terrorists. Government prosecutors won't say.

Such secrecy troubles government watchdogs.

"It used to be that sealings were extraordinarily, extraordinarily exceptional," said Martin Garbus, a New York lawyer who's considered one of the nation's top First Amendment litigators. But that's changing, he said.

Terrorism, Internet access to court records and a website that publishes the names of government informants have left authorities more cautious about unfettered access to sensitive case files.

A reporter entered more than 3,000 case numbers in the U.S. District Court's case-tracking system and identified 83 criminal cases filed from January 1998 through 2007 that remain under seal. Not quite two-thirds of those cases have been under seal for more than three years. Only the case number was public in these cases. No names, charges, lawyers, or even the dates of the charges were listed.

"You never know how much information is too much," said Assistant U.S. Attorney Jeffrey Paulsen, who heads the criminal division in Minnesota.

Jane Kirtley, Silha 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 federal Appeals Courts -- the Second, Ninth and 11th, which don't include Minnesota -- have found that 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."

Cases are quietly unsealed

Minnesota's chief U.S. District Court judge, James Rosenbaum, said he knows of nothing nefarious going on.

"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," he explained, citing juvenile records as an example. In other cases, he said, when a legitimate need for secrecy expires, a judge will unseal the file.

But soon after the Star Tribune's inquiry, prosecutors moved quietly to unseal several cases, raising questions of whether some had remained secret by default.

One such case involves Ana Isabel Omana Torres, 36. She 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 had given the U.S. attorney's office its list of sealed cases.

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 Wednesday, 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. But he said in a recent interview that his office would consider whether changes are needed to ensure periodic reviews of sealed cases, a practice similar to what happens with search warrants.

All sealed cases reviewed

At the Star Tribune's request, Paulsen reviewed 64 cases filed since Sept. 11, 2001, that were still under seal as of mid-December. Asked if any involved terrorism, Paulsen said he would not comment on the subject.

About a third of the cases involved juveniles, he said. Eight of the cases involved fugitives, which are generally unsealed when they're caught. (Six of the 64 cases Paulsen reviewed have since been unsealed for that reason.)

Typically, such cases are sealed for relatively short periods. But seals hovered for months in some recent cases, even after defendants began appearing in court. One involved the secret indictment on Aug. 22 of a dozen alleged Minneapolis gang members on drug and weapons charges. Four defendants had made court appearances before the seal was lifted on Nov. 1.

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. He acknowledged that a seal could persist even after a defendant is sentenced. "In some cases, the risk to someone might never go away," he said.

Informants under fire

Paulsen said recent initiatives to publish dockets and court records on the Internet have heightened security concerns because of organized efforts to expose informants. As an example, he cited whosarat.com, a website that 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.

Lucy Dalglish, a former Minneapolis lawyer who now heads the Reporter's Committee for Freedom of the Press in Washington, D.C., said attorneys have a right and duty to ask a judge to seal a case to protect defendants. But she said they have massively overreacted to whosarat.com.

She's heard complaints from Florida, Alabama and California. "It's ridiculous!" she said.

Dalglish said a judge is supposed to "narrowly tailor" any sealing order to protect the public's First Amendment right of access and a defendant's Sixth Amendment right to a public trial. If a case is under seal there's no way for the public to oversee the judicial process, Dalglish said. "You can't object to something you don't know about," she said.

"The problem is, there is no automatic mechanism to come back and say... it's time to unseal it and tell us what these guys did," Dalglish said. "Because ultimately what this means is we have people in this country sitting in prison, and there's no public record of how they got there."

Dan Browning • 612-673-4493

WHO'S A RAT?

Controversial website takes aim at informants and law-enforcement officer. B10.

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