The Case of Who? v. We Don't Know What You Are Talking About


In more Sunshine Week-relevant news, the Reporters Committee for Freedom of the Press discovers that

During the past five years, 469 cases in U.S. District Court in Washington, D.C., have been prosecuted and tried in complete secrecy, with no public knowledge even of the cases' existence and no way for the public to challenge the secrecy.
Keeping cases off the docket–and off the public record–is different from sealing cases. The only way to determine the existence of off-the-docket cases is to scroll through public dockets searching for missing case numbers
In Washington's federal district court, most off-the-docket criminal cases were kept off the public docket after prosecutors asked judges to seal the cases……Both the department's arguments for and the judge's approval of sealing an undocketed case are shielded from public view, making it impossible to know whether the guidelines are followed.

Such secrecy is necessary, some argue, both to protect whistleblowers and to make prosecutions possible in cases related to gangs who can be expected to retaliate with violence, where the very ability to notice, say, that not much progess appears to be happening with a docketed case might lead some associated crook to guess this means someone involved is squealing, and mayhem will result. This secret docketing has been declared unconstitutional in the 2nd and 11th circuits. The Reporters Committee report, very long but worth reading in full, questions the wisdom of a practice whereby

even after a case ends, the public remains completely in the dark about defendants prosecuted, tried and sentenced in a court system based for centuries on judicial openness. The cases, for all intents and purposes, simply do not exist. Stacey Sutton, an attorney [who works with the ACLU says] "It's a bedrock of our constitutional system that courts are open to the public," she said. "That there are entire cases closed to the public is inherently adverse to our system."

ABA Journal reports on the secret docket here.

NEXT: Sunshine Week for Covert Operatives

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  1. It’s pretty quiet here in comments, considering we’re talking about secret federal trials.

  2. Stalin would be proud.

  3. They’re probably all cases of Catholic priests busted for grabbing itty bitty titty, and being kept hidden by Bush and the Priory of Sion.

  4. I wonder how these cases affect precedent. If they’re completely closed to the record, then theoretically, a judge could rule the opposite way in an identical case that came up a few years after the original, secret one. Maybe somebody somewhere has the answer to that one, maybe not.

  5. “It’s pretty quiet here in comments, considering we’re talking about secret federal trials.”

    What can one say? I mean, it’s gotten to the point where federal courts do pretty much as they please in this country (the US). Whom do they have to answer to anyway, other than OTHER federal courts or (laughable) Congress?

  6. Are secret trials of secret defendants anything like secret designers of secret designs? They don’t sound nearly as funny.

    And how do they keep them secret? Do they shoot the jury after ther trial?

    Actually, bad jokes aside, I suppose these cases were not heard by a jury. But if that’s the case, what happened to the right to a jury trial.

    Anyone else see a resemblance to a large Australian marsupial?

  7. “The only way to determine the existence of off-the-docket cases is to scroll through public dockets searching for missing case numbers.”

    Having lived in DC, I think it’s important that we not rule out the possibility that the court clerks simply couldn’t count.

  8. It’s no big deal. Why would they even be on secret trial if they weren’t terrorists? The administration has given us every reason to give our full allegiance and trust.

  9. I agree with joe (and the Apocalypse will begin shortly).

    How does that saying go? “Never attribute to malice what can be explained by incompetence”.

  10. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    I firmly believe that the typical judge is sleazy and not very bright. Prove me wrong!

  11. F. Le Mur: it seems pretty straightforward, doesn’t it? A public trial that allows witnesses to attest to the court’s impartiality…the right to confront accusers and answer all evidence…the right of appeal. How could we have so many politicians and judges who have never read the Constitution?

  12. All Federal Courts judges are a class of permenantly appointed people, (some might even say a Good Ol’ Boy network), who seem to feel they are above the law, and certainly do not operate their courts within the law. They take the position their rulings are suppose to be unquestionable and they are answerable to no one, since there are no constitutional oversight mechanism to govern federal judges, their qualifications, competence, or their behavior. Federal judges are well aware they have free reign but also know that this sort of arrogant authority comes at a price and so the secrecy. Yes, some judges have been threatened, but you have to wonder why. Cases that even hint at legal indiscretions or questions the competence of the judge, or for that matter, following foreign court precedence, are grounds for federal judges to be thrown out of office. But it is almost unheard of for a federal judge to get pulled from the bench.

    We mistakenly look at our court system as infallible and the final word and authority on issues and justice. Fact of the matter is, there are alot of shady things that goes on in federal court. For instance, there is much talk about some federal judges profitteering from some corporate case decisions, and would suspect from other cases as well. Specifically by law, Federal Bankruptcy Courts are suppose to be open to the public, but just try and talk to any of the judges about any of the cases!

    Most judges do not review cases preceeding court as they should, rather, Lackadaisical in effort. They also come to court with their own biases, emotional and psychological baggage, go through the motions of being “entertained” by prosecutors and defense attorneys, and make decisions on a whim.

    Despite their claims by the judicial branch they are only to interpret the law as set forth by Congress, some Federal judges, have indeed been influencing situations or molding their own brand of law that have put this country in precarious situations on a number of instances. The most notorious one of these was Dred-Scott Decision which eventually lead to the Civil War. You can’t help but wonder whether any of these “secret” cases today have such an impact, or whether court case “Secrets” are an acknowledgment for incompetence or as a cover for corruption. But, it is unlikely it would be for any other reason.

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