Secret docket keeps details in corruption case hidden

03/19/2008

By Ramon Bracamontes / El Paso Times

The dozens of sealed and secret pleadings in the FBI's public corruption investigation will remain sealed, and the federal judge overseeing the case will probably keep sealing them until he is challenged legally, a national freedom of information expert said.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, Va., said she found it odd that 10 months after the first guilty plea in the public corruption case was entered, federal officials continued to work in semi-secrecy.

"This is a travesty," said Dalglish, whose group often intervenes on behalf of reporters when access to information is being thwarted. "Unless everyone starts complaining about things, or someone intervenes, the plea agreements will remain sealed when they shouldn't be."

The Reporters Committee for Freedom of the Press is a nonprofit group that provides free legal advice to journalists. The committee is also one of the many organizations participating in Sunshine Week, March 16-22.

Sunshine Week is a national move to open a dialogue about the importance of open government and freedom of information.

Carol Viescas, the journalism teacher at Bel Air High School who was formerly the assistant editorial page editor at the El Paso Times, said she has been following the public corruption case and is aware of how the pleadings are being done in secret.

"I'm surprised the media isn't fighting to get all of the records opened," she said. "As a journalist, ... it is interesting to see how widespread and how deep it is."

In fact, the El Paso Times has written letters requesting that the proceeding be open to the public, and reporters have sat outside of U.S. District Judge Frank Montalvo's courtroom for hours, only to be denied access when a proceeding took place.

In addition, reporters have had to watch all entrances to the federal courthouse when defendants were taken in through a back door.

"It is astonishing to me that in 2008, in El Paso, Texas, a federal judge is allowed to hold secret hearings, barring the public and the press from attending and not placing a judicial proceeding on a docket for the public to review," said Armando V. Durazo, assistant managing editor of the El Paso Times. "We have had reporters chased away from Montalvo's courtroom. All we want is to inform the public about this insidious public corruption that has taken hold in our community. The judge has a great responsibility to open his courtroom so the public can view what is going on and then agree or disagree -- that comes with an open society."

Montalvo did not return phone calls seeking comment.

Dalglish said that traditionally, only in drug cases do plea agreements remain sealed for long periods.

"Since this investigation does not appear to be drug-related, I don't understand why the plea agreements are not open," she said. "In this country, a person is entitled to an open and fair trial, and part of a fair trial is that you are entitled to plea in open court, so that others can watch, so they don't throw the book at you during sentencing."

So far, seven people have pleaded guilty in the public corruption case. The first one was John Travis Ketner, former chief of staff to El Paso County Judge Anthony Cobos. Ketner pleaded guilty to four counts of fraud and bribery in June. His plea agreement remains sealed and he has not been arrested or sentenced.

The seventh person to plead guilty was El Paso lawyer Raymond R. Telles, who pleaded guilty last week to two counts of mail fraud. His agreement also remains sealed, and he was not arrested or sentenced.

The five other plea agreements also remain sealed, and in each pleading, a secret document was used.

On the days the people went to plead, the federal docket pertaining to Montalvo's court did not list anything related to the ongoing FBI investigation. The names of the people who were about to plead were not listed on any docket, and any reporter or private citizen who asked what was happening in Montalvo's courtroom when the pleading was occurring was told nothing was scheduled.

Dalglish said this touches on the illegal use of a secret docket.

"The courts have ruled that secret dockets are inappropriate," she said.

In 2005, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the U.S. Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. One of the South Florida federal judges vowed never to use a secret docket again.

And, about secret dockets, the U.S. Supreme Court wrote:

"People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."

Paul Cassell, a University of Utah College of Law professor who was a U.S. district court judge for five years, said that it appeared federal authorities in El Paso are using a partial secret docket.

"I'm reluctant to say this is a good or bad decision because I don't know all of the specifics," he said from his office at the university. "What should be made available to the public and what should be kept secret is a complicated one."

Cassell said secret dockets were mostly used in drug cases, and the question always arises as to how long plea agreements should be kept sealed.

"Some secret dockets are OK and some are not," Cassell said. "At some point the judge will unseal everything, and the public will get a chance to judge for itself whether it was needed or not."