In response to a controversial Web site that exposes the identities of criminal defendants who have agreed to cooperate with authorities, the federal judges on the Eastern District of Pennsylvania bench have adopted a plan designed to make it impossible for any visitor to the court's Web site to discern whether a defendant is cooperating.
The new protocol, adopted last week, is a direct response to the Who's a Rat Web site, at www.whosarat.com, and will result in a modification of the docketing of all sentencing and plea documents in all criminal cases.
Chief U.S. District Judge Harvey Bartle III said that under the current system, users of the court's Web site were able to discern which defendants had entered into agreements to cooperate either by viewing the plea agreement documents or simply noting that those documents were under seal.
The fact that such documents were sealed was a "red flag," Bartle said, that could lead to the exposure of the cooperating defendant.
To fix the problem, Bartle said, the court decided to restrict access to all sentencing and plea documents in all criminal cases -- regardless of whether the defendant is cooperating.
"Those documents will still be publicly available in the courthouse for anyone who wants to come here and see them -- provided they are not under seal -- but you will not be able to sit back in your armchair and gain access to them," Bartle said in an interview.
In adopting the plan, which is set to take effect in September, the Eastern District becomes the second federal court to directly address the controversy sparked by the Who's a Rat? Web site. The Southern District of Florida recently adopted a similar plan.
Bartle asked U.S. District Judge Anita B. Brody to form a committee that ultimately included Assistant U.S. Attorney Linda Dale Hoffa, the chief of the criminal division in the U.S. Attorney's Office, and Assistant Federal Defenders Felicia Sarner and Leigh Skipper.
The Who's a Rat Web site was created in 2004 by Sean Bucci, a Boston-area disc jockey who claims he was busted on marijuana charges on the word of a longtime heroin addict who had become a paid informant.
A lengthy disclaimer on the site says that it "is definitely not an attempt to intimidate or harass informants or agents or to obstruct justice. This Web site's purpose is for defendants with few resources to investigate, gather and share information about a witness or law enforcement officer."
Bucci claims that federal agents knew that the informant against him had lied in a previous investigation, but nonetheless continued their probe of Bucci despite gleaning no evidence from months of surveillance.
When Bucci was arrested, agents seized more than 100 kilos of marijuana from his home. In February, Bucci was convicted by a jury on 16 counts, with a specific finding that his marijuana-distribution conspiracy involved over 1,000 kilos of the drug.
Just last week, Senior U.S. District Judge Morris E. Lasker of the District of Massachusetts sentenced Bucci to 151 months in prison.
Assistant U.S. Attorney Peter K. Levitt had urged the judge in court papers to reject any plea for leniency from Bucci due to the "devastating effect" that the Who's a Rat Web site had on the witnesses in his case.
Levitt's sentencing brief said the Web site had succeeded in "terrifying" the witnesses and their family members, and that Bucci also succeeded in his efforts to "intimidate and persuade" his co-defendant from pleading guilty and cooperating "by advising [him] that to do so would mean he would be profiled on the Web site."
Levitt said in his brief that although Bucci claims that his site is "simply designed to assist defendants in their cases by providing them with access to information about cooperators," the name of the site belies that.
"The title -- 'whosarat.com' -- and the logo -- a picture of a rat -- are designed, simply, to intimidate witnesses," Levitt wrote.
Levitt also argued that Bucci's claimed "altruistic motives are also belied by the fact that, since its inception, the person alleged by the defendant to be the informant in this case has been featured as 'Rat of the Week,' demonstrating that personal revenge and intimidation has been a motivating factor."
Bucci's lawyer, Assistant Federal Defender Stylianus Sinnis, argued in his brief that the court should reject a recommendation to enhance Bucci's sentence for his operation of the Web site, noting that the judge had already refused to revoke Bucci's bail over his alleged intimidation of a witness.
Sinnis' brief said that the court found that "while Mr. Bucci's actions 'pushed the envelope' they did not violate his conditions of release and did not constitute threatening or intimidating a witness."
No enhancement should apply, Sinnis argued, because "defendant's constitutionally protected speech of operating the Web site is an insufficient basis for a two-point enhancement for obstruction."
But in Florida and now in Pennsylvania, the federal courts have decided that while Bucci and others may have a First Amendment right to disclose the names of informants, the courts should get out of the business of making it easy for them to do so.
Brody, in an interview, said the court didn't want to wait for a tragedy, such as a witness being killed, before taking action.
Brody said Bartle was anxious to get a solution that would preserve the right of the public to get access to court documents, while at the same time making it difficult for operators of Web sites like Bucci's to gather data.
Hoffa said the issue was one that prosecutors and defense lawyers found themselves in agreement on because both camps have an interest in protecting the safety of cooperating witnesses.
Sarner said that two clients of the Philadelphia Federal Defender's office have been featured on the Who's a Rat site, and that she supported the plan to make documents inaccessible.
Under the new protocol, visitors to the Eastern District's Web site, known as PACER, will be restricted from accessing any documents in criminal cases relating to plea agreements or sentencing.
The PACER system will not identify which documents are under seal, but instead will direct anyone interested to come to the court's clerk's office to see them.
Lawyers, both prosecutors and defense, will have access to the documents through PACER by using a password.