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It started out like any typical drug case. Herbert Leininger was caught with three kilograms of cocaine, arrested, and booked. He appeared in D.C. federal court the following day, and a judge ordered him jailed without bond. Then, three weeks after his initial court appearance, Leininger’s case seemed to simply vanish. Records in the U.S. District Court for the District of Columbia indicate his individual case was closed and the matter was “merged” with another criminal case — a case that, according to the court’s electronic records system, never existed. Now it has been more than six years since Leininger’s arrest and still there’s no record of how the matter was resolved. There were never any open hearings along the way, and no public documents were ever filed. That Leininger’s case was shrouded in secrecy is no surprise to those familiar with the workings of Washington’s federal courthouse. In fact, some say it happens all the time. So far this year, nearly 20 percent of criminal cases in Washington’s district court have been kept off the public docket, which means the public has no way of knowing they exist. Lawyers and court officials contend that keeping some cases off the public docket is a necessity — at times a matter of life or death for witnesses cooperating with the government. But some critics contend the practice jeopardizes the public’s right to an open judicial system. “It’s unconstitutional. What’s happening is blatantly illegal, and it’s happening in such a pervasive way that it’s more than just an isolated case,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. A study conducted by the Reporters Committee, to be published this week, reveals that during the past five years 18 percent of nearly 3,000 criminal cases in the D.C. federal court were not docketed. The number of undocketed civil cases during that period was significantly less — 65 out of more than 12,000. Most of those 65 civil cases were whistle-blower suits, which are kept off the docket for 60 days by law to give the government time to investigate the claims. As for off-the-docket criminal matters, most involve violent gangs or major drug-trafficking rings. Because such crimes tend to be concentrated in small areas, word spreads quickly if someone is cooperating, which is especially dangerous in a city with such a well-documented history of violence against witnesses. U.S. District Chief Judge Thomas Hogan cites the potential for witnesses being harmed as a valid reason for sealing cases. While he says he understands the concerns raised about sealing cases in a country that prides itself on open judicial proceedings, he adds, “I don’t really think there’s a conflict there as long as the judges and the U.S. attorneys are acting responsibly.” There is no formal policy to guide federal judges in sealing cases, so it’s up to each judge to determine if adequate justification exists to keep a matter off the public docket. Because members of the public are unaware of undocketed cases, they have no inclination to object, points out defense attorney Joanne Slaight, a solo practitioner in Washington. And even if someone wanted to object, doing so without a case number and without knowing which judge to petition would make such a protest enormously difficult. “The prosecutors want to protect their investigation, and it’s in the defense lawyer’s interest to seal the case for the protection of their client,” Slaight says. “It serves both parties, but whether it serves the public is a different issue.” PROSECUTORIAL POWER When it comes to keeping criminal cases out of the public purview, it’s almost always at the prosecution’s request, either to protect the identity of a government witness or to preserve an ongoing investigation. In light of the heightened potential for retaliation against cooperators in the District, it’s likely there’s a higher percentage of criminal cases under seal here compared with some other federal courts, says Stevan Bunnell, chief of the criminal division at the U.S. Attorney’s Office in Washington. When the prosecution moves to seal a case, there must be a compelling justification to do so, Bunnell says. The specific standards are spelled out in the U.S. Department of Justice’s “Policy With Regard To Open Judicial Proceedings,” a guide for government lawyers that states there are very few cases in which closure is warranted. The policy also indicates that each request to seal judicial proceedings must be forwarded to Main Justice for approval by either the deputy attorney general or the associate attorney general. “If you are a busy prosecutor with lots of stuff going on, you’re not going to go through that bureaucratic headache unless there really is a need,” Bunnell says. When an investigation concludes and an informant’s help is no longer needed, it’s up to the prosecutor to see that the case is unsealed, Bunnell says. The assistant U.S. attorney who handled the matter typically moves to unseal the case upon sentencing, but that doesn’t always happen. Occasionally, cases are kept under seal longer because the potential for retaliation remains. Then there are the cases that court officials say inadvertently remain sealed — cases that fall through the cracks. Says one D.C. defense lawyer familiar with the handling of sealed cases: “The problem is that once a case goes undercover, I’m not sure what mechanisms exist to make sure that when the need for secrecy no longer exists, the matter becomes public.” (Because the lawyer is often involved in sealed cases, he spoke on the condition that he not be named.) Some observers point to frequent turnover in the U.S. Attorney’s Office as a possible reason that cases sometimes go overlooked. In other words, if the prosecutor moves on to a new position, cases may be forgotten. Bunnell says he doubts that’s the case. For their part, court officials say they make an effort to ensure the outcomes of judicial proceedings are made public in a timely fashion. About every two years the vault where sealed case files are stored is cleaned out to make room for new cases, according to courthouse officials. At that time clerk’s office employees sort through older cases in an effort to identify those that should be unsealed. But before a sealed case can be made public, the prosecution must file a motion and, ultimately, the judge must approve it — a process that, for various reasons, doesn’t always come to fruition. That means some cases remain in the vault for at least another two years. Though Bunnell acknowledges the government has a responsibility to inform the public about what’s going on inside courtrooms, he doesn’t believe that failing to unseal cases years later compromises the public’s right to know. “I’m not sure it’s all that important in a sense that I haven’t seen the press running stories about people who were sentenced five years ago,” Bunnell says. “I’m not sure how big of an issue this is for the media or the public.” Perhaps the best-known off-the-docket criminal case is that of Colombian drug kingpin Nicolas Bergonzoli. He was prosecuted and sentenced in total secrecy in Miami’s federal court in 2002. The sealed case sparked controversy when lawyers for Colombian drug smuggler Fabio Ochoa-Vasquez sought access to documents from Bergonzoli’s case to help prepare for their client’s trial and were denied. Ochoa-Vasquez’s lawyers filed an appeal challenging the court’s use of a secret docket. In October 2005 the U.S. Court of Appeals for the 11th Circuit ruled that the federal trial courts in Alabama, Florida, and Georgia must provide written explanations for the public whenever a case is sealed. The 2nd Circuit, which covers Connecticut, New York, and Vermont, also has found the use of secret dockets unconstitutional. The matter has yet to come before the D.C. Circuit. OUT OF SIGHT As for Herbert Leininger, it’s unclear why his case remains sealed. His attorney, Jensen Barber, declined to give a reason, and a spokesman with the U.S. Attorney’s Office would not discuss the case because it is sealed. Originally, Leininger’s case was sealed for his protection and because of an ongoing investigation. Acting on a tip, Metropolitan Police arrested Leininger on Nov. 11, 1999, after he obtained a cocaine shipment from Florida at his usual pickup site. A few weeks later, police raided a Northern Virginia warehouse that Leininger had rented and found three more kilograms of cocaine, making the case against him even stronger. It was at that point that Leininger began to cooperate with investigators, providing information about the dealers who furnished the cocaine he distributed throughout Washington. Although Leininger’s case remains sealed, details about his criminal activity and his cooperation are available in court documents from the cases he helped the government build against his suppliers. One of them was John Haire. With the help of Leininger’s testimony, Haire was convicted of conspiracy to distribute cocaine in October 2001 and sentenced to 20 years in prison. Leininger testified that he began selling drugs on a small scale in the early 1980s to supplement his income as a self-employed carpenter. His illegal-drug operation expanded over the years until finally he was caught. Leininger faced a lengthy prison term, which prosecutors said could be drastically reduced if he provided “substantial assistance” to their investigation. “Basically, I was in deep trouble,” Leininger testified. “I thought it was in my best interest to try to cooperate and do the right thing.” Barber acknowledged that Leininger, now 56, ultimately served several years in prison and has since been released. Barber could not say exactly how long Leininger served, and there is no information in the public record to prove he was ever sentenced. Property records indicate he still owns a row house in Northwest Washington, but no one answered the door during a recent visit to the residence. Leininger’s telephone number is unlisted, and he could not be contacted for this article. Unless the government files a motion to unseal, it’s likely Leininger’s case will forever remain in the vault. “It would be incumbent upon the government to move to unseal it, because I am not going to,” Barber says, adding, “I would be happy to keep that under seal forever.”
Sarah Kelley can be contacted at [email protected].

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