Local rule shields Petraeus documents

Former CIA Director David Petraeus and ex-CIA officer Jeffrey Sterling were both convicted for leaking government secrets. Although Petraeus received probation and a fine, a judge last week sentenced Sterling to 31/2 years in prison.

The sentencing disparity revived criticism that Petraeus, the most well-known general from the wars in Afghanistan and Iraq, did not get all he deserved because of his celebrity and political connections.

But documents that might help explain Petraeus’ punishment remain hidden due to an unusual policy in the federal court district that includes Charlotte and Western North Carolina.

While sentencing documents for Sterling and others convicted of federal crimes elsewhere in the country are accessible on the Internet, Petraeus’ records are sealed.

That’s because his case was handled in Charlotte, where the public cannot see a defendant’s sentencing memorandum due to a longstanding practice that has gone unchallenged.

Although defense attorneys, prosecutors and judges discuss sentencing in open court, the memorandum often contains more detailed information about the circumstances and legal arguments judges consider when they determine a defendant’s punishment.

Court officials, former prosecutors and defense attorneys say the policy protects people who cooperate with law enforcement and help win convictions. It also conceals personal matters, including information about their health, family background and finances.

“There are real-life consequences to what’s inside a sealed document,” said Frank Johns, clerk of court for the Western District of North Carolina, whose office automatically files the papers as sealed.

But legal experts said the documents are routinely made public in other federal court districts. They said they were not aware of any other jurisdictions in the country where the records are sealed without approval from a judge.

“They would have never been sealed in Alexandria (Va.) or Washington, D.C.,” said attorney Edward MacMahon, who represented Sterling and asked the court to show the same leniency Petraeus received. “At the worst, they would have been redacted. They should release the documents so everyone will know why he got the sentence he got.”

The Observer, along with eight other media organizations, asked U.S. Magistrate Judge David Keesler of Charlotte in late April to release the sentencing memorandum filed by Petraeus’ defense team along with letters written on his behalf. The media organizations also want Keesler to unseal his written reasons behind the punishment given last month.

“Petraeus is a high-ranking official who’s pleaded guilty to serious misconduct,” said Hannah Bloch-Wehba of the Reporters Committee for Freedom of the Press, one of the media organizations that has asked the court to release the Petraeus sentencing memorandum. “It’s misconduct that relates to national security. The public should understand why he is serving no jail time.”

Patrick Cannon case

The secrecy has prevented the public from learning complete details about the sentencing of other high-profile figures, including former Charlotte Mayor Patrick Cannon. He is serving a 44-month prison sentence for accepting more than $50,000 from undercover FBI agents.

Court officials last week denied a reporter’s request for Cannon’s sentencing memorandum documents. On Friday, the Observer filed a court motion seeking to unseal it and related documents, including letters of support.

Authorities accused Petraeus of lying to the FBI about giving classified records to his biographer and former lover, Paula Broadwell of Charlotte.

Petraeus, 62, was sentenced under an agreement approved by his attorneys, former //U.S. Attorney General Eric Holder and local prosecutors. He admitted to one count of unauthorized removal and retention of classified material, a misdemeanor that carries a maximum sentence of one year in prison and a $100,000 fine.

Attorney Jacob Sussman, who represents Petraeus, declined comment.

In court filings, Petraeus’ lawyers say they do not object to the release of the sentencing memorandum or letters written on his behalf, with a few exceptions: They want telephone numbers, emails and home addresses redacted, as well as one sentence from a confidential court presentencing investigation report.

Never challenged

Transparency in U.S. courts is considered key to maintaining confidence in the judicial system.

Federal court rules do keep some highly personal information sealed.

Judges, for example, receive a confidential presentencing report from federal probation officers before deciding a defendant’s punishment. It contains detailed information and a recommendation from probation officials about a sentence.

The court also considers arguments laid out in another document called a sentencing memorandum. Those are public in most federal districts, attorneys said. They include aggravating factors – which can lengthen a sentence – or mitigating factors, which would reduce it.

Petraeus agreed to plead guilty to a misdemeanor and pay a $40,000 fine. Keesler increased the fine to $100,000. He said he raised the fine to reflect the seriousness of the offense.

Under local federal court rules, any motions, pleadings or objections from attorneys are sealed if they are related to sentencing.

Johns, the clerk of court, said officials began sealing sentencing memorandums around 2002, just after converting from paper to electronic filing. Workers at the time could not figure out how to redact private information also contained in the pre-sentence report, Johns said, so officials decided to let attorneys shield the entire record.

Johns said clerks can now easily redact sensitive information, but the rule has remained in place, in part, he said, because “No one has ever challenged it.”

Local federal court policies are set by a rules committee, he said. Even if Keesler releases the sentencing memorandum in the Petraeus case, Johns said, the decision likely won’t impact the records for other defendants.

Rules committee members would need to vote to change the practice, Johns said.

David Cleveland, a law professor at Valparaiso University in Indiana, said he understands the concern about electronic redaction because there have been instances where glitches have caused courts to inadvertently release information that was supposed to remain private.

But Cleveland said he is stunned that any local federal court would automatically seal sentencing memorandums without making the parties from each case explain why it is necessary. Court documents are made public to help deter crime, inform policy decisions by lawmakers and to allow the legal community to interpret the law, he said.

“That cuts against all principles of judicial transparency,” Cleveland said. “A court should be accountable for the actions it takes. There is a duty to explain why.”

This story was originally published May 16, 2015 at 4:39 PM with the headline "Local rule shields Petraeus documents."