Criminal Appeal

Ninth Circuit Takes First Step Toward Electronic Filing

Last week, the Ninth Circuit announced that it is beginning implementation of an electronic case management and electronic case filing system (CM/ECF). For now, counsel and parties can elect to receive email notification of docket activity. According to the announcement, "[t]he Court plans to implement full electronic case files (ECF) sometime this summer."

Ninth Circuit Posts (Some) Memoranda Dispositions Online. Effective September 28, 2004, the Ninth Circuit is now posting memoranda dispositions on its Web site. This is a nice step, but it is a limited move in a couple of significant respects.

Short Shelf-Life. Each memorandum is posted for only 30 days. Hopefully, this will be enforced as laxly as the three-month e-shelflife for oral argument audiofiles. (The court began posting audiofiles in January, but it appears that none have been removed yet.) Because of the 30-day e-shelflife, I recommend that users download the unpublished memorandum dispositions that are of interest. But don't panic if you forget. They're all already available on Lexis and Westlaw, apparently forever.

Oral screening dispositions not included. The Ninth Circuit is not posting the memoranda dispositions issued by oral screening panels. That's a large exception. According to Judge Kleinfeld, "[a] very substantial percentage of ... unpublished decisions are" decided by oral screening panels:

A very substantial percentage of our unpublished decisions are written by staff attorneys at our San Francisco headquarters. They are reviewed by the judges in "motions and screening panels," in which we decide an enormous number of cases in a few days, based on oral presentations by the staff attorneys and such examination of the briefs, record, and unpublished dispositions as we feel we can do in a very few minutes.

20 Questions for Circuit Judge Andrew J. Kleinfeld of the U.S. Court of Appeals for the Ninth Circuit, May 5, 2003, Answer to Question no. 12. And, in 1999, Judge David Thompson reported to the House Subcommittee on Courts and Intellectual Property, that "These special panels are deciding an average of 340 motions, and disposing of 140 appeals on the merits, every month." Some quick research confirms this suspicion. The Court posted on the Web site 94 unpublished dispositions for September. (There are actually more files posted for the month because dissents and concurrences are found in files separate from the majority memoranda.) But I found, in LexisOne.com, 32 memoranda dispositions filed on September 27, and 32 more filed on September 23, which were not posted on the court's Web site. Those 64 appeals were decided at an oral screening sitting on September 13. There's usually more than one such sitting each month and I didn't look any earlier than September 23 for unpublished opinions that didn't make the court's Web site. Suffice to say, there are many more. I suppose server space could be a problem and a line had to be drawn somewhere, and the line was drawn at oral screening decisions because those dispositions, while bearing judicial imprimatur, were not drafted in chambers and there's insufficient time for much editing on an oral screening day. (I'm not saying the panel rubberstamps the staff attorney's proposed memoranda. The oral screening panel will change the language, reasoning, and result of some cases. But there simply isn't time for the panel to significantly edit all of the oral screening dispositions.)

While we're still a long way from total free access, hopefully Howard Bashman is right when he suggests, "Making non-precedential opinions widely available, as the Ninth Circuit has now done, is typically the first step in allowing such opinions to be cited back to the issuing court."

I Want My Searchable Electronic Transcript! Why don't I get an electronic version of the reporter's transcripts when I'm appointed to a case? I don't know. I know they exist. There have been occasions when I have spoken to court reporters on the telephone and he or she has referenced an electronic version of a transcript while we spoke. And electronic transcripts are used in some very large-record multi-defendant federal appeals (one appellant's counsel gets the hard copy; the others get only an electronic version). And the California Court of Appeal (1st Dist.) receives electronic copies of transcripts in certain cases from certain counties.

But appointed counsel in California state appeals do not receive those electronic transcripts. Other attorneys create electronic versions by scanning the hard copies (sometimes 1000s of pages). Or course, this is imperfect as the scanner picks up errant marks on the page and makes other mistakes, not to mention the time it eats up.

I want my electronic copy of the transcript! I want to be able to search the transcript. I want to be able to cut & paste from the transcripts. The technology exists. I'm sure Denise Howell gets electronic transcripts in her appeals. (But she also has fancy record-management tools that are surely beyond the reach of court-appointed counsel.)

Looks like a computerized transcript is available at the same rate as the paper transcript if it is ordered in lieu of the paper transcript, or at a reduced rate if it is in addition to the paper transcript. So this must be all about money.

Peterson Case Docs May Go Online. On March 22, Presiding Judge Mark R. Forcum of the San Mateo County Suprerior Court gave notice that he "is considering a request to provide remote electronic access to all or a portion of the public court records" in the Scott Peterson case. This is one of the first (if not the first) proposed application of new Rule 2073.5, which was adopted effective February 27, 2004.

Online Access to Criminal Files Again, Feds this Time. As announced by the Ninth Circuit Office of the Circuit Executive, "[t]he Judicial Conference of the United States (JCUS) today (March 16) approved implementation guidance and a model local rule to be used by district courts nationwide to provide remote electronic access to criminal case files." According to the news release, the casefile documents would be accessible through PACER.

As I mentioned in a recent post about similar measures considered by the Judicial Council of the State of California, these measures could result in significant burdens on litigants and parties. According to the press release, however, redaction of personal data in federal district court is required for both paper and electronic versions of documents. At least there won't be the problem of submitting an unredacted print version and a redacted electronic version. Under the model local rule for federal district courts, "f]ilers of documents have the obligation to partially redact specific personal identifying information from documents before they are filed. Personal data identifiers to be redacted, whether the document is filed electronically or in paper, include Social Security numbers to the last four digits; financial account numbers to the last four digits; names of minor children to the initials; dates of birth to the year; and home addresses to city and state."

The district courts retain the authority to seal certain cases entirely and certain confidential documents will remain sealed in all cases, including "unexecuted summonses or warrants of any kind (e.g., search warrants, arrest warrants); pretrial bail or presentence investigation reports; statements of reasons in the judgment of conviction; juvenile records; documents containing identifying information about jurors or potential jurors; financial affidavits filed in seeking representation pursuant to the Criminal Justice Act; ex parte requests for authorization of investigative, expert or other services pursuant to the Criminal Justice Act; and sealed documents (e.g., motions for downward departure for substantial assistance, plea agreements indicating cooperation)."

Contentious Judicial Council Debate on Public Access to Criminal Case Records. About 10 days ago, I posted on the upcoming Judicial Council meeting and the agenda item about electronic access to criminal case records. Tomorrow's Recorder has a story by Jeff Chorney reporting that the measure passed only after a tie-breaking vote by Chief Justice Ronald George:

the debate translated into the most contentious discussion the Judicial Council has had in years. Normally, the council's bi-monthly meetings are subdued, bureaucratic affairs. Nearly every vote is unanimous. But Friday, after almost an hour of arguing, the vote was a 9-9 tie that had to be broken by Chief Justice Ronald George. The chief said he is sure he has had to break a tie vote before, but he could not remember when.

The notice of the amendment has already been posted, and the rule is already effective.
My opinion is that there is no harm in permitting electronic access to public records in very high profile cases (Michael Jackson, Scott Peterson, etc.). The press (whether it's The Smoking Gun or more mainstream media, will put those documents in the public domain anyway and electronic access eases the burden on the courts. The interim rule (it's only effective until January 1 of next year), no. 2073.5, seems to only apply to such high-demand cases and requires redaction of personal information.

Down the road, the state courts will have to consider whether to permit electronic access to more run-of-the-mill criminal cases. I view such access for parties, attorneys and the press as generally being a good thing, but there certainly is the potential for abuse and the burden would be tremendous to require redaction of documents in all such routine cases.

Are there any jurisdictions that already have electronic Web-based access to criminal cases documents? Anyone hear of misuse of those records?

California Judicial Council to Meet Next Week: Electronic Access to Criminal Case Records is on the Agenda

The California Judicial Council is meeting next Friday (Feb. 27) in San Francisco. Item no. 11 (see page 6 of the agenda) is an interesting item regarding internet access to criminal trial court records. The Administrative Office of the Courts will be recommending the adoption of an interim rule (good until the end of the year), "which would allow courts to post criminal case records on the Internet in a high-publicity case under specified circumstances." The agenda description of the item states that "Rule 2073 currently allows courts to provide remote (i.e., Internet) access to all electronic court records in civil cases, but not in criminal cases, because of privacy concerns." The AOC explains that "in high-publicity criminal cases, the use of the Internet may be appropriate, as it will significantly ease burdens on court staff and most information in the court file is already widely disseminated through the media."

The new rule would become effective immediately, just in time for the Scott Peterson trial!

As a practitioner and a blawger, I'm a huge fan of electronic dockets (and records too), and wish there were greater access. (Electronic access to all pleadings in criminal cases is another matter, and raises greater privacy concerns.) Rule 2073, which is already in effect, requires trial courts, to the extent feasible, to provide for remote access to registers of actions, calendars and indexes. Within the First District, the only trial court I know of which has found this "feasible" for criminal cases is Solano County. Alameda's remote electronic access is limited to civil, family, and probate cases. Greater internet access to trial court dockets would be welcomed by appellate practitioners trying to complete the record on appeal or trying to find out about related cases. (Such access would have smoothed out the investigation I have had to do recently in connection with a client's multiple cases: he's got 5 open cases in 3 different counties.

California appellate courts have come a long way and the Case Information web site is a beautiful thing. But there's still room for more access to electronic dockets. Supreme Court dockets are online for all cases, including juvenile case. But the state court of appeal still does not allow electronic access to juvenile case dockets. Hopefully, the Courts of Appeal will follow the lead of the California Supreme Court (here's an example in one of my cases), the Ninth Circuit and the U.S. Supreme Court (here's an example) all of which allow internet access to redacted versions of the dockets in sealed/confidential cases.