U.S. v. Doe, 05-50474 (9^th Cir., May 29, 2007)

Here’s a remarkable decision from the Ninth Circuit. The defendant, who pleaded guilty to producing child pornography and engaging in child sex tourism, appeals his sentence. The decision is not remarkable for what it says, but rather for what it does not say: the defendant’s name.

In a footnote, the Court tells us that the defendant asked to proceed with his appeal under a pseudonym. Although courts will rarely allow a party to proceed anonymously, the panel notes that it is merited in “exceptional cases where necessary to protect a person from injury or harassment.” Here, all of the district court proceedings and appellate proceedings were filed under seal, probably as part of Mr. Doe’s plea deal.

Shame on the prosecutors and the courts for allowing a criminal defendant to remain anonymous, especially in light of the fact that this was his fourth time getting caught with kiddie porn. Neither the district judge - GWB appointee Klausner - nor the three appellate panelists - Reagan appointees O’Scannlain and Hall and GWB appointee Callahan - have a reputation for being generous with criminal defendants.

Update:  Since writing this post, I’ve learned that sealed criminal cases are quite common in some jurisdictions.  For example, according to this article, prosecutors filed a stunning 12% of cases in the District Court for the District of Columbia under seal.  Among other things, prosecutors will seal cases in which the defendant is providing ongoing assistance to a bigger investigation.  That makes sense.  But, as the article points out, DOJ does not police the use of sealed cases to ensure that anonymity is reserved for only the most extreme situations.  

Perhaps in this case, investigators have appropriated the defendant’s identity in an effort to catch more child pornographers.  If so, it makes sense to hide the fact that the defendant has been caught and sent to prison.  But there is also a risk that prosecutors may be promising defendants anonymity in “embarassing” cases in exchange for a plea deal that makes their jobs easier.   The lack of oversight is troubling.

Posted Tue, 29 May 2007 10:33:21 and filed under Decision of the Day. You can leave a response, or trackback from your own site.