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Almost 70% of the 1,465 court documents filed in the most notorious murder case in Anne Arundel County history were being kept from the public at the end of 2019, according to a review by The Capital of data from the Maryland Judiciary.
The documents were closed without any court order or public notice. Prosecutors and defense attorneys made the decision on their own, employing a little-known feature of the judiciary’s expanding electronic record-keeping system, Maryland Electronic Courts. With a few clicks of the mouse court officials — attorneys, judges, clerks — and their staffers can make a document secret with little oversight.
By contrast, attorneys seeking to keep records secret when filing by paper must obtain an order from a judge to seal a record, a process that requires notice and an opportunity for any interested party to intervene.
It’s unclear how many documents have been so easily sealed across Maryland under an apparent loophole that debuted along with the electronic system’s rollout in 2014. But the potential lack of transparency The Capital identified has prompted some experts in open government and law to call for a review of the feature.
“There’s a lot of important information that only comes to light through court cases, and having an open court system is an important part of a democracy where things can’t be hidden,” said Paul Bland, executive director of Public Justice, a nonprofit organization that among other issues, advocates for open courts. “If all that information can be easily sealed, then we become a much more secretive and closed down society.”
But in a case involving the murders of five Capital Gazette journalists, which has drawn intense public and media interest, it would appear that an unusual number of documents have been kept from the public, said Peter O’Neill, a veteran defense attorney based in Glen Burnie.
Charles Bernstein, a defense attorney and retired Baltimore City Circuit Court judge, has a different take. He said this mass murder trial is unique, involving an unprecedented attack on an American newsroom, so it’s impossible to say whether the number of sealed records is unusual or improper.
“Nothing compares with it.”
The man who murdered Gerald Fischman, Rob Hiaasen, John McNamara, Rebecca Smith and Wendi Winters pleaded guilty in October. Jarrod Ramos says he was insane at the time of the 2018 killings, and a jury will decide later this year if he was criminally responsible.
Rules created by the Maryland Judiciary for electronic filing allow attorneys to circumvent the more extensive legal process for sealing court documents.
The Administrative Office of the Courts does not monitor the use of this feature, said Terri Charles, a spokeswoman for the office, which oversees the Maryland court system.
“I think it’s a loophole that probably needs to be examined further,” O’Neill said. “I think additional criteria needs to be in place to make sure that it’s being utilized consistent with the Maryland Rules of Procedure."
A new system
The Capital Gazette and Baltimore Sun, which are owned by Baltimore Sun Media, have filed a motion asking Circuit Court Judge Laura Ripken to unseal most of the file. The newspapers’ attorney, Nathan Siegel, argued in a motion that sealing the records, for the most part, goes against the principles of the First Amendment of the Constitution and Maryland law.
Siegel’s filing said the U.S. Supreme Court long ago established the public’s right to attend court proceedings and review associated records.
A judge must find a “special and compelling reason” to seal court records, Siegel wrote. “In short, sealing court records is intended to be the rare exception, especially in cases of enormous public interest like this one.”
Ripken has scheduled a Tuesday hearing to determine which records — if any — should be made available to the public.
The Maryland Electronic Courts process for filing sealed documents is active in 21 jurisdictions and about to grow, with courts in Montgomery County to transition by Oct. 21, and Prince George’s County in 2021. Baltimore City’s date is yet to be determined, Charles said. The Maryland Judiciary has spent approximately $34 million on software and licensing for the system.
Under the traditional paper system, a person must file a motion to seal a document, which alerts people involved in the case and is available to the public and the document is automatically sealed temporarily for five days. The presiding judge may issue a temporary sealing order before a permanent ruling. People interested in the case can object.
In the jurisdictions that have gone electronic — Anne Arundel was the first to make the shift in 2014 — attorneys can still opt to file a motion to seal a document and follow the traditional route.
But there’s an easier way, rendering those steps superfluous. When somebody filing a document designates it as “confidential" it is kept from the public with little review.
O’Neill said the electronic record-keeping system has benefits for attorneys, including access to “a treasure trove” of information about their clients from their computers and the power to file papers any time, regardless of court hours. “It’s significantly revolutionized the orderly administration of criminal cases.”
Judge John P. Morrissey, chief judge of the District Court for Maryland and co-chair of the committee that oversees the electronic system, declined through a spokeswoman to be interviewed, citing the ongoing Capital Gazette trial.
Confidential filing is not unique to the Capital Gazette case. But it’s difficult to compare with other cases given the large number of documents entered in this one, which has been ongoing since June of 2018.
The rules for the electronic system outline what a filer should do if they want a document sealed, how long to retain records and more.
But nowhere in the dozens of rules that apply to electronic filing — drafted by judges, lawyers and lawmakers, and adopted by the state’s top court — is there a mention of the word “confidential” or this particular feature.
A manual created by the judiciary, offering instructions for electronic filing, covers many areas, including steps for selecting whether the public will be able to see a document. The judiciary says Maryland laws and judicial rules determine what types of documents and information should be kept secret.
“Do not automatically select Confidential,” the manual says, in bold. “A document is public unless confidential by rule or statute."
No real checks
It’s unclear if any statutes, created by the Maryland General Assembly, address Maryland Electronic Courts.
Federal and Maryland law on court filings is predicated upon transparency and access to court records, which helps the public trust the decisions made in court and the process of the judicial system, said Andrew Alperstein, a Baltimore-based defense attorney and former prosecutor.
Pre-sentence investigations, medical documents, the addresses of witnesses, informant information and psychiatric information or reports are among the types of information that are supposed to be shielded, Alperstein said. He added that courts have recognized what he described as an epidemic of identity theft, and judicial rules require attorneys, barring extraordinary circumstances, to keep secret Social Security numbers and medical or financial account identifiers.
It is nearly impossible to determine what has been sealed in the Ramos case because there are few court orders or motions requesting that the information be kept from public view. When something is filed confidential, a clerk enters it into the case file and the public can usually see on a courthouse computer that a document has been filed. But they cannot open the document and do not know what it’s about.
And without knowing at least in part what’s in a document, it’s tough to raise a challenge about whether it was sealed appropriately, Bernstein said. “It is a conundrum: ‘I want to challenge this, but I don’t know what’s in it.’”
According to data from the Maryland Judiciary, obtained by The Capital through a Public Information Act request, 994 of 1,465 documents in the Ramos case were labeled confidential as of Dec. 27.
The Anne Arundel County State’s Attorney declined to comment through a spokeswoman, and a spokeswoman for the Office of the Public Defender did not respond to a request for comment.
One of two potential checks on confidential filing in Maryland Electronic Courts jurisdictions is the opposing attorney or attorneys. If a prosecutor filed something as confidential, a defense attorney could object. All attorneys involved in a case have access to documents filed confidentially. They can see that which the public cannot.
“This is probably OK because if the other side objects it can be taken to a judge for a ruling,” Bernstein said. “If the other side does not object, there is something to be said for leaving it alone.”
But in general, lawyers involved in a case are more likely to seek that court records remain sealed and are unlikely to raise an issue with a document filed this way, attorneys said. They argue too much information in the public can prejudice a jury pool and jeopardize a defendant’s right to a fair trial.
“You’re not going to get resistance from the defense to classify something as confidential, because it’s in your best interest to keep it confidential,” O’Neill said. “The defense does not have any interest in ensuring that the public has free access to information in a criminal file…
“If the state wants something to be confidential, I can’t imagine a scenario where the defense wouldn’t want that.”
The Morning Sun
Scott Poyer, clerk of the Circuit Court for Anne Arundel County, can affirm as much, anecdotally. He said his staff has rarely, if ever, seen such an objection.
Clerks are tasked with reviewing all electronic and paper filings, and Poyer said his staff processes approximately 75,000 documents a year. When attorneys or their staff members file, Poyer’s team ensures the documents meet a few requirements, such as having the correct case number, the filer’s email address and that electronically scanned documents aren’t blurry.
The rules do provide a second potential check, as clerks have permission to go against the designation of a filer. It’s not clear whether that’s a practical check on the filer’s authority.
“Clerks don’t make judgment calls as far as the merits of something should or should not be confidential; we’re checking: Does this document meet the filing requirements?” Poyer said.
“We process the paperwork.”
With such a high-profile case and five potential life sentences at stake, judges are likely to err on the side of keeping records sealed to ensure that defendants’ rights are protected and to diminish their chances of appeal, attorneys said.
“If I’m sitting there as a judge, I’m thinking, ‘I understand the public’s got a right to know, but they may not have the right to know everything immediately...’” Bernstein said. “I’d be thinking ‘If I let this out, is this going to hurt the second part of the trial?’”