Are plea agreements secret?


Key_Steve_webSome trial court judges may be keeping rejected plea agreements secret.

I suggest editors have a conversation with whoever is covering the courts to determine what your circuit and superior court judges are doing in your coverage area.

Inconsistent treatment of plea bargains prior to judge acceptance arose from interpretation of I.C. 35-35-3-3(b). The code states that the content of plea agreements shall not be part of the “official record” of the case unless the judge accepts the agreement submitted by the prosecutor.

The policy argument for secrecy is that public disclosure of the rejected plea agreement could make it more difficult if potential jurors assume the defendant has admitted guilt by signing the agreement the judge rejected.

Does “official record,” mean that the plea agreement is confidential until approved? If rejected, does it remain confidential? If confidential, prosecutors would need to file the plea agreements on green paper, so court clerks know it is a confidential record, not to be shared with reporters or the public.

Fortunately, the Records Management Committee of the Indiana Supreme Court recommended that the Division of State Court Administration send trial court judges a message that plea agreements should not be filed on green paper.

Some judges who read the statute in question equate “shall not be part of the official record” as “confidential.” A message saying the plea agreement isn’t filed on green paper, may not in itself convince those judges that your reporter has the right to inspect and/or copy the plea agreement when it’s filed – before any decision by the judge to accept or reject it.

The newspaper may need to proactively seek a change in the judge’s policy.

Secret rejected plea agreements would hamper the public’s ability to monitor the work of elected prosecutors and trial court judges. Individual or multiple rejected plea bargains might indicate an issue.Perhaps the prosecutor is agreeing to terms that are consistently lenient toward defendants that a judge or judges can’t accept in good conscience. The rejections might indicate an apparent difference in how the prosecutor treats minority defendants or defendants in a certain type of crime or crimes.

Conversely, a judge who rejects the plea agreement in a particular case or a pattern of rejections, may indicate a rift between what the judge and prosecutor believe is reasonable for the case or type of cases involved.

If rejected plea agreements are kept secret, the public or press would have no ability to raise questions about the performance of judicial officers.

For defendant’s rights to a fair trial, there are a series of steps in place to protect the defendant. The juror selection process (voire dire) gives both sides the opportunity to weed out prospective jurors who have already made up their minds as to the guilt of the defendant. In a high profile case, the courts may either bring jurors in from outside the county to avoid tainted jurors or move the case to another county if necessary to seat an impartial jury.

If your courts beat reporter indicates he/she has been denied access to plea agreements, then you might schedule a meeting with the judge(s) involved.

Steve Key is executive director and general counsel for the Hoosier State Press Association.