Tags: sunshine law | public records | court documents | Colorado | Nathan Dunlap | PACER | access

Federal Clerks Provide Inaccurate Info on Court Documents

By    |   Tuesday, 17 March 2015 04:59 PM

Federal law clearly says that payment vouchers to outside attorneys acting as public defenders should be available to the taxpayers who pay those bills — especially after all legal appeals are exhausted.

After a case is complete, the "court shall make available to the public an unredacted copy of the expense voucher," Title 18 3006A states in Section D.

But when Watchdog.org asked for the vouchers in the case of Colorado multiple-convicted-murderer Nathan Dunlap, a clerk answering the phone and a different employee at the clerk’s office both said those Criminal Justice Act (CJA) vouchers are never public.

Trying to access them on the court’s public records system, PACER, yielded only the phrase "You do not have permission to view this document."

Dunlap exhausted all of his appeals two years ago, but the records were not readily available.

Only after appealing to head clerk Jeffrey Colwell was Watchdog.org able to get a summary of expenses for Dunlap’s case. That summary resulted in a story uncovering nearly $200,000 charged to taxpayers for attorneys, consultants, professors, and even a PR person up to two years after the U.S. Supreme Court turned down Dunlap’s final appeal.

Gregg Leslie, legal defense director at the Reporters Committee for Freedom of the Press, said courts often make their own rules even when there’s a federal law.

"Unfortunately, it is a fact that court administrators do things the way they want," he said. "If Congress enacted a law, they should not have a practice that is counter to that."

Colwell conceded that his clerks need to be trained to let people know they can obtain voucher information.

"I’m not going to make a ton of excuses for my people," Colwell said. "While they’re not publicly available on the docket, people can send in a request and we will provide them a copy."

Colwell pointed out the law opening the vouchers expired or sunsetted around 2000, but the federal judicial department adopted a series of rules regulating release of the information about taxpayer payments to attorneys.

The judicial rules say the vouchers should be released unless a court determines the information violates the right against self-incrimination, the attorney client privilege, work product, a person’s safety or any other interests that justice may require. The documents can also be denied if they reveal strategy, privacy, or hurt effective counsel.

But George Brauchler, 18th Judicial District Attorney whose office prosecuted Dunlap, said any privacy and strategy concerns should disappear after all proceedings are completed, and taxpayers should see what they’re paying.

The law "provides for redaction of certain information at certain stages of the proceedings — and there is justification for redaction to protect strategic decisions — but what’s the reason for secrecy now?" he asked in a phone interview with Watchdog.org last month about the Dunlap case. "There’s no ongoing litigation."

A spot check of dozens of concluded death penalty case shows different districts handle the payments in different ways despite all falling under the same federal law and judicial rules.

In Ohio, for example, many vouchers were readily available on PACER, listing hours, expenses and various details of what the attorney or investigator did to receive the taxpayer money.

In the case of Arthur Tyler, there were vouchers detailing more than $100,000 of expenses to fight his execution. The governor eventually granted him clemency.

A couple of the most recent vouchers weren’t available, but nearly all amounts from the early 2000s were provided both in the docket report summary and in the full unredacted voucher.

In Texas, however, none of the vouchers were available. But a court clerk emailed the documents when Watchdog.org requested them. She wrote the vouchers aren’t available on PACER because the computer system can’t distinguish when a case is completed to release the records automatically.

In Colorado, a few of the files included the voucher forms, but all of the amounts on the forms were redacted. That goes directly against the law, which says even before a case is complete to "make public only the amounts approved for payment to the defense counsel by dividing those amounts in the following categories."

Colwell said his computer system is set up so the attorneys file the vouchers, which are public, and the backing materials, which are not public, together — so he can’t make that information available on PACER as it will contain nonpublic documents.

But Leslie said courts often seal information that the public should have to make decisions about the court and government functions.

"We see this a lot of times in other context," he said. "Sealing should be done only when there is a compelling state interest and justification and the court solution is to narrowly tailor it, but we see all the time the court sealing information that shouldn’t be sealed."

Attorneys and the courts say taxpayers are safeguarded because the judges review the vouchers before paying them, but Watchdog.org found that check and balance isn’t always effective in protecting taxpayers.

George Rivas, who led the "Texas 7" prison escape that resulted in the death of a police officer, was executed Feb. 29, 2012. His attorney, Mick Mickelsen, filed a request for payment with the court for work done in April 2012 — two months after his client was executed, vouchers obtained by Watchdog.org show.

The judge approved the payment, but Mickelsen said it was a "data input error" and the work he billed taxpayers for was actually done in November 2011.

Mickelsen previously told Watchdog.org that judges look closely at the vouchers to make sure there are not any improper payments, but he conceded his April 2012 request slipped past the judge.

"I think the issue about the judges looking over this stuff carefully is nuanced," he wrote in an email exchange. "If a voucher is submitted for an amount over the presumptive limit it gets looked over carefully. If the voucher is below the presumptive limit it only gets a cursory glance. I don’t think a bill for $1,700 for a clemency petition would have been looked at carefully. If it had been for $17,000, it would have been."

Leslie said there has always been a problem with transparency at the state and federal courts.

"The only recourse is going to the same people who decided to seal it in the first place, and that puts the media in that position all the time of going to the judge and saying you were wrong," he said.

The national court administrator, through a spokeswoman, declined an interview about the discrepancy of practices among federal district clerks.

Colwell said he checked with a few districts and found they have similar rules at the district based in Denver but believes his discussion with his staff will ensure the attorney payment vouchers are available to anyone who requests them.

"Each district handles [the vouchers] slightly differently," he said, adding Watchdog.org’s Dunlap request was the first time anyone asked for the vouchers in the two years he served as clerk. "We adopted procedures that have the same effect and are consistent with the law."

Arthur Kane is an investigative reporter who covers Colorado and Oklahoma. You can follow him at @ArthurMKane. If you have tips or investigative ideas, email him at akane@watchdog.org.

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Federal law clearly says that payment vouchers to outside attorneys acting as public defenders should be available to the taxpayers who pay those bills — especially after all legal appeals are exhausted.
sunshine law, public records, court documents, Colorado, Nathan Dunlap, PACER, access
Tuesday, 17 March 2015 04:59 PM
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