Federal judges change rules to allow public to view records

News-DemocratJanuary 11, 2014 

— A recent rule change by federal judges allows the public to get a rare view into federal agents' work, such as the drug investigation into former St. Clair County Judge Michael Cook and the corruption probe into the village of Alorton.

In August, the four U.S. District Judges met and approved a rule making federal search warrant applications public.

When police or federal agents apply for a federal search warrant, they prepare an affidavit that outlines their investigation and asks for a judge's order allowing them to search a premises, obtain phone records or conduct specialized surveillance. This affidavit is presented to a magistrate judge. After the search is conducted, agents must prepare a return along with the inventory of items seized. Those documents are then filed with the clerk.

"By direction that these materials are to be filed with the Clerk of the Court, (the federal law) contemplates that these documents will be made public," the order stated.

But often those documents are sealed, so as not to compromise an ongoing investigation.

"Unfortunately, it is difficult for people to remember to release a file from sealing to allow transparency once the need for secrecy has passed. So the judges of this Court continued to search for ways to ensure transparency despite this natural tendency to allow the status quo to prevail. This automatic unsealing with a need to assertively seek an extension to seal and provide just cause hopefully will be the answer," said U.S. District Judge David Herndon, who was chief judge of the district when the order was signed on Aug. 12.

Federal prosecutors can ask for an extension of the seal, but must give a judge the reason those affidavits should remain cloaked from public view.

"The goal is to balance the right of the public and the taxpayers who support our justice system to have access to all information subject to certain limitations as not disrupt an ongoing investigation or disclose grand jury testimony unless it is ordered by a court," said U.S. Attorney Stephen Wigginton, who supported the move.

This rule allowed the public for the first time to see details of investigations, such what confidential informants said or saw, results of surveillance, witness statements, phone contacts as well as items taken during those searches.

A search warrant released in the Cook case showed federal agents discovered more than 2,000 calls between Cook and Sean McGilvery, the man identified as Cook's main heroin source. The calls were made between March 2012 and March 2013. The search warrant also revealed that Cook and McGilvery made contact within five minutes of McGilvery talking to FBI agents on March 4, 2013.

In public corruption cases, the affidavits can provide insight to the public about their elected or appointed public servants. In the search warrant application for then-Alorton Mayor Randy McCallum and then-Police Chief Michael Baxton, the federal agent stated McCallum directed village police officers to steal from rival drug dealers, doled out tax-increment financing funds with expectation of kickbacks while Baxton told his officers to keep their mouths shut about game consoles taken to his home instead of placed into evidence.

Baxton received a year in federal prison for the theft of the Xboxes.

"I'd like some of the public corruption cases to come to trial so they public could hear how these people sound on the secret tapes," Wigginton said. "They could hear their public persona and their thug persona."

Contact Beth Hundsdorfer at bhundsdorfer@bnd.com or 239-2570.

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