Likelihood of Success

Ron Coleman’s pretty good blog

The perils of transparency

Posted by Ron Coleman on June 7, 2007

Blogger aTypical Joe has posted a piece called “Exposing the plea bargain racket” where he contrasts his reasonable insistence that plea bargains terms be made more public — maybe there should even be a public comment period, too! (I’d like to start with this one) — with the understandable problem of a “Who’s a Rat,” a website that features information about “rats.” “Rats” are what defense lawyers, defendants, and murderous criminals call people who, for whatever reason, cooperate with legal authorities attempting to secure convictions of malfeasors.

I have never liked this terminology, whether applied to informants or people who work for a living without the permission of a union. Like Joe, I certainly understand why a criminal defense lawyer would want to know as much as possible about cooperating witnesses, especially when they have “turned” from the fellow-criminal to the (usually self-serving) friend-of-law-enforcement side. But there’s no question that it is an abuse of this transparency, and one that will inevitably dry up the well of cooperating crooks, to post such information on websites like Who’s a Rat — one of whose purposes must be to get people killed.

Joe hits the nail on the head, saying he’d be glad “for us to learn the difference and distinguish between ‘public’ as in ‘not secret’ and ‘public’ as in “made easily accessible to the world.” This applies to a lot of things — a lot of categories where public information is and should be public, but is not and “should not be” instantly and simultaneously available to everyone all the time. The largest of these categories, I would say, relates to legal proceedings. Courts and legal proceedings should be open and public, yes; but intimate and limitless? That is one reason why, unlike a friend of mine who once lobbied hard trying to lower the hurdles to the insertion of TV cameras into every courtroom, I am against it.  One reason is that cameras badly distort behavior in the courtroom.  But the other is that I do not believe either justice of the public good are served by making the prospect of seeking justice, civil or criminal, an utter surrender of privacy and dignity.

How do we make these distinctions?

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6 Responses to “The perils of transparency”

  1. zach. said

    Ron,

    this is a snarly question. Is there some sort of category of public information which is free and available to obtain for personal use, but illegal to broadcast? Something akin to the government offering free personal use licenses like those on purchased music or movies? is there any precedent for this?

  2. My guess is that this entire area of concern will seem silly and ‘old fashioned’ before to much longer. The ‘MySpace’ Generation is rapidly abandoning the notions of privacy that us old fogeys still hold dear.

  3. Bryan C said

    If the problem here is that bad guys can target people based on public records then I think the solution is to protect those people more effectively, not hide their names and hope for the best. “Security through obscurity” is always an iffy concept; it encourages all sorts of dangerous expectations that are bound to be disappointed. It’s never worked very well in the computer industry, despite lots of elaborate schemes and wishful thinking. Expecting it to work any better in the real world is probably unrealistic.

    If we do really need this public/sorta public distinction (I need more convincing) then we need to do it carefully in order to avoid eroding the legitimate concept of public records. Once something has already been made public then you can’t have people/judges/governments changing their minds later and prohibiting or punishing public distribution. That’s far too easy to abuse. I think the proper place to start is with the laws about what is and is not public data. If enough people really don’t want certain court records, for example, to be public data then they need to work to change the law. I suspect they’d have a hard time justifying and defending such a change, but that’s life.

  4. Dean Esmay said

    I have all sorts of issues with plea bargains, not least of which is that it’s fairly apparent to me that there’s a fair amount of prejudice and discrimination that goes on because of it. The prosecutors basically decide who they really want and give what they consider “the little fish” all sorts of incentives to say things that may not even be entirely truthful but fit the prosecution’s prejudices. Sure, I understand that the defense can question the veracity of the rat, but I don’t trust that very much.

    My biggest complaint is how often we let women defendants off because the prosecution wants the man, and they want the man simply because they figure it’s harder to get a jury to convict a woman of certain crimes. You know how many female drug dealers there are out there for example?

    Ah, forget it. I don’t have constructive suggestions to offer. I get why it works this way, and I don’t know what a better way would be.

  5. Jack said

    Let me use an analogy which might give you ladies and gentlemen a slightly different view of the rat.

    Rats are the criminal equivalent of a turned agent or operative in matters of espionage.

    Yes, many are abysmal individuals, but what they do is also often vital. Not just to an investigation but to saving lives and shortening criminal and terrorist careers.

    Imagine instead do trudging a rat instead you had to employ strictly technical or investigative means to pursue every investigation. Instead of turning a rat you had to emplant an agent or undercover Dick everywhere you wanted to gather HUMINT and criminal Intel.

    Imagine you had to emplace an operative or agent in every Intel agency, organization or foreign embassy you wanted to penetrate or infiltrate instead of turning an informant or foreign operative. the cost would be prohibitive, the return unlikely at best, the danger enormous, the recruitment and training immense (simply to learn the operating foreign culture, language, lingo, work, etc.).

    A rat is already emplaced. He knows the lay, he knows the organization, he knows the culture, he knows the lingo. He teaches you. Your agents and Dicks are not endangered. He can feed your people in, or feed out Intel and info you need. The rat greases the squeaky wheel, he makes the world turn round, he prevents you from having to place yourself or your men in so much danger.

    The rat is a rat to the one he betrays, he is an operative of immense value to the one he assists.

    I don’t like endangering most rats and wouldn’t do it anymore than I would endanger a turned operative.
    I would protect them and exploit them and if necessary extract and secure and reassign them, but I would not intentionally endanger most or allow most to be endangered. Unless they were playing short.

    Rats carry the plague to the other side, but they often carry life to you.
    They are far from perfect, and many really are very petty individuals. Some are completely untrustworthy, and even good ones are squirrelly.

    But if you get a really good rat them feed them and love them and protect them.
    Always be wary, and always remember they bite anyone at any time they get spooked, but if you can get a good one, then let him run and cause all the havoc for the bad guy that he possibly can.
    Let him disease the opposition and infect then enemy, cause that is the way God made em and everything has it’s purpose.

    And if you can then keep him warm and safe and fuzzy.
    You won’t regret it if it’s a rat worth his tail.

    Otherwise, it’s your tail.
    And that seems a fair exchange to me.

  6. Jack said

    “Imagine instead of turning a rat you had to employ strictly technical or investigative means to pursue every investigation.”

    Damned Microsoft..

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