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Miami—In a case that is being closely watched by civil libertarians, journalists and the criminal defense bar, lawyers for convicted Colombian narcotics boss Fabio Ochoa have attacked his 2003 conviction partly on the ground of federal court secrecy practices. A key issue in recent oral arguments before the 11th U.S. Circuit Court of Appeals in Atlanta was the constitutionality of secret court dockets that federal judges in South Florida and Atlanta have used to hide the existence of some civil and criminal court cases. Judge Rosemary Barkett expressed strong concerns about the use of secret dockets. She wanted to know how one of the potential witnesses for Ochoa, Nicholas Bergonzoli, came to be convicted, sentenced and imprisoned in total secrecy in U.S. district court in Miami in 2002. “Who authorized that?” asked Barkett, who led the three-judge panel that is considering Ochoa’s appeal. “I’ve never heard of such a thing.” Evidence ‘bottled up?’ In seeking a new trial for Ochoa, Miami attorneys Roy Black and G. Richard Strafer contended that federal prosecutors bottled up evidence favorable to their client by convincing judges to conceal, in whole or in part, drug cases involving potential witnesses for Ochoa’s defense. Prosecutors sought such extraordinary secrecy, they argue, to hide a U.S. government-led extortion scheme against their client. Besides asking for a new trial, Ochoa’s defense wants the 11th Circuit to declare unconstitutional, on First Amendment grounds, “nonpublic” docketing systems that block access to court records by the news media and public. In Ochoa’s case, they said, such denial of access led to additional violations of Ochoa’s constitutional rights under the Fifth and Sixth amendments by denying him the ability to prepare his defense adequately. The defense lawyers are also seeking a court order unsealing all documents and hearings involving the extortion scheme that authorities have insisted was run without their knowledge by a renegade informant. Assistant U.S. Attorney Emily M. Smachetti did not defend the government’s secrecy practices in the Ochoa and related cases. And in response to Barkett’s question about the secrecy of Bergonzoli’s case, Smachetti said “it was supersealed originally and never got unsealed.” Supersealing is a relatively new word in the legal lexicon that describes the total eclipse of entire cases or individual pleadings by keeping everything about them-even case and docket numbers-secret. “Who made the decision to seal?” asked Judge B. Avant Edenfield, a visiting U.S. district judge from Savannah, Ga., serving on the 11th Circuit panel. “I think the prosecution asked for the seal,” Smachetti said. She argued that secret dockets had no impact on Ochoa’s case. “The problem was the indictment wasn’t just put under seal, it was removed from the docket.” Ochoa was one of 33 persons indicted in 1999 as part of an investigation into Colombian drug trafficking called Operation Millennium. He was extradited to the United States in September 2001, and later stood trial alone under heavy security. U.S. District Judge K. Michael Moore, in Miami, sentenced Ochoa to 365 months in August 2003 following his conviction on various drug conspiracy charges.

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