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Last month a three-judge panel of the U.S. Court of Appeals for the 11th Circuit chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. “We . . . exercise our supervisory authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional,” the panel said in its unusual reprimand. Defense attorneys, civil liberties groups, and the news media celebrated the panel’s words, which came in the course of upholding a drug lord’s conviction and sentence of more than 30 years in prison. Now, one of the South Florida federal judges who agreed to hide a case admits that she made a mistake and vows never to do it again. “Judges are not gods,” U.S. District Judge Patricia Seitz, a seven-year veteran of the federal bench, said in an interview. “Like any human being, we make mistakes. When your mistake is pointed out, you reconsider your action and you promptly make a correction.” But while Seitz, who sits in Miami, said she would be “surprised” if any more cases now are being supersealed in the Southern District of Florida, other observers say it may still be happening. “How would you know?” asks Randall Marshall, legal director of the American Civil Liberties Union of Florida, which filed an amicus brief in the 11th Circuit case. “There could be others, definitely.” There is also another reason for concern about whether the federal courts have come clean on the secret-dockets issue. In its 84-page ruling in U.S.A. v. Juan Nicholas Bergonzoli and Fabio Ochoa-Vasquez, released Oct. 20, the 11th Circuit panel failed to acknowledge that the appellate court itself was deeply implicated in secret docketing. The opinion was written by U.S. District Judge B. Avant Edenfield, a visiting federal judge from Savannah, Ga. Judge Frank Hull concurred. Judge Rosemary Barkett, who is based at the court’s Miami branch, wrote a lengthy separate opinion in which she partly concurred and partly dissented. Two years ago the 11th Circuit kept secret a docket and opinion in the habeas corpus case of a young Algerian waiter, Mohamed Kamel Bellahouel, who was living in Deerfield Beach, Fla., and who was detained in a terrorism-related investigation. U.S. District Judge Paul Huck in Miami originally had sealed the case and ordered it kept off the public docket — without ever issuing an order to explain the compelling government interest for doing so. Bellahouel appealed. The 11th Circuit’s computer records then were altered to remove any information about the case. And an 11th Circuit panel in Miami closed its courtroom to the public and the news media in March 2003 to hear arguments in the supersealed case — even keeping the names of Bellahouel’s attorneys under wraps. The case only came to light because 11th Circuit clerks mistakenly allowed information about it to appear briefly on the court’s computer record. “There are some ironies to this,” says G. Richard Strafer, a Miami appellate attorney who represents Ochoa-Vasquez. “[The 11th Circuit judges] certainly don’t address their own use of secret dockets and opinions.” “Let’s just hope they follow their own rules from now on,” says Lucy Dalglish, the executive director of the Arlington, Va.-based Reporters Committee for Freedom of the Press, which filed an amicus brief in the case. Several 11th Circuit judges did not return calls for comment. Nor did William Zloch, chief judge for the Southern District of Florida. DISCLOSURES IN 2003 Secretly docketed cases became a national cause c�l�bre among defense, civil liberties, and news media organizations after the Daily Business Review, a sister publication of Legal Times, first reported two supersealed cases in South Florida in early 2003. The supersealing issue subsequently went up to the U.S. Supreme Court for consideration, with the case file publicly available only in heavily redacted form and even the name of the appellant missing. The high court declined to hear the case last year. In March 2003 the Daily Business Review disclosed the existence of the Bellahouel case in the Southern District of Florida. It was not listed on the public court docket. The Review later found a second case, that of Nicholas Bergonzoli, who had been convicted on a drug offense and sentenced to 39 months in prison. In both cases the public court docket and court record contained no case number, no parties, no facts, no judge, no attorneys, and no documents that were publicly accessible. Bellahouel objected to the supersealing, but he and his attorney were placed under gag orders. Secret docketing makes it virtually impossible for anyone not involved in such cases to know of their existence. Even parties involved in the cases sometimes could not obtain copies of certain matters or access the docket so they could assure themselves as to what documents were actually filed with the court. While there are established procedures in the federal system for sealing information in a publicly docketed case on an individualized basis, there is no procedure for removing a case from the public docket and placing it in an alternative, deep-cover docket. The 11th Circuit panel wrote last month that “The orders sealing specific documents in Ochoa-Vasquez . . . violate First Amendment standards because no finding was made on the record to rebut the presumption of openness. A party may overcome that presumption if it can show �an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ “ The panel added that the court must provide the press and the public who are present with notice and an opportunity to be heard on the proposed closure. The Ochoa-Vasquez court, however, did not articulate the reasons for the closure or the evidence that supported the need for the closure, the panel found. Why the federal judges involved in these cases were willing to impose such extreme secrecy without proper procedures remains unclear. The judges included U.S. District Judges Huck, Seitz, Donald Middlebrooks, K. Michael Moore, William Dimitrouleas, and Shelby Highsmith; Magistrate Judges Lurana Snow and Ann E. Vitunac; and the three appellate judges who voted in secret in March 2003 to keep Bellahouel’s case sealed, Stanley Birch Jr., Ed Carnes, and Procter Hug Jr. Moore declined to comment for this article, and Middlebrooks did not return calls for comment. Huck said he could not comment because the matter is pending but that he was not aware of any secret docketing still taking place in South Florida’s federal courts. Despite the irony — some critics say hypocrisy — of the 11th Circuit ruling, experts say the opinion is significant in reaffirming the constitutional importance of a transparent court system. “We’re certainly pleased with the clear direction from the 11th Circuit that having a secret docket is not permitted under the Constitution,” the ACLU’s Marshall says. “The 11th Circuit declared presumptively that dockets should be made public and that there is a burden on a party that wants to seal any record to show a good reason.” Dalglish says she was pleased with the “wonderful and startling” opinion and hopes it will have a positive effect on courts throughout the country. “You can bet it will be cited in cases being brought around the country. Still, I’m not optimistic. We’re in a very, very bad environment now with government secrecy.” Even now, Bellahouel’s appellate case remains hidden from the public. A search of the electronic federal court database shows no case involving a Bellahouel either in the Southern District of Florida or in the 11th Circuit. Last month’s 11th Circuit ruling arose from the May 2003 drug conspiracy conviction in U.S. District Court in Miami of former Medellin drug cartel boss Fabio Ochoa-Vasquez. Ochoa-Vasquez’s attorneys identified several federal drug defendants in South Florida who were “intermediaries” in that alleged bribes-for-deals scheme but whose drug cases were sealed by the courts. Two of those men were Julio Correa, now missing and presumed murdered, and the imprisoned Nicholas Bergonzoli. Most of Correa’s case was sealed; Bergonzoli’s was entirely sealed for years until Judge Moore unsealed parts of it in 2003 after an article about the sealing in the Review. One of the issues raised by Ochoa-Vasquez’s attorneys in their effort to get their client’s sentence overturned regarded the secret docketing of his and several related cases. The attorneys argued that court secrecy in the Bergonzoli and Correa cases blocked effective access to a potentially important defense witness who could testify about the government’s corrupt sentence-reduction scheme. Last month, however, the 11th Circuit panel upheld Ochoa-Vasquez’s conviction by a 2-1 vote. All three judges spanked the Southern District of Florida judges for engaging in secret docketing. The panel ordered dockets and files in the case unsealed.
Julie Kay is a staff writer for the Miami Daily Business Review , the ALM publication where a version of this article first appeared.

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