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Miami-Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing them 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. The panel’s ruling 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 A. Seitz, a seven-year veteran of the federal bench in Miami, 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 other observers say it may still be happening. “How would you know?” asked 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.” Altered computer records There is also another reason for concern about whether the federal courts have come clean on the secret-dockets issue. In U.S.A. v. Juan Nicholas Bergonzoli and Fabio Ochoa-Vasquez, released on 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 M. 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 living in Deerfield Beach, Fla., Mohamed Kamel Bellahouel, who was detained in a terrorism-related investigation. U.S. District Judge Paul C. 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 the case to briefly appear on the court’s computer record. “There are some ironies to this,” said G. Richard Strafer, a Miami appellate attorney who represents Ochoa. “[The 11th Circuit judges] certainly don’t address their own use of secret dockets and opinions.” Several 11th Circuit judges did not return calls for comment. Nor did William J. Zloch, chief judge for the Southern District of Florida. The Daily Business Review, a sister publication of The National Law Journal, 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 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 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. 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. 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 M. Middlebrooks, K. Michael Moore, William P. Dimitrouleas and Shelby Highsmith. Moore declined to comment for this article, and Middlebrooks did not return calls for comment. Huck said he couldn’t comment because the matter is pending, but he wasn’t aware of any secret docketing still taking place in South Florida’s federal courts.

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