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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 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?” asked Randall Marshall, legal director of the ACLU 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 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.” “Let’s just hope they follow their own rules from now on,” said Lucy Dalglish, 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 celebre among defense, civil liberties and news media organizations after the Daily Business Review 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 actually were filed with the court. Criminal defendants lose the protection of public knowledge of their case. Without court information, there is no way for the public and the news media to hold the courts, prosecutors and parties accountable for their actions. And the public and the news media are deprived of information that could trigger public discussion of important public policy issues, such as the appropriateness of government national security actions. 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 M. Middlebrooks, K. Michael Moore, William P. 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 F. 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 said. “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 said 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. He was sentenced to 365 months in prison. Ochoa’s Miami attorneys, Strafer and Roy Black, argued that their client’s prosecution was part of a corrupt government “program” to induce major Colombian drug traffickers to surrender by selling them advance “sentence reductions.” The 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 case was entirely sealed for years until Moore unsealed parts of it in 2003 following an article about the sealing in the Daily Business Review. One of the issues raised by Ochoa’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’s conviction by a 2-1 vote, with Judge Barkett dissenting. Barkett sided with the defense on the issue of anonymous juries, another matter raised by the defense to argue that Ochoa did not receive a fair trial. On the other hand, all three judges spanked the judges of the Southern District of Florida for engaging in secret docketing. The panel ordered dockets and files in the case unsealed. (Strafer expects the few remaining unsealed files in the Ochoa case to be automatically unsealed once the 11th Circuit clerk issues an official mandate. He said he expects some significant documents to be among those still unsealed, including one detailing the government’s sentence reduction scheme.) The panel noted that the 11th Circuit previously held secret dockets illegal in a 1993 decision, U.S. v. Valenti, that focused on a case of secret docketing in the Middle District of Florida. That case involved a federal judge in Tampa who had sealed docket entries in a political corruption case. While the 11th Circuit now has forbidden the secret docketing of cases, free press advocates and defense lawyers have raised concerns about secret dockets possibly being used throughout the country, particularly since the Sept. 11 terrorist attacks. The government has detained hundreds of people in secrecy in connection with terrorism-related investigations, without any record of their being held under warrant. In a very different type of case, secret dockets have been used by some courts to shield celebrity divorce cases from the press and public. And secret dockets have been used to hide the existence of cases in which lives of cooperating witnesses who plead guilty to crimes may be in danger. The Washington Post recently reported that the Department of Justice has tried to conceal the existence of the first known lawsuit against the government about a “national security letter” Such letters were created in the 1970s to allow the government to quietly search private and consumer records in espionage and terrorist investigations. Since the Patriot Act, their use has been broadened and groups like the ACLU allege the government has been using them to surveil people not accused of terrorism or spying. But the U.S. Supreme Court and the lower courts, including the 11th Circuit, have found that public access to court records and proceedings is a guaranteed freedom under both common law and the First Amendment. In practice, however, these rights are balanced against other interests, including national security, personal safety and privacy, and trade secrets. The 11th Circuit held in the 1993 Valenti case that secret docketing in the Middle District of Florida violated the press and public’s First Amendment right of access to criminal proceedings and declared it unconstitutional. The court held the public docket sheets are essential to provide “meaningful access” to criminal proceedings. “Thus we held that the press and public’s qualified First Amendment right to access criminal proceedings extends to the proceedings’ docket sheets,” stated the panel. That ruling stated that the court can seal dockets and proceedings only 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 public and press who are present must be given an opportunity to be heard on a proposed closure, the court added. PROTECTION ISSUES In the Ochoa case, the U.S. attorney’s office and attorneys for Ochoa co-defendants convinced South Florida federal judges and magistrates to seal entire dockets in the cases. They argued that the cooperating defendants’ lives would be endangered if their identities were revealed. In 2003, the Review reported that one defendant in the government’s drug prosecution, Nicholas Bergonzoli, who was identified in court papers as the intermediary for the government program, was convicted of conspiracy and sentenced to 39 months in prison. There was no court docket or record of the case. Ochoa’s defense team, including Roy Black, first shed light on the secret cases when they sought to open the Bergonzoli dockets and records. The lawyers wanted to use information about witnesses against Ochoa in his defense. After Black filed motions seeking to unseal the dockets and documents, Judge Moore unsealed the docket and most of the documents in one of the cases. Only a few documents are still sealed. Asserting his First Amendment right of access as a member of the public, Ochoa had asked the district court to unseal files in seven cases, and challenged the use of secret docketing in three of those cases. Ochoa pointed to entries in the court record that revealed an “ad hoc system under which the district court sealed judicial proceedings, records, and entire criminal cases from public scrutiny,” according to the 11th Circuit decision. In his appeal, Ochoa asked the 11th Circuit to unseal the entire Ochoa case file. According to the 11th Circuit ruling last month, Ochoa’s lawyers uncovered at least two instances where orders and transcripts of proceedings concerning Ochoa co-defendants were kept from the public docket. Besides the Ochoa and Bergonzoli cases, Ochoa sought access to records in U.S. v. Correa-Valdez, in which Judge Middlebrooks presided; U.S. v. Ramon, in which Judge Shelby Highsmith presided; U.S. v. Escaf de Saldarriaga, in which Judge Seitz presided; U.S. v. Prado, in which Judge Dimitrouleas presided; and U.S. v. Springette, in which Judge Dudley H. Bowen of the Southern District of Georgia presided. The panel said that in the Ochoa-Vasquez case, magistrate judges kept orders and transcripts or proceedings from the public docket in at least two instances relating to a co-defendant, Orlando Sanchez-Cristancho. At Sanchez’s initial appearance hearing, both the government and Sanchez’s Miami lawyer, Joaquin Perez, asked Magistrate Judge Lurana Snow to seal the order and transcript. The judge consented. Perez, a defense attorney who specializes in defending accused Colombian drug lords, frequently asks for his clients’ cases to be sealed in order to protect their safety. The transcript reads as follows: The court: � Anything else that I’ve left out? Sanchez’s counsel: Judge, there’s just� Government: There’s the matter of docketing. Daniel Forman [a defense attorney]: There’s just one administrative matter. The court: My feeling is that you just work that out however you can. I don’t know what to do with it, if you want to — me to defer, I guess I could verbally order that — that the clerk retain custody of these documents and that they be filed either on Wednesday or however [Magistrate] Judge Vitunac orders it, and that they be held in the vault and not docketed. Government: That would work for us, Judge. Sanchez’s counsel: That works, your Honor. The court: � So I guess they can just put it in the vault. Government: That’s fine, Judge. The court: — without docketing. Perez did not return calls for comment. Magistrate Judge Snow’s assistant said the judge never speaks to the press. ‘ABERRATIONS’ Federal judges interviewed by the Review and the U.S. attorney’s office insist the Ochoa and Bellahouel cases are the only secret docketing cases that exist in the Southern District of Florida, and that this practice no longer takes place in South Florida federal courts. “These were aberrations,” said Thomas J. Mulvihill, first assistant to the U.S. attorney, who’s a finalist for the U.S. attorney position. “We don’t request secret docketing.” “We will comply with the court’s orders,” added USAO spokesman Matt Dates. Judge Seitz said she “would be surprised” if any more dockets were being closed in the Southern District of Florida. “That would be news to me,” she said. But others aren’t so sure. Strafer said he believes there are other cases, but he can’t identify any. Richard Klugh, an appellate lawyer with the federal public defender’s office in Miami, which represented Bellahouel on appeal, said he doesn’t know whether the government is still detaining terrorism suspects under secret “material witness warrants” — as it did with hundreds of people after the Sept. 11 attacks. “That has died down,” he said. While Federal Public Defender Kathleen Williams has taken a strong stand against secret docketing, some defense attorneys occasionally favor secretly docketing their clients’ cases and are willing to enter into secret agreements with prosecutors. That’s because some detainees and defendants feel their lives will be endangered if word gets out that they may have cooperated with prosecutors. Or they worry their reputations will be damaged if others learn about their legal problems. Indeed, Michael Pasano, a criminal defense lawyer and partner at Zuckerman Spaeder in Miami who chairs the criminal law section of the American Bar Association, calls the question of secret dockets “a delicate issue.” “It goes on from time to time in South Florida and around the country,” Pasano said. “Sometimes the defense lawyers want it and the press and public are against it. No one is going to say it’s a good thing. Secret is a bad word. But we sometimes need to protect our clients’ reputation and protect witnesses from harm.” Seitz, however, said she’s had a dramatic change of heart about supersealing cases. She had inherited the Bergonzoli case from former Southern District of Florida Chief Judge Edward B. Davis when he retired. Prosecutors, she said, convinced her that sealing the docket was necessary to protect Bergonzoli’s personal safety. “These were people of good motive,” she said. “But the 11th Circuit said there were other ways to accomplish the same purpose.” “One of our strengths in this country is public records,” she added. “The 11th Circuit’s opinion underscores that. It reminds us of the importance of public disclosure.”

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