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MIAMI — Chief Judge Federico Moreno of the Southern District of Florida, bucking the wishes of the U.S. Department of Justice, has ordered all plea agreements to be posted online. In an order issued on Jan. 22, Moreno stated that as of Feb. 20, all plea agreements “will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an order in advance directing the sealing or otherwise restricting a plea agreement.” Moreno’s order rescinds a previous order of April 2007 taking all plea agreements offline and making them accessible for physical viewing only at the courthouse. The issue of whether plea agreements should be publicly available, able to be viewed electronically through the PACER system, is a controversial one, pitting prosecutors against defense lawyers and First Amendment advocates. In 2007, the Justice Department asked the Judicial Conference to restrict electronic access to plea and cooperation agreements in order to keep information about cooperating witnesses secret. The Justice Department was concerned about a new Web site, Whosarat.com, which was posting information about all cooperators in federal cases. “We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as whosarat.com for the clear purpose of witness intimidation, retaliation and harassment,” stated the Justice Department’s memo to the courts. The Southern District of Florida, like most other courts around the nation, complied, taking pleas off PACER. But defense attorneys, First Amendment advocates and the federal public defender’s office protested, arguing that the public’s right to know about the court system was being impaired. In 2007, the National Association of Criminal Defense Lawyers passed a resolution opposing the exclusion of plea agreements from PACER. Moreno ordered a study of the situation and held an en banc hearing, with representatives from both the U.S. attorney’s office and defense bar. After the hearing, most of the district judges agreed to rescind the previous order and make plea agreements public again, stated the order. “The sense of the Court is that the public’s interest in access must prevail in this instance and that restricting access to all plea agreements is overly broad,” states Moreno’s order. “Other means are available to the prosecution and defense to insure that the public record does not contain information about cooperation agreements in those instance where the interests of safety or other considerations require different treatment.” Judges can still seal plea agreements in individual cases, he noted. A spokesperson for the Department of Justice said in an e-mail, “we’re reviewing the court’s decision and considering our options.”
David Markus, former president of the Miami chapter of the Florida Association of Criminal Defense Lawyers, applauded Moreno for his order. “Kudos to Chief Judge Moreno and the rest of our district judges for keeping our criminal justice system transparent and open to the public,” he said. Tom Julin, a First Amendment lawyer in the Miami office of Richmond, Va.’s Hunton & Williams, called Moreno’s action “progress.” “Most courts are coming to the view that it doesn’t make sense to seal all those records,” he said. “It’s very important for someone to see what deals prosecutors are making.” As for those who say that the government will simply skirt the law and keep details of the plea agreement verbal or written in a private letter, Julin said, “It’s the same as with any open government rule. There are those who will try to circumvent it. But it’s important to have the rules in place; it serves an important public purpose. If you circumvent it, you are acting against public interest.”

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