Tuesday, November 15, 2005
From Law.com: Daily Business Review: 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. [In spite of the panel's reprimand, some observers believe the Southern District of Florida may still be supersealing cases.]..."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."...
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. [Mark Godsey]