|
|
 |
|
February 9, 2010 |
|
|
|
|
| |
|
|
| April 17, 2008 |
By: Jordana Mishory |
|
rule proposed by the Florida Supreme Court and a Florida Bar committee to limit the use of sealed documents in criminal cases has generated stiff criticism on constitutional grounds.
The new rule would seal motions that “may jeopardize either the safety of a person or an active criminal investigation” and keep the court order sealing the document confidential.
A number of comments filed with the court for an April 1 deadline claim the proposals could backfire by contravening the intended goal of making it tougher to seal court records and prevent the creation of “secret dockets.”
Chief Justice R. Fred Lewis pushed for emergency rulemaking in the wake of news reports that hundreds of criminal and civil cases across the state were secret or hidden without the proper notice or hearings.
The Bar’s Rules of Judicial Administration Committee concluded wide open records could alert a suspect that a criminal investigation was pending or endanger the lives of informants.
Opposition is coming from groups representing public defenders, news media and the public.
The state public defenders association expressed concern that documents that could have a major effect on their cases would be confidential.
The First Amendment Foundation, a Tallahassee-based free-speech group, told the court that the “amendment stands in direct conflict with its recent strides to enhance transparency in Florida courts.”
Last April, the state’s high court unanimously adopted a series of procedures that litigants must follow if they want to seal papers in noncriminal cases. Litigants must file a motion to seal, and hearings must be held in contested cases. The clerk’s offices also must post notice of all orders sealing documents on the court’s Web site and around the courthouse.
Under the criminal court proposals, the same procedures would apply except when a motion to seal information could jeopardize a person’s safety or an active investigation.
In both circumstances, the motion to seal would be confidential. Any hearing on sealing would be without public notice, and sealing orders would not be made public.
“The biggest concern is that the rules do not allow any level of meaningful opportunity for public oversight,” said Barbara Petersen, president of the First Amendment Foundation. “It is so critically important that the public have access to criminal courts specifically because how else are we going to ensure ourselves that the criminal process is fair and balanced?”
The concern was echoed by comments filed by a number of Florida media organizations that said the rule would threaten efforts to rebuild confidence in the justice system and create “fundamental, systemic problems.”
Both the foundation and news media contend the rule is unconstitutional by making motions to seal a new category of automatically closed criminal records. The state Constitution dictates only the Legislature can create public record exemptions.
The Bar committee said in an Oct. 31 report to the court that its members expressed concern that the new rule would prevent some public scrutiny.
But the committee concluded, “There was no way to effectuate the goals of protecting the personal safety of individuals assisting in the pursuit of criminal justice without imposing some additional levels of secrecy.”
The committee said it relied on procedural safeguards “to ensure that the new procedure was as narrowly tailored and free of the potential for abuse as possible.”
Robert Benton II, a 1st District Court of Appeal judge who chairs the Bar committee, said in an interview that the proposed rule is subject to change. “I’m open to be persuaded by comments,” he said, declining to comment further.
The committee has until the end of May to respond to comments.
The proposal also would keep sealed documents secret on appeal. Appellate courts would have to follow the same procedures as lower courts to seal new documents.
The Miami Herald reported in 2006 that more than 100 Broward Circuit Court cases had been hidden from public view without even a case number on record.
The Florida Supreme Court responded by ordering several Bar committees to suggest rule changes on an expedited basis to amend rules for access to court records.
“The public’s constitutional right of access to court records must remain inviolate, and this court is fully committed to safeguarding this right,” the court wrote last April.
The new criminal rule was proposed last October to amend the Rules of Judicial Administration.
The proposal went to the court with the unanimous approved of the Rules of Judicial Administration Committee, the Criminal Procedure Rules Committee and the Executive Committee of The Bar’s board of governors.
The new rule would require:
• Motions to seal documents that could endanger a person or investigation be kept confidential.
• In-camera hearings within 15 days of an opposed motion to seal.
• Orders on sealing within 10 days of a hearing or unopposed motion.
• Sealing orders for no more than 120 days without a motion for an extension.
Tampa attorney Carol Jean LoCicero filed comments against the proposal on behalf of the New York Times, Tribune and Media General newspapers in Florida as well as WFLA-TV in Tampa and WMBB-TV in Panama City.
“Opposing closure under these circumstances is equivalent to defending a lawsuit without access to the complaint,” LoCicero wrote.
The media groups want motions seeking a seal to be made public and noted parties seeking a seal are not required to explain the legal basis for requesting secrecy.
To protect confidential information, motions could specify reasons for sealing information without revealing sensitive details, news media said. They also said the rule does not say whether docket entries would accompany motions to seal.
“Such a system would mimic the ‘super sealer’ system in Broward that the court has so diligently worked to eradicate,” LoCicero wrote.
She complained the jeopardy basis for closing the process is too vague. An imminent threat to life is one thing, but the proposal lacks any parameters.
The media also wondered how far the rule could go. It inquired if the rule would protect the identity of all witnesses who intend to testify against a defendant because of fear of retaliation and suggested orders be lifted if a recognized danger has subsided.
“It really was an extraordinary effort by the court and chief justice to root out the ‘super sealer’ problem,” LoCicero said. But she is worried the proposal “is a bit of a step backward.”
The Florida Public Defender Association also questioned the proposal. The group has no problem with sealing motions, closing motion hearings to the public and preventing orders from being published. But the association expressed concern that the rule does not address the concept of altering court records.
The Herald reported Miami prosecutors had altered court documents to protect informants.
The association said “the failure to mention altering court documents could be read as an implicit permission for state attorneys to continue doing so.”
Public defenders also do not want to allow the sealing of prior criminal convictions.
“Criminal history records are important evidence because convictions for prior felonies and crimes involving dishonesty or a false statement are admissible as impeachment evidence,” the association wrote. Knowing the background of witnesses could affect a defendant’s decision to take a plea bargain.
The association, the Volusia County clerk and news media have requested oral arguments before the Supreme Court on the issue, but none has been scheduled.
Miami attorney Edward Maurice Mullins, who chairs the Bar’s appellate committee, did not return call for comment. His committee has until May 9 to file a response.
Jordana Mishory can be reached at jmishory@alm.com or at (954) 468-2616.
R. Fred Lewis photo by A.M. Holt
Reader's comments
UPTON SINCLAIR said:WHY HAS EX-JUDGE JAY SPECHLER'S log of judge pimping appointments with MICHAEL HAMAWAY been sealed? April 17 at 11:00 a.m. |
|
Search the archive for more stories.
|
|
|
 |
|
lawjobs Featured Ad
Foreclosure Litigation Attorney Boca Raton office of expanding firm seeks an Experienced Litigator w/ min. 3 yrs. exp. Excellent salary and benefits package.
E-mail scleary@
logs.com |
|
|
|
|
|
|
