Judges Are Not Above the Law

 Date: Tue, 15 Nov 2005 18:51:43 -0500
    From: American Common Defense Review <donhamrick@gmail.com>
Reply-To: American Common Defense Review <donhamrick@gmail.com>
 Subject: Judges Are Not Above the Law
      To: Senior Inspector Robeson US Marshals Service <robert.robeson@usdoj.gov>,  Deputy Marshal Campos <Anthony.Campos@usdoj.gov>,
FBI Washington DC <washington.field@ic.fbi.gov>

FROM: Don Hamrick

TO: Senior Inspector Robeson US Marshals Service , Washington DC
TO: Deputy Marshal Campos, Washington DC
TO: FBI Washington DC

ITEM 1:
Beware of The Phrase: "Independence of the Judiciary"
JUDGES ARE NOT ABOVE THE LAW

ITEM 2:
Judge Jails Ohio Blogger Baumgartner Without Stating Reason

ITEM 3:
Fla. Federal Judges Slammed for Secret Docketing
Judges have been reprimanded by 11th Circuit for hiding cases -- but is the
practice continuing?

The ITEMS below present a very substantial rebuttal to Deputy Marshal
Campos' comments on my inquiry into the scope of the right of citizen's
arrest of federal judges of the DC Circuit and Chief Justice John Roberts
for extortion of filing fees. I have already proven Deputy Marshal Campos
wrong in his belief in the Second Amendment is a right of the State to arm
the militia and that it is not an individual right to keep and bear arms by
submitting the U.S. Department of Justice Memorandum Opinion on the Second
Amendment <http://www.usdoj.gov/olc/secondamendment2.pdf> to refute his
misguided belief.

Deputy Marshal Campos seems to have a naive faith that all federal judges
act in good faith to the U.S. Constitution and the Rule of Law and that he
would arrest me if a pursued my inquiries into the right of citizen's arrest
with an actual attempt of making a citizen's arrest of the federal judges of
the DC Circuit and of the Chief Justice, John Roberts. I hope Deputy Marshal
Campos, Senior Inspector Robeson and the U.S. Marshal Service recover from
their delusion that all federal judges are honest judges.

Therefore, it is my belief and allegation that the U.S. Marshals Service as
a federal law enforcement agency are protecting corrupt federal judges who
have broken a federal law (18 U.S.C. 872 -v- 28 U.S.C. 1916) on the premise
that the action of those judges in compelling me to pay the DC Circuit's
filing fee was a judicial duty that is protected by absolute immunity
instead of an administrative duty that is not protected by absolute
immunity.

It my be occupational suicide for Deputy Marshal Campos and Senior Inspector
Robeson to agree with my conclusion, cmy omplaint and myevidence of
extortion by federal judges but they have a sworn duty under oath to
prosecute verifiable complaints with supportable evidence of a crime. And by
the very fact that they have threatened me with arrest and refusing to act
on my complaint is evidence of obstruction of justice.

It is only because I am a political nobody that they remain unresponsive to
my complaint and evidence. This is implied proof that federal judges are
above the law when they have the U.S. Marshals Service turning a blind eye
to their white collar crimes. It is further evidence of corruption in the
U.S. Marshals Service as well as throughout the U.S. Government.

Now I submit the following ITEMS to refute Deputy Marshal Campos'
admonishment that there is "no way," "no how," "in any shape or form" that I
will be able to lawfully make a citizen's arrest of judges and of the Chief
Justice because whenever the federal government refuse to act in any matter
confronting it such action falls upon the State government or to the People
in accordance with the Ninth and Tenth Amendments.

Therefore, if the FBI and the U.S. Marshal Service refuse to validate the
justiciability of my complaint in what I presume their wish that my
complaint will go away I will still be burdened with an injustice in search
of a remedy. It this situation remains as it is it closely resembles not a
Republican form government where the Rule of Law trumps the arbitrary rule
of men but a government of despotism and tyranny, a nihilistic form of
government.

Will the FBI and the U.S. Marshals Service now respond to my complaint? Or,
will I be arrested on some trumped up charge?


Signed: Don Hamrick

------------------------------

Beware of The Phrase: "Independence of the Judiciary"
JUDGES ARE NOT ABOVE THE LAW

By Barbie, ACIC National J.A.I.L. Administration
victoryusa@jail4judges.org
 The People must beware of the phrase, which will be touted more and more
frequently by our opponents, "Independence of the Judiciary" and its
derivatives, such as "judicial independence," "independent judiciary,"
"judges should remain independent" and others. The word "independence," when
connected to the judiciary in the current system, means arbitrary; and
should raise a red flag of caution every time you hear it or read about it.
It means the judiciary wants to be left alone and remain unaccountable to
the People.
  The term "independence" as it applies to the three branches of government
is always to be viewed as a sword, and not as a shield; i.e., each branch is
not dependent upon the other two for its actions. Example: the executive
(prosecutor) may prosecute any member of the judiciary [executive sword];
the legislature may impeach any member of the judiciary [legislative sword];
the judiciary may hold any member of the executive or the legislature in
contempt of court [judicial sword]. No branch of government has a shield of
"independence" from the other two; and certainly has no independence from
the People --including the judiciary.
 "Independence" as it applies to the People is inherent in the People; i.e.,
they don't need the permission of government, including the judiciary, to be
independent. The independence of the People is manifest through juries--
grand and petit. The statement by Mr. Riter of the South Dakota Bar
Association (SDBA), to wit: if an effort like that [J.A.I.L.] was successful
it would likely destroy the current independent nature of our judiciary is a
misrepresentation, since there does not exist an "independent nature of
[the] judiciary" as it relates to the People-- only as it relates to the
other two branches of government. Mr. Riter interprets "independence of the
judiciary" as if it were a shield, but "independence" is never a shield in
any instance. The judiciary, contrary to the suggestion by Riter, was not
established to operate inside a bubble.
 Bob Riter, President of the SDBA, opens his President's Page with Judicial
independence is the touchstone of our legal system.
http://24.230.151.131/officers/prespage.htm. The term "judicial
independence" relating to our current legal system as it operates de facto
(outside the law), is certainly true. However, that "touchstone" conflicts
with the touchstone of due process which, the U.S. Supreme Court has ruled
repeatedly, is "protection of the individual against arbitrary [i.e.,
independent] action of government." [Emphasis added] [See Daniels v.
Williams (1986) 474 U.S. 327, 331].
 As characteristic of what passes off as our "government" generally, the
current legal system --and more precisely the judicial system-- has, by
abuses and usurpation of power, developed into an out-of-control tyrannical
force that continually harasses and abuses the People. And within the
current legal system, there is no recourse available in practice for the
People to use when their rights are abused. Until recourse for the People
becomes a reality through J.A.I.L., the judiciary will remain unaccountable
and free to do whatever they please (i.e., act arbitrarily)-- that is what
is meant by "judicial independence" in the current system! Mr. Riter wants
the People to leave the judiciary alone and preserve the status quo of
judicial tyranny so that it can continue its unbridled power of oppression
against them. (Is that insulting the intelligence of the People, or what?)
 As we have seen by the diatribe of Tom Barnett, writing and speaking on
behalf of the South Dakota Bar Association, the SDBA has already insulted
the intelligence of South Dakotans. Mr. Barnett has now passed the baton to
his colleague, Bob Riter of the SDBA who is continuing the race to hoodwink
the South Dakotans with statements including, for instance:

a.. Society's well-being is dependent upon an independent judiciary standing
ready to resolve disputes and interpret law;

b.. Its (J.A.I.L.'s) effect is to allow those who are disappointed with a
judicial result to challenge the Court outside of our existing legal
processes;

c.. It is the best system ever designed to peaceably and thoroughly resolve
issues.

Again the SDBA, this time through Mr. Riter, insults the intelligence of the
South Dakotans by trying to convince them in effect that:

a.. "Judicial independence" is really for their good;

b.. They don't need a judiciary that is accountable to the People under law;

 c.. It is not their responsibility to act to assure that their rights are
protected by government;

d.. South Dakotans are not to alter or reform their judiciary by passing a
measure that would hold judges accountable to themselves under
constitutional standards, even though the South Dakota Constitution
recognizes that as their right to do. (Art.VI, §26);

e.. In actuality, judges are above the law and should remain that way!

Mr. Riter is asking all lawyers join him in his endeavor to further insult
the intelligence of the people of South Dakota. We suggest that all lawyers,
and anyone else joining in the "judicial independence" propaganda,
understand that:

a.. 46,800 South Dakotans realize that South Dakota judges do abuse their
authority and make unlawful and corrupt rulings.

b.. 46,800 South Dakotans realize that South Dakota judges should not have
unconditional immunity from liability for unlawful and corrupt rulings.

c.. 46,800 South Dakotans realize that South Dakota judges must be held
accountable to the People under the state and federal Constitutions and laws
made in pursuance thereof.

To try to convince South Dakotans otherwise is foolhardy, and will further
erode the integrity of lawyers, as if it could be further debased from the
rock-bottom level it now holds.
Remember: "Judicial Independence" is NOT what you are led to believe it is
by the Legal Industry Cartel led by the Bar Association.
 Judges are not above the law!
 -Barbie-
victoryusa@jail4judges.org

--------------------------------------------------------------------------------
 www.SouthDakotaJudicialAccountability.org<http://www.southdakotajudicialaccountability.org/>
46,800 South Dakotans say YES to judicial accountability
46,800 South Dakotans say NO to unconditional judicial immunity
______________________________________________________

J.A.I.L.- Judicial Accountability Initiative Law -
www.jail4judges.org<http://www.jail4judges.org/>
Contribute to J.A.I.L. at P.O. Box 207, N. Hollywood, CA 91603
See our active flash, http://www.jail4judges.org/national_001.htm
JAIL is a unique addition to our form of gov't. heretofore unrealized.
JAIL is powerful! JAIL is dynamic! JAIL is America's ONLY hope!
E-Group sign on at http://groups.yahoo.com/group/jail4judges/join
Get involved at JAIL_SALE_USA-subscribe@yahoogroups.com
To be added or removed, write to VictoryUSA@jail4judges.org
Your help is needed:
www.SouthDakotaJudicialAccountability.com<http://www.southdakotajudicialaccountability.com/>
 "..it does not require a majority to prevail, but rather an irate, tireless
minority keen to set brush fires in people's minds.." - Samuel Adams
 "There are a thousand hacking at the branches of evil to one who is
striking at the root." -- Henry David Thoreau <><

 ===============================================

Judge Jails Ohio Blogger Baumgartner Without Stating Reason
<http://www.northcountrygazette.org/articles/111405Baumgartner.html>

CUYAHOGA COUNTY, OHIO---In one of the most egregious displays of abuse of
power and bias from the bench, Cuyahoga County Court Judge Shirley
Strickland Saffold has revoked the bond of former attorney and pharmacist
Elsebeth Baumgartner and sent her back to jail.

However, Saffold gave no reason for Baumgartner's arrest Monday.

Bryan DuBois,28, editor of a blog which focuses on judicial and political
corruption in northern Ohio, and his associate, Dr. Baumgartner, 50, were
charged this summer with multiple felonies in a secret indictment obtained
by Daniel Kasaris whose boss, Cuyahoga County prosecutor Bill Mason had been
the target of the blog's allegations.

Baumgartner had filed a motion last week seeking the disqualification of
Saffold and other Ohio judges from hearing the case saying that the extreme
bias harbored against Baumgartner by Saffold and other judges is grounds for
disqualification in the case in which a judge is the complaining witness.

The trial in the case had been scheduled to begin Monday but the Supreme
Court has imposed a stay in all proceedings until Nov. 22 when it is
expected to rule on Baumgartner's motion.

Additionally, Richard Olivito, the attorney representing DuBois, is the
subject of a disciplinary proceeding before the Supreme Court of Ohio's
Board of Commissioners on Grievances Discipline which recommended Friday
that Olivito be suspended from practicing law for two years with one year
suspended.

On Monday, upon informing Saffold of the action pending against his
attorney, DuBois discharged Olivito and requested a continuance to obtain
new counsel. In an interview with The North Country Gazette , DuBois said
that Saffold remarked that after the Supreme Court rules on the affidavit of
bias on Nov. 22, she would be proceeding to trial within 30 minutes of the
decision.

"How is Judge Saffold so sure that the Supreme Court will keep her on the
case?", Olivito asked. "Is she inferring that she knows something that rest
of us don't know?"

DuBois said that while he would like to retain Olivito as his attorney. He
asked Safford if she knew about Olivito's situation. DuBois said that
Saffold admitted to knowing about the disciplinary proceedings and then
reiterated that DuBois needed to obtain new counsel and that the trial would
be moving forward without delay.

Saffold stated that if DuBois as Baumgartner's co-defendant hadn't also
filed an affidavit of bias against her why they couldn't move forward
against DuBois. Kasaris told Saffold that he didn't want to try the case
twice.

Baumgartner's affidavit of bias argues that since the complaining witness
against her is retired visiting judge Richard Markus, a prominent judge who
has served in Cuyahoga County and has close political ties with many
Cuyahoga County officials, the entire Cuyahoga bench should be disqualified.
Records show that Chief Justice Tom Moyer has ruled that when an appearance
of unfairness exists because a jurist is involved in the case, the entire
bench was disqualified.

Baumgartner had also filed a written motion seeking a continuance in her
matter which was arbitrarily denied by Safford. Safford had adjourned the
matter until Nov. 22 on the basis of the Supreme Court stay and had left the
bench. In a conversational tone to DuBois and others and not addressed to
the judge, Baumgartner reportedly stated "I'll be amending the affidavit of
bias…."

DuBois said that Safford suddenly stopped, turned and returned to the
microphone, calling for the deputy of the court. Safford then stated, "All
right, we're going back on the record---deputy, arrest her, I'm revoking her
bond".

Saffold gave no cause on the record for revocation of the bond and
incarceration. One cannot legally be jailed without cause.

Dr. Baumgartner has been a long-time critic of Ohioan government, both local
and state, alleging massive federal and state grant fraud as well as abuses
of power by public officials, particularly Erie County district attorney
Kevin Baxter and numerous judges in northern Ohio, especially Markus and
Chief Judge Thomas Moyer.

Baumgartner teamed up with DuBois in the publication of Erie Voices,
www.erievoices.com/blog <http://www.erievoices.com/blog> , a website that
publishes articles and opinion alleging misconduct by public officials in
several northern Ohio counties including Cuyahoga, Erie, Lucas and Ottawa
which lie on the shores of Lake Erie.

The day after DuBois as editor of Ohio's Erie Voices sent an email to the
Cuyahoga County Commissioners in July detailing how Cuyahoga County
prosecutor Bill Mason and Erie County prosecutor Kevin Baxter were allegedly
exchanging "special prosecutor" appointments on political cases, he was
arrested.

Kasaris indicted Baumgartner and DuBois one day after DuBois filed a
grievance against Kasaris and retired visiting judge Markus with the
Cuyahoga County Bar Association. Kasaris is now prosecuting the Erie Voices
writers and Markus is the complainant in the case, alleging that DuBois and
Baumgartner intimidated him with an email on the eve of a civil trial last
November in which Baumgartner was the defendant.

Additionally, Safford was the presiding judge in Baumgartner's appeal of the
revocation of her pharmacy license, ruling that Baumgartner was a mentally
impaired pharmacist. Safford has vehemently denied it despite court records.


Saffold entered her judgment against Baumgartner the say day that Markus
entered a $175,000 judgment against her in the trial during which he claims
Baumgartner intimidated him. In the pharmacy hearing before Saffold, Markus
had filed a notice with Saffold against Baumgartner indicating that he had
deemed her a vexatious litigator and that Baumgartner was not allowed to
represent herself and would need a lawyer. Markus ordered Saffold that if
Baumgartner attempted to proceed in appealing the revocation of her pharmacy
license that Saffold was to immediately dismiss the case.

"None of what you say is true", Saffold shouted from the bench, in an
obvious display of distemperment.

But the time stamped copies of documents on file in the Cuyahoga County
Common Pleas Court show otherwise.

Although Markus claimed he was intimidated by the email, he did not recuse
himself from presiding at the November, 2004 trial in which he ruled against
Baumgartner and entered a $175,000 judgment against her. Although he claims
he felt threatened, he waited over seven months before filing a complaint
against the bloggers in separate incidents and didn't recuse himself from
Baumgartner's trial as ethics rules demand. In the meantime, he filed 34
counts of criminal contempt against Dr. Baumgartner for criticizing him and
other public officers.

Baumgartner has long been a thorn in the side of public officials and
especially the judiciary, Erie County prosecutor Kevin Baxter and Chief
Judge Thomas Moyer.

DuBois says that witnesses have told him that following a court hearing in
Cuyahoga County, Kasaris allegedly admitted to them that Markus, 75, had
pulled Kasaris aside, handed Kasaris a file on Baumgartner and DuBois,
allegedly described them as a "problem" that "needed to go away".

Prior to his secret indictment, arrest and incarceration, excessive bail,
DuBois had been writing extensively about Judge Markus and other members of
the judiciary and prosecutors in northern Ohio. He says he was "assured" by
Cuyahoga County Bar Association representatives that judges and prosecutors
can't prosecute people "just because they criticize the government".

However, that appears to be exactly what's happening to Dr. Baumgartner and
DuBois. Baumgartner faces 10 counts of intimidation and three counts of
retaliation, third-degree felonies, and one count of possession of criminal
tools, a fifth-degree felony. DuBois faces one count of extortion, two
counts of intimidation, one count of retaliation, all third-degree felonies,
and one felony count of possession of criminal tools, a computer.

DuBois' charges purportedly relate to a note he allegedly handed former
School Superintendent Charles Burns after Burns testified against
Baumgartner during a libel trial last year in which Burns had sued
Baumgartner. DuBois maintains he can prove that Burns allegedly committed
perjury. Baumgartner was indicted on intimidation and retaliation charges
for the exercise of free speech rights in challenging the alleged corruption
of public officials. She was incarcerated in Cuyahoga County Jail in
northern Ohio, spending 10 days of her 24-day confinement in isolation on
orders of Kasaris, until Aug. 4 when Judge Shirley Saffold reduced her bond
from $360,000 cash only down to $25,000.

DuBois had originally been held on $150,000 bond in Cuyahoga County,
apparently at the direction of Kasaris, and an additional $40,000 detainer
in Ottawa County. After the Cuyahoga County detainer was reduced to $40,000,
he was able to post 10% of each bond or a total of $8,000 to secure his
release Wednesday, Aug. 3 and Baumgartner was able to secure her release the
following day when her $360,000 bond was reduced to $25,000.

At first, Kasaris stated the Erie Voices website was not a factor in the
arrest of the pair. But now he says if the website editor stops writing for
the site and stops associating with Baumgartner, he'll reduce the felony
charges he brought against him to a misdemeanor.

According to their families, both Baumgartner and DuBois were unlawfully
held in solitary confinement, denied access to mail, phone and visitors.
Kasaris has admitted that he ordered that former attorney Baumgartner be
held in segregation but it is unknown what judge, if any, signed such an
order and on whose authority jail officials acted. Kasaris allegedly said he
was taking orders from Ottawa County officials who said Elsebeth is a "bad
girl" and needs to be put in isolation.

Kasaris has characterized Baumgartner and DuBois as "paper terrorists" for
having filing motions and other court papers.

During a court appearance by Baumgartner when she questioned the indictment,
Judge Saffold said that she's never seen a prosecutor obtain an indictment
because of criticism of a public official. According to court records,
Kasaris' only argument in attempting to dismiss Judge Saffold's questions on
the validity of the indictment and the cause for it was that "nobody seemed
to have a problem with it except her". 11-14-05
======================================

Fla. Federal Judges Slammed for Secret Docketing
 <http://www.law.com/jsp/article.jsp?id=1131975851151>Judges have been
reprimanded by 11th Circuit for hiding cases -- but is the practice
continuing?
 <http://www.law.com/jsp/article.jsp?id=1131975851151>
Julie Kay <letters_to_the_editor@corp.law.com>
Daily Business Review <http://www.dailybusinessreview.com/>
11-15-2005

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.Av. 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 defense attorneys for
Ochoa 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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