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Southern District of Florida Online Once Again

By Effie Silva, Litigation News Associate Editor – April 21, 2009

The Southern District of Florida is once again making all criminal plea agreements accessible online through PACER as “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.” Administrative Order No. 2009-2.


This order, which was put into effect in late February, rescinds an April 2007 order that had removed all plea agreements from electronic view and made them only accessible for physical viewing at the courthouse.


“Our [prior] rule was that people could still have access to the plea agreement, but they would actually have to go to the clerk’s office, stand in line, and look at the file,” says Federico Moreno, Miami, chief judge of the Southern District of Florida. “It was obviously intended to minimize access, while technically complying with the law,” Judge Moreno says.


The revised order makes public access easier. “We cannot put hurdles in front of individuals to have access to something that is a public record,” Moreno says.


U.S. Department of Justice (DOJ) officials contacted for this article declined to comment on this new order. The DOJ had been behind the earlier 2007 order, which restricted public access online, working to implement it through the Judicial Conference Committee on Court Administration and Case Management, headed by Federal Judge John R. Tunheim, U.S. District Court for the District of Minnesota. At that time, the DOJ’s concerns were spurred by the growing popularity of data-mining websites, such as whoisarat.com, which posted the identities of witnesses cooperating with the government and were culled from plea agreements posted online.


At this point, however, First Amendment advocates applaud the Florida court’s revised order opening access online. “This is a very good thing, and it also augers well for the ongoing debate on cameras in the courts,” said George Freeman, New York, cochair of the Section of Litigation’s First Amendment and Media Litigation Committee. “If something is public, why not make it public with the convenience that you don’t have to go down to the courthouse to see it or get it? You should be able to see or get it in the convenience of your living room,” Freeman says.


Any of the DOJ’s concerns about witness intimidation, retaliation, or possible harassment arising from these websites should be balanced against the need “to have a fair trial and to make a full disclosure to the defense,” notes Jeffrey M. Weiner, Miami, past president of the National Association of Criminal Defense Lawyers and the Florida Criminal Defense Attorneys Association.


“In this day and age, the overwhelming majority of federal criminal cases are put together by agents and prosecutors with informants. It’s only fair then, when we have clients who are going to trial or who are faced with an indictment or trial, that we know what the deals were that were made with witnesses,” says Weiner.


The rule change takes a necessary step in keeping a system of check and balances in place “especially now when it costs too much money to drive or fly somewhere to get this information,” observes Laura Lee Prather, Austin, cochair of the Section’s First Amendment and Media Litigation Committee.


Because plea agreements have always been publicly available at the courthouse, any concerns for the safety of government witnesses are “illusory,” opines Freeman. “If there really is a problem, the plea agreement can be sealed,” he suggests.


The Southern District of Florida’s order does state that “other means are available to the prosecution and defense to ensure that the public record does not contain information about cooperation agreements in those instances where the interests of safety or other considerations require different treatment.”


Where there are safety issues concerning the disclosure of sensitive witness information, Judge Moreno advises, “Don’t put it in a plea agreement, is what I tell people.”


If there are security concerns, keeping information out of the public is up to the Department of Justice, the Bureau of Prisons, and the marshalls—not the judges,” he says. While it appears that the Southern District Court of Florida is one of the first to take an open access online approach, Judge Moreno believes it will be used as an example for other courts.


 

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