Criminal cases also hidden from public

 

dchristensen@MiamiHerald.com

Criminal cases and convictions are supposed to be public record. But in Broward County, some felons' cases have been put on a secret docket where the public can't see what's in them or even know they exist.

The Miami Herald has identified three criminal cases against two felons - one whose long rap sheet includes rape and arson - that do not appear on Broward's public case docket. Criminal division Chief Judge Charles Greene said he is "sure there are others."

The removal of cases and case numbers from the public docket is at odds with basic legal principles regarding the openness of courts and has been found unconstitutional. Yet since 2001, more than 100 civil lawsuits have been concealed in Broward Circuit Court, The Miami Herald reported in April. Civil cases have also been hidden in Palm Beach and Pinellas counties.

JUDGE'S ORDER

Now it appears that the practice is also happening in the criminal courts. After learning about the three criminal cases from The Miami Herald, Judge Greene on Tuesday ordered the clerk's office to put them on the public docket. Hiding those cases, he said, was "not contemplated nor authorized." He has also asked the clerk's office to find out how many other criminal cases have been improperly kept off the docket.

The two felons whose cases were removed are named in public court records as informants and state witnesses.

Concealing the criminal cases of government witnesses undermines defendants' right to a fair trial by obstructing their ability to discover information about their accusers, defense attorneys say.

The president of the Florida Association of Criminal Defense Lawyers, Jeffrey Harris, calls the practice of hiding criminal cases "very troubling." He plans to raise the matter at the August board meeting of the 1,500-member group.

PUBLIC RECORD

Keeping cases off the public docket, sometimes called "super-sealing, " also warps the public record that businesses and individuals rely on to hire employees and to vet customers.

Banks, for example, could be prevented from learning that a person being considered for a loan had committed bank fraud. Or parents seeking to hire a baby sitter might not discover a job candidate's prior drug use.

Super-sealing is bad for business, said Tom Cash, who runs the Miami office of risk consulting firm Kroll Associates. "It's a matter of suppressing diligence, any type of financial due diligence, " Cash said.

Greene and Dale Ross, chief judge of Broward courts, said they were not aware that some criminal cases were not on the docket until they were contacted by reporters. Nor was Broward State Attorney Mike Satz, a spokesman said.

"We know nothing about a process that would lead to criminal cases being totally removed from the court docket, " said the spokesman, Ron Ishoy.

WHAT THE LAW ALLOWS

Florida law allows judges to seal sensitive case information, to protect informants from harm and for other reasons. But no authority exists for judges to erase the very existence of a convicted criminal's case.

There is a law that allows arrests to be removed from the public record - a process called "sealing and expunction" - under certain conditions. The law is intended to protect the reputations of people who are arrested but not convicted of crimes.

Convicted criminals are not eligible for such treatment. But the clerk's office nevertheless has used the expunction law to hide such cases.

THE CLERK'S CUE

Vanessa Steinerts, general counsel for Broward Clerk of Courts Howard Forman, said any judge's order to seal a criminal case is the clerk's cue to remove that case from the public docket.

She said that when judges seal cases, for any reason, clerks put them on a "nonpublic index" provided for in the expunction law. But Judge Greene and others such as Broward Public Defender Howard Finkelstein said the clerk's office is misapplying the law in the cases of drug felons.

"It sounds like a misinterpretation of the law, " Finkelstein said.

Steinerts disagreed. "I think we are handling everything appropriately, " she said.

TWO INFORMANTS

The three cases involve informants Carmen Letizia and Anthony DeLuca Jr.

Attorney Gary Kollin's client James Morgan was charged with selling 50 tablets of Percocet to informant Carmen Letizia in 2004. After a judge ordered the state to disclose Letizia's name to Kollin, and a prosecutor identified Letizia in a public court filing, Kollin began a typical background check. Kollin wanted to know why Letizia was cooperating, and the terms of his plea deal with prosecutors.

"You always need to know a witness' motives, " Kollin said.

A check of the court's computerized docket showed a number of cases for Letizia, but not a 2003 drug trafficking conviction and a 2002 cocaine possession case. Kollin later discovered those cases at the Florida Department of Corrections website.

Kollin asked prosecutors for information about those cases and Letizia's deal. So far, he said, he has no answers.

"I am entitled to know what happened and what the deal is, " he said. "Without that, I can't investigate the nature of [Letizia's] negotiations or how his work caused my client's arrest."

Letizia's Fort Lauderdale attorney, Patrick Curry, declined to comment.

Circuit Judge Eileen O'Connor, identified as the presiding judge in Letizia's trafficking case, did not return phone calls.

A similar vanishing act confronted lawyers for a trio of pharmacists arrested in 2003 on charges of illegally selling prescription drugs.

Anthony DeLuca Jr., identified as a cooperating witness in public court records, has a rap sheet that includes felony convictions and prison time for rape, arson, burglary and theft. But the drug conspiracy case that led to his cooperation with Broward prosecutors - 03-9547CF10B - is not listed on Broward's docket. The case number can be found in other public court records.

RELIABILITY ISSUE

Defense lawyer Robert Buschel is concerned that he has been unable to see DeLuca's deal.

"The state's witnesses are trying to convict my client, and if they are criminals, we should know everything about them, " Buschel said. "Otherwise, the jury might think they are more reliable than they actually are."

DeLuca's attorney, Robert Stanziale, declined to comment.

MIAMI-DADE SITUATION

Officials in Miami-Dade County said they are not aware of criminal cases being kept off the public docket there.

Circuit Judge Stanford Blake, administrative judge of the criminal division, said that generally only plea deals, not whole cases, are sealed when informants are involved. He added that those records are unsealed once the case is resolved.

"I'm unaware of any files that have been totally sealed, where you can't access them through the clerk's office, " Blake said. Un Cha Kim, chief operating officer for the Palm Beach County clerk's office, said she does not know whether anyone with a criminal conviction has had his or her case hidden from the public.

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