Miami-Dade State Attorney Katherine Fernández Rundle has sent a letter to Florida Supreme Court Chief Justice R. Fred Lewis defending the practice of altering public court records as "sometimes necessary" to protect informants and investigations.
At the same time, however, Fernández Rundle told Lewis that she and other Miami-Dade court officials, including Chief Judge Joseph Farina, have agreed to change the way judges shield court proceedings involving informants.
"Any future practice will not include affirmatively falsifying docket entries, " Fernández Rundle wrote.
The Miami Herald reported last month that judges and prosecutors in Miami-Dade have altered court records and kept secret dockets to disguise what was actually happening in court cases involving informants.
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The paper found two cases, but more apparently exist.
Florida law makes it a crime for anyone - including judges, clerks or "other public officers" - to alter or falsify court records or proceedings. Offenders can be sent to prison for a year.
Miami First Amendment attorney Thomas Julin called Fernández Rundle's remarks to the chief justice "stunning."
"It appears the state attorney is admitting that she and others in the judiciary have simply ignored a criminal statute that flatly prohibits the falsification of judicial records, " Julin said.
"This is a classic example of individuals pursuing their own goals, which may well be legitimate law enforcement goals, but in the course of doing so, they have undermined the integrity of the public record."
SUPPORTED BY LAW
Court spokeswoman Eunice Sigler said, "The assumption that the law has been broken in any instance is premature and unfounded. The practice of maintaining certain records related to ongoing criminal investigations as confidential is a long-standing practice that is supported by Florida law."
Sigler said Farina "agrees with the state attorney's office" and considers the new procedures "a fair balance between access and public safety."
Chief Justice Lewis is leading a statewide inquiry into the improper hiding of court records. He began it after The Miami Herald reported that hundreds of civil and criminal cases, mostly in Broward County, had been kept hidden from the public by judges and clerks.
Many of those "super-sealed" cases were found to be the divorces of politicians, judges, lawyers and high-profile businessmen, raising questions of favoritism.
In letters to Florida Bar officials, Fernández Rundle wrote that a proposal to require public hearings before sealing any court records "would seriously impede investigative efforts" and put informants in danger. The use of altered court records "most often arises in narcotic or special prosecution cases, " she wrote to Lewis.
Fernández Rundle said the Florida Prosecuting Attorneys Association shared her concerns.
The recommended rule changes by the Florida Bar would impose tough new requirements on those seeking to make civil or criminal court records confidential. They would also bar judges from hiding the existence of entire court cases.
Fernández Rundle told Lewis that altered "portions of a criminal court file" are a temporary measure to protect informants, employed only "during the period of cooperation - generally three to six months."
Judges, prosecutors and defense lawyers have participated in the practice and "long believed that this technique is legal, necessary and appropriate, " she said.
Some altered cases have stayed veiled much longer. On Saturday, The Miami Herald reported the case of informant Michael Scott Segal and how his allegations of murder and corruption were under unusual court secrecy for more than three years.
"A far more rare investigative tool, " Fernández Rundle said, "has involved the creation of fictitious court documents at the request of law enforcement to aid in the most sensitive criminal investigations."
She told Lewis an example is Operation Court Broom, a 1990s judicial corruption case in which high court justices sanctioned the use of phony documents.
With regard to both altering court files or creating fictitious documents, Fernández Rundle's letter complains that the proposed rule changes don't adequately "address either of those investigative scenarios."
Nonetheless, from now on, Fernández Rundle wrote, proceedings involving potential informants in Miami-Dade will be kept temporarily confidential upon written authorization from judges.
Fernández Rundle said dockets would now show that such cases are "scheduled for 'status, ' which is a correct representation because the status of the case is not final until the cooperating defendant has completed the terms of his or her plea agreement."