Information, Information, More Information -
SEALED CASES AND THINGS

     As we all wait and wonder what happens with the johnny andrews drug case, why booking documents cannot be seen, why mug shots are not available, who his lawyer is and a multitude of other unanswered questions come to mind, perhaps this article will serve to enlighten some.
 
     Based on what it says in this article and all the secrecy surrounding the case it appears andrews has been arrested on a Federal Warrant and they have yet to get all the information from him they want.  If I was a betting person I’d bet that andrews has a pet name of Ca--na—ry and other arrest warrants are in the making.  One can only speculate who will be on the next hit parade list.
 
     Again, rumor control has it a longtime friend and associate of andrews has been called to Mobile for a chat.  One thing is for sure, this has not been an accidental arrest, yes, there is something to it and I am finding it hard to wait for things to develop and only hope it will come out in the open.
    
Some federal cases are sealed away from public view
Monday, May 23, 2005
By BRENDAN KIRBY 
Staff Reporter
Mobile Press Register

A lawyer representing a man arrested with millions of dollars' worth of 
methamphetamines in his sport utility vehicle recently filed a motion to 
subpoena a witness in federal court in Mobile.
Don't ask who the witness is, though.
It's a secret.
And don't ask why Mobile's federal prosecutors wanted a judge to give a 
break to a pair of Nigerian nationals who pleaded guilty in a bank fraud 
case last month.
That's a secret, too.
They are among the thousands of official secrets, large and small, 
safeguarded by the U.S. District Court clerk's office in Mobile. 
Sometimes, the public never learns a criminal case even exists.
According to the clerk's office, since 1993, 30 criminal cases have been 
sealed entirely -- from indictment through resolution. Eight of those, 
involving charges against juveniles, are required by law to be closed. The 
rest, according to court officials, have been sealed to protect ongoing 
investigations.
More common is the practice of sealing certain documents in cases that 
otherwise are open to the public. These include papers that might reveal 
national or corporate secrets, psychiatric or other medical information, 
information that could jeopardize a criminal investigation or personal 
financial data.
Dating to 1991 for civil lawsuits and 1993 for criminal cases, according 
to federal court officials, the clerk's office has 5,629 "sealed" 
documents that are unavailable for public inspection. Closed documents 
that pre-date the court's computer system are housed in a pair of locked 
filing cabinets and in a vault in the federal courthouse in Mobile. 
Although less than 2 percent of all documents filed in federal court still 
are sealed, legal experts said far more information is unavailable about 
federal cases than those in state courts.
"I always thought of it as ripe for abuse," said Mobile lawyer Dom Soto, 
who nonetheless added that it is appropriate to keep some information 
secret. "It seems to be wide open as to what can be done under seal." 
Lucy Dalglish, executive director of The Reporters Committee for Freedom 
of the Press, said prosecutors generally seek to close cases in drug and 
terrorism matters where they want co-defendants to turn on each other. 

Allowing defendants to plead guilty behind closed doors might protect them 
from retribution, she said.
"There may be some merit to that. However, it's creating a completely 
secret system of justice," Dalglish said. "That means that there are 
people sitting in prisons and there is no public track record of how they 
got there. I find that appalling."
Federal judges in Mobile said the vast majority of cases and documents 
remain open. The closed federal cases represent less than 1 percent of the 
3,557 criminal cases filed since 1993. Hidden civil cases are even more 
unusual. The clerk's office said five out of 22,970 since 1991 have been 
sealed.
"On very rare occasions, you will have a request by the government to file 
an indictment under seal and keep it under seal even after a defendant has 
been arrested," Chief U.S. District Judge Ginny Granade said. "It's so 
rare. It's such an exception."

Justifications varied
Soto represents Juan Perez-Oliveros in the meth case. Police in January 
pulled over a 2002 Chevrolet Avalanche that they testified was weaving on 
Interstate 10 and found 85 pounds of methamphetamines inside.
Perez-Oliveros, who was driving the vehicle, faces federal drug charges 
along with passenger Juvenal Espinoza.
Soto said attorneys routinely filed subpoena requests under seal so as not 
to tip off the other side. Lawyers like to play their cards close to the 
vest until it is time to exchange witness lists, he said.
In the bank fraud case, Adrian Chike Okakpu and Okwudili Umenyiora 
pleaded guilty to stealing commercial checks, altering the payee lines, 
then recruiting people in the Mobile area to cash the checks.
Assistant U.S. Attorney Michel Nicrosi told Senior U.S. District Judge 
Charles Butler Jr. that the men have cooperated with investigators and 
therefore deserved shorter prison sentences than called for under advisory 
sentencing guidelines. Butler allowed her to detail her recommendation 
outside of the earshot of courtroom spectators.
Willie James Ellison, a law professor at Samford University's Cumberland 
School of Law in Birmingham, said the danger of closed proceedings and 
sealed documents lies in the fact that the public cannot object to what it 
does not know about. He said judges have wide discretion to determine what 
is in public view and what is not, especially when neither side challenges 
a ruling to keep information out of view.
"That is my concern," he said.
Still, Ellison said, much information could have damaging results if 
released publicly. For instance, civil suits could destroy companies if 
proprietary information got out, he said.

"You think Coca-Cola's going to reveal its formula? They may have to 
compare formulas, but they're going to do it in the judge's chambers," he 
said.
Soto has fought his own battles with sealed documents in federal cases. In 
1989, he and law partner Arthur Madden represented a Bolivian man who was 
brought up on cocaine conspiracy charges.
Soto said two men claiming to be cousins of their client, Alfredo Garcia, 
contacted them and offered substantial payments to represent him -- but 
only if they agreed not to report it. That would have been a crime, Soto 
said, since the federal government had paid them a fee to represent the 
man as an indigent defendant.
Soto said he and Madden became suspicious when Garcia told them he did not 
have a cousin. He said he was even more suspicious after prosecutors and 
the FBI seemed uninterested in the incident.
The lawyers took up the issue with the judge, who revealed the existence 
of sealed documents and secret tape recordings. Butler agreed to open the 
records, and the lawyers learned the men who had contacted them actually 
were an undercover FBI agent and a confidential informant.
Soto said he remains convinced that the entire effort was an entrapment 
attempt against him and his partner. But he said he never would have known 
about it if Butler had not opened up the sealed records.
"A lot of this relies on the good faith of the court and the person that's 
making the motions," he said. "It's a whole shadow government out there a 
lot of times."

Post-9/11 concerns
The practice of secret court cases has come under fire from advocates 
across the country, particularly after the Sept. 11, 2001, terrorist 
attacks.
In one high-profile case, authorities a month after the attacks detained a 
waiter in Florida named Mohamed K. Bellahouel, who had ties to two of the 
hijackers and whose student visa had expired. But the federal court in 
Miami kept all details about Bellahouel's case secret -- including that it 
even existed.
It only became public, according to news accounts, when someone in the 
clerk's office of the 11th Circuit Court of Appeals in Atlanta 
accidentally posted information about the case online and the Miami Daily 
Business Review picked up the story. Bellahouel had appealed the district 
judge's decision to seal the case.
The court also kept secret nearly all information about Bellahouel's 
separate attempts to open the case, including his name and the names of 
the lawyers involved.
The appeals court reviewed the case and issued a "sealed and unpublished 
judgment" in 2003.
Bellahouel appealed the case to the U.S. Supreme Court, which declined 
last year to hear it and refused an attempt by a coalition of media 
organizations and public interest groups to join the case.
The justices heavily edited the publicly released version of the legal 
brief submitted to the high court, blanking out entire pages. In an 
unprecedented move, the court also allowed the federal government to file 
a completely secret response, according to news accounts. 

Lawyers and advocates have identified other sealed cases suggesting that 
the practice has been used relatively frequently in the Miami-based 
federal court, including a case in which drug defendant Nicholas 
Bergonzoli was convicted, sentenced and imprisoned last year in total 
secrecy.
Dalglish, whose reporters committee fought in court to open up the 
Bellahouel case, said secrecy in court proceedings "conjures images of 
people disappearing in Argentina in the 1970s."
In Mobile, federal judges and prosecutors said they can recall few cases 
that have been shut entirely.
"I can only think of one case where significant portions would be deemed 
sealed," said U.S. Attorney David York, who citedongoing investigations 
and the safety of witnesses as the reasons for closing criminal cases to 
the public.
He said his office asks for information to be withheld from the public 
only to protect an informant or cooperating witness or keep personal 
information from becoming public.
Granade and other judges said lawyers must meet a high standard for 
removing records from public view, especially in civil suits. 
"I can't recall anything in civil cases since I've been a judge that's 
been allowed to be sealed, except in cases where there's a parallel 
criminal case," she said.
U.S. Magistrate Judge Sonja Bivins said she has denied requests to seal 
documents that merely would be embarrassing to one party or another. She 
said she always holds hearings to determine if she will seal information. 
"Without seeing the document, without knowing the reasons why it should be 
sealed, I'm not going to give my blessing to it," she said.

Different in state court
Ellison, the Samford law professor, said federal criminal probes often are 
wide-ranging, involving multiple suspects and different locations -- 
sometimes even in other countries. Publicizing an indictment in such cases 
could not only hurt the chances of arresting co-conspirators but endanger 
people's lives as well, he said.
"Crime is taking on a completely different posture today as opposed to 40 
years ago, when the feds were basically chasing moonshiners," he said. 
But Soto said many of those same issues exist in state courts, which do 
not close hearings of defendants to protect ongoing investigations
. 

"If you tried that in state courts, they'd look at you and say, 'Well, 
then don't start the prosecution,'" he said.
Added Robert Kendall, the presiding Mobile County Circuit Court judge: 
"Nobody has had the temerity to suggest that to me."
 Kendall said state judges have no authority to close criminal cases.While sympathizing with the plight of prosecutors wanting to protect ongoing investigations, he said a citizen's constitutional rights are paramount. "If they had their druthers, they would try everyone at (the federal government's detention facility in) Guantanamo Bay rather than in open court," he said. "It's my belief that every defendant has a constitutional right to an open trial."
Kendall also took a dim view of withholding information in civil cases. He 
said lawyers must meet a high threshold before he agrees to that. 
"It seems to me to be becoming a more and more common practice where 
lawyers seek to have files or portions of files closed," he said. "I deny 
most of them."
Once the rationale for sealing a document has passed, it is the 
responsibility of the party that requested it to be removed from public 
view to ask the judge to unseal it. But judges acknowledged that lawyers 
do not always follow through.
"There's no prompt unless the government realized it's still sealed and 
wants it unsealed," said U.S. District Judge William Steele.
Federal courts cannot destroy sealed files or send them to federal 
archiving centers. But the courts have different policies regarding how to 
handle documents once they have been sealed. Some, for instance, set a 
deadline for opening up a sealed file and then send the document to the 
person who asked that it be sealed.

The federal court in Mobile, however, has no such policy. Unless it adopts 
one, court officials acknowledged, closed files will sit in locked drawers 
forever -- long after everyone involved in the case is dead.

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