A new wrinkle

Two reporters have found not only secret dockets but altered ones.

From the Spring 2007 issue of The News Media & The Law, page 10.

By Rani Gupta

Two Miami Herald reporters had no idea they were just getting started when they reported last year that court cases were being kept off the public dockets in several Florida counties. Their findings had shocked even the chief justice of the state Supreme Court, who ordered an inquiry that eventually led the state to ban the practice.

But as the reporters would soon find out, the story went far beyond hidden cases.

In November, Dan Christensen and Patrick Danner reported that officials had altered court dockets in two Miami-Dade County cases of men acting as informants.

The reporters found that a secret docket was being used in the case of Salim “Johnny” Batrony after he decided to cooperate with prosecutors.

The dockets indicated that charges against Batrony had been dropped. In reality, he had pleaded guilty to money laundering. Records in a federal case indicated as much.

The reporters also detailed the case of Michael Scott Segal, who was arrested for attempted murder and kidnapping in 2001. He agreed to plead guilty and cooperate with a police investigation into corruption at a local jail. But the docket was changed to indicate that a trial was still pending, Segal’s attorney told the newspaper.

The Miami-Dade state attorney’s office told the Herald that this had been “an established practice” for years and that judges signed off on it.

“It’s a significant new wrinkle,” Christensen said, “because it’s an active lie as opposed to an omission.”

Prosecutors have said their practices are necessary to protect informants.

But Tampa media lawyer Carol LoCicero said the issue of changing records “goes pretty fundamentally to the integrity of records in our court system.”

“We have an open system,” she said. “Open’s no good if what you get access to isn’t accurate. So to the extent they have legitimate concerns about safety, something needs to be done besides faking documents.”

Studying the issue

The Herald‘s stories have caused Florida judges to take notice.

Danner and Christensen’s 2006 articles revealing that more than 100 cases were removed from the public dockets in Broward County and that other counties had “super-sealed” cases prompted the state’s high court to start looking into the practice. Eventually, in April 2007, the court prohibited courts from removing civil cases from the public dockets and tightened rules about sealing civil cases.

But the court left the issue of sealing — and altering — criminal records for another day.

In December, shortly after the story about the altered dockets appeared, Florida Supreme Court Chief Justice R. Fred Lewis asked a committee that was studying the sealing of criminal cases to also look at altered records. Lewis asked the committee to consider whether a rule governing or specifically prohibiting the practice is needed.

Florida law makes it a crime for anyone — including judges, clerks and other public officers — to alter or falsify records filed in any state judicial proceeding. Violating that law is punishable by up to a year in prison and a $1,000 fine.

The prosecutors association, in comments to the state Supreme Court, referenced an investigation where federal prosecutors created fake court cases to go after corrupt state judges. However, in that case, Florida’s chief justice and the U.S. attorney general signed off on the procedure.

That situation “involves creation of a fake case, not alterations to the record in a real one,” the public defenders association noted to the high court. A fake case, the public defenders said, is unlikely to mislead anyone except the target of the investigation.

Prosecutors have also emphasized the need to protect informants.

“Criminal organizations have become much more saavy [sic],” the association wrote, “and finding out who among them are cooperating with law enforcement has become a top priority.”

But the cases the Herald found may have implications beyond shielding informants.

One of the informants, Segal, told police that the body of a woman who disappeared in 1986 was buried under a waterfall. The Herald reported that police obtained a search warrant based on the information but never excavated the site. Since the story appeared, a North Carolina-based missing persons group has announced its plans to dig at the site.

A crowbar

Reporting on dockets that were changed can be as difficult as reporting on ones that were super-sealed, Christensen said. (He should know. As a reporter for the Miami Daily Business Review in 2003, Christensen broke the story of an Algerian-born man detained after the Sept. 11 attacks whose case in federal court was removed from the public docket and retained its secrecy all the way to the U.S. Supreme Court, where the Department of Justice was allowed to file its brief under seal.)

Christensen said he was tipped to the two Miami altered dockets cases by a source whom he declined to identify. But without knowing which cases to go after, finding proof can be difficult.

In the Batrony case, the reporters were fortunate there was a federal case where Batrony’s plea on the state charges was recorded.

“We had that as a crowbar to find out the rest of the information,” Christensen said. But when there is no such parallel case, reporters must find other ways to prove records were altered.

For reporters striving for accurate stories, altered dockets may pose an additional concern.

“As journalists, we all rely on the record to report what happened,” Christensen said. “So there’s a conundrum there. If you must rely on the record to report and the record has been falsified, you’re going to report false facts and be frustrated in telling what actually happened.”

Though the Herald did not report any information from the two altered dockets, Christensen said there is no guarantee the records they relied on in other cases are accurate.

“Have we as journalists relied on information in the court file and falsely reported things?” he said. “Who knows?”