UPDATE: Courier-Journal, WDRB, former officer fight proposed 'secrecy' in LMPD sexual abuse lawsuit
"Such secrecy would be inappropriate in this case which deals with very serious claims of abuse against" the city, police department and others, Jon Fleischaker, an attorney for the newspaper, wrote in a motion filed Wednesday.
LOUISVILLE, Ky. (WDRB) – Attorneys for two media organizations and a former Louisville Metro Police officer accused of sexually abusing a teen in the department’s youth Explorer program have objected to proposals that would have a judge order strict confidentiality over evidence in the lawsuit -- including sealing evidence and allowing anonymity for witnesses.
The newspaper and an attorney for former LMPD Officer Brandon Wood both filed motions Wednesday asking Jefferson Circuit Court Judge Judith McDonald-Burkman to deny the requests by attorneys for the alleged victim.
“Such secrecy would be inappropriate in this case which deals with very serious claims of abuse against” the city, police department and others, Jon Fleischaker, an attorney for the newspaper, wrote in a motion filed Wednesday.
The proposed protective order presented to McDonald-Burkman last week would allow for documents and other evidence to be filed under seal for 90 days, without a hearing and findings as to why the information should be kept from the public.
The proposed protective order also calls for the judge to remove the public and media from the courtroom while “confidential information” is being discussed. It also would allow witnesses in the case to have their identities shielded -- if they so choose.
WDRB attorneys Monica Dias and Sheryl Snider said in a motion Thursday that the judge must hold a hearing before removing people from a courtroom or sealing documents and show why the "public's constitutional and common law rights of access" are being violated.
The motion by attorneys Tad Thomas and David Yates come after a hearing last week as to whether the man who claims he was sexually abused by officers should be able to keep his name a secret – an argument rebuffed by opposing lawyers on First Amendment and other grounds.
Through his attorneys, “N.C.” is suing Metro government, the Louisville Metro Police Department, former LMPD Officers Brandon Wood and Kenneth Betts, Maj. Curtis Flaherty and the Boy Scouts of America.
The lawsuit claims Betts and Wood raped N.C. between 2011 and 2013 while he was a member of LMPD’s Explorer program, which mentored young people interested in law enforcement careers until Mayor Greg Fischer recently suspended it. The suit alleges that police covered up the accusations.
Attorney Kenneth Bohnert, an attorney for Wood, argued in a motion filed Wednesday that the proposed protective order by attorneys for N.C. would be impossible to implement.
Attorneys would be unable to subpoena work, school and criminal records for any alleged victims without identifying them, Bohnert wrote.
And, Bohnert wrote, given the Explorer program likely has “hundreds of past members,” how could defense attorneys determine who would be an important witness – and what information they have -- while keeping them anonymous?
Fleischaker said there is no Kentucky law that would allow “secret witnesses” and called it an “anathema to the fundamental nature of our justice system," according to the newspaper's motion.
In an interview, Thomas clarified that the order was not meant to include anonymity for all witnesses, just those who claim to have been abused.
In an email, Thomas said that the proposed protective order is “an attempt to negotiate an agreement with all parties regarding confidential information. The primary concern for our client continues to be protecting the identities of victims of sexual abuse, whether parties or witnesses. A sexual assault victim should not be victimized a second time simply because they want to seek justice in the courtroom. Courts and legislatures across the country have recognized the privacy rights of victims and we hope this court will as well.”
But the proposal would allow evidence in the case, such as depositions, or testimony taken from witnesses, to be immediately classified as “confidential information” and filed under seal, unless indicated otherwise.
In his motion, Fleischaker said automatically sealing evidence without justification, a hearing and a judicial ruling would be "unconstitutional."
And WDRB attorneys noted the protective order would punish media outlets - possibly holding reporters in contempt - for publishing confidential evidence.
Attorneys Dias and Snider argue the media has a First Amendment right to "publish information of public concern, even when the information is obtained unlawfully."
McDonald-Burkman plans to rule on whether the alleged victim should be identified sometime this month. She also is considering whether to delay the civil lawsuit while a criminal case proceeds and possibly even dismiss the suit, which attorneys for the former officers accused of abuse say was filed after Kentucky’s one-year statute of limitations expired.
The civil suit alleges that Wood and Betts abused and raped “N.C.” and made recordings of the sexual activity.
Police also are accused of concealing and destroying evidence, deleting information, refusing to comply with the Kentucky Open Records Act, in addition to conspiring to cover up the wrongdoing, according to the suit.
Police allegedly falsified reports, deleted phone records and audio files and destroyed other records, the suit claims.
The allegations against Betts date from as early as 2013, when a 16-year-old girl claimed the officer texted her shirtless pictures of himself and asked to meet her and "make out."
During that internal police investigation, a male teen told police that Betts offered him money for sex and promised to take care of a traffic citation in exchange for sexual favors.
The internal investigation by the department’s professional standards unit found that Betts violated police procedures but committed no criminal acts involving the girl.
There was no investigation into the male teenager’s allegations, and Betts avoided any discipline by leaving the department in April 2014.
Police Chief Steve Conrad closed that case “by exception” when Betts resigned, saying “no further action need be taken.”
Betts worked as a code enforcement officer in the suburban city of Rolling Hills until last month, when the city council voted to fire him.
“My client has been plastered over all the media with all kinds of false, lurid accusations,” Wicker said. “He lost his job. He has to answer to the kind of criticism of the community. This has been devastating to him.”
A hearing on the motions to dismiss the case is scheduled for June 30.
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