LOUISVILLE, Ky. (WDRB) – A year ago, at the request of prosecutors and other court officials, Kentucky Chief Justice John Minton signed an order allowing Louisville prosecutors to end a long-standing practice of publicly filing evidence in criminal cases.
While the move has restricted public access to information for citizens and the media, two defense attorneys say it also is making it difficult for them to obtain evidence to defend their client.
Defense attorney Sarah Clay told Jefferson Circuit Court Judge McKay Chauvin on March 20 she believes evidence possibly favorable to her client may be filed in a separate burglary case.
However, because of the change in the local rules, Clay cannot get access to the evidence in that case in the public file and, she said in a motion, prosecutors have “alarmingly refused to disclose it.”
The dispute highlights how the rule change, meant to prevent sensitive information from being spread widely on social media, has erected a new barrier for defense attorneys who sometimes obtain evidence from other criminal cases.
Prosecutors in the Jefferson Commonwealth’s Attorney’s office had for decades been required to provide evidence to defense attorneys and make it available in a public file.
Last February, however, amid concerns that advances in technology had made it easier to access the evidence and disseminate it, court officials convinced Minton to change the rule.
Now, the only way the public will see evidence involving a case is if the material happens to surface in a public court hearing, or through an open records request to the Louisville Metro Police Department, which would only be fulfilled after prosecutions have concluded.
And defense attorneys now only have access to evidence in the case of the defendant they are representing.
Clay and co-counsel Ted Shouse say prosecutors are using the change in the rule to prevent them from gathering evidence that could help their client, who is charged with sodomy and sexual abuse.
“I think the law is very clear on this,” Clay told Chauvin. “I think we are entitled to all the discovery (evidence) in that case.”
At issue is a separate burglary case involving relatives of the alleged sexual assault victim being charged with stealing money from the father of Clay's client.
The bond to get Clay's client out of jail pending his trial was paid for by his father. The safe in which the man kept his retirement savings, including the $50,000 in bond money and funding for a defense attorney, was allegedly stolen by the relatives of the alleged sexual abuse victim and others.
That burglary case is pending.
In that case, according to Clay, are taped statements referencing her client that she wants access to, among other evidence.
In a motion, Clay said she is unable to get the evidence from the public file because of the rule change last year and her multiple requests to get it from prosecutors have been denied.
“The purpose of that rule change was supposed to protect the defendants and their right to a fair trial,” Clay told Chauvin. “It was not supposed to hide evidence.”
The refusal to turn over evidence in the burglary case, Clay said in a motion, at best "reflects a fundamental ignorance of the Commonwealth's discovery obligations, at worst is is an attempt to conceal evidence."
Assistant Commonwealth’s Attorney Danielle Yanelli told Chauvin all relative documents and evidence in the burglary case had been or will be turned over to Clay.
But Clay wants to see all of the evidence in the case, as prosecutors may not know exactly what would help her defense.
“The resolution of this is simple, which is just to turn over the discovery,” she said during the hearing. “We are entitled to it.”
Chauvin said he would review the issue – and the evidence in the other case – and determine what, if any, evidence should be turned over. He has not yet ruled.
The issue of no longer publicly filing evidence first came up early last year. Prosecutors did not file evidence in the murder case of a 7-year-old boy shot and killed by a stray bullet, or in the case of a Louisville police officer charged with sexual assault in connection with a youth mentoring program.
WDRB News asked a judge to compel the Commonwealth’s Attorney’s office to publicly file evidence in the murder case against 23-year-old Wyatt Williams, as specified by local court rules. Williams was arrested and charged with the murder of Dequante Hobbs Jr., who was shot while sitting at his kitchen table.
The prosecution and defense bar had, they said, worked together for years to craft a revision of the local rule, which Minton signed off on last Feb. 8. The change was meant, in part, to protect witnesses and assure the defendant got a fair trial without pre-trial publicity involving specific details of the alleged crime.
Commonwealth’s Attorney Tom Wine said he could not comment on specifics of the pending case but "obviously we will follow the Court’s ruling and understand and honor our obligation to provide exculpatory information that is in our control or the control of an agency with whom we work."
Last year, Wine said that the public can see evidence during a trial or get it through an open records request after a case has ended.
“We’re not restricting the public’s information,” he said at the time. “It’s all going to come out at trial."
The majority of cases end in plea agreements before trial. For those that go to trial, it can take years.
Wyatt Williams took a plea deal and was sentenced in court Monday morning to 20 years in prison for the death of Dequante Hobbs.
WDRB immediately filed an open records request with the Louisville Metro Police Department for evidence in the case.
Alicia Smiley, a spokeswoman for the department, said the records needed to be copied and reviewed for redactions. The evidence will be available by May 14, she said.
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