LOUISVILLE, Ky. (WDRB) – It was the biggest news story in Kentucky when Louisville Metro Police officer Brandon Wood and a former officer were arrested and charged two years ago with sexually abusing teenagers in the department’s youth mentoring Explorer program.
And when the first batch of evidence was made public in court records in October 2017, the details were damning not only to the officers, but to the taxpayer-funded police department, whose leadership is appointed by the city’s elected mayor.
The mother of one former participant in the program, for example, told police the head of the Explorer unit “encouraged” her not to tell anyone her daughter was being sexually harassed by an officer, according to the documents.
At that time, parents whose children participated in the program and other citizens could walk down to the courthouse and view that evidence.
But when Wood was sentenced last month to five years in prison for sexual abuse – despite facing up to 35 years behind bars – there was little detail given as to why prosecutors agreed to the plea deal, how police investigated his case and what exactly the officer was convicted of doing.
For decades, prosecutors from the elected Commonwealth’s Attorney’s Office were required to place that kind of information in criminal case files, allowing the public to view and scrutinize it. But that’s no longer the case, thanks to a rule that went into effect last year. Now the information is kept out of public view even after a case has concluded.
Meant to curb the spread of sensitive data such as crime scene photos and witnesses’ names, the change also has prevented the public and media from understanding how and whether justice has been served – and made it difficult for defense attorneys to gather evidence for trial in their own cases.
In fact, the practice of prosecutors forcing defense attorneys to ask judges for permission to review evidence runs afoul of “U.S. Supreme Court law, not to mention duties and ethical requirements imposed on prosecutors,” said Dan Goyette, head of the Louisville Public Defender's office.
He added: “The misinterpretation of the current rule by some prosecutors exacerbates the chronic problems that have plagued discovery in criminal cases for decades.”
As a result, said First Amendment Attorney Michael Abate, the public really doesn’t know the full details of what a defendant is alleged to have done.
“It’s hard to evaluate whether a sentence is fair and just, whether it should have been longer or perhaps been shorter,” Abate said. “And it’s harder to know whether there were any improprieties in the investigation and prosecution of the case if it’s all been kept secret.”
Prosecutors in Louisville had been among the few in Kentucky required to provide evidence to defense attorneys and make it available in a public file.
At the request of Jefferson Commonwealth’s Attorney Tom Wine, Goyette, local circuit court judges and others in the system, Kentucky Chief Justice John Minton signed an order in February 2018 ending the long-standing practice of publicly filing evidence.
The rule was changed, in part, because the rise of social media made it easier for lawyers and citizens to spread the information - crime scene photos, videos and the names and address of witnesses for example – that could put people in danger and make it more difficult to find an impartial jury, Wine said.
“It was for the protection of witnesses and also for defendants,” Wine said. “If the day before a big trial, the media ran a confession or ran photographs of a crime scene, it taints the jury.”
He noted that one witness's home was shot up after information about that witness from the court file was made public on social media.
In short, “times have changed,” Wine argued.
And Wine pointed out that if evidence doesn’t become public during a court hearing or trial, the public and media can make an open records request to police once the case has ended.
But getting the evidence, even once a case is completed, is no easy task. Most cases end in plea bargains.
In April, for instance, WDRB News asked for evidence in the case of Wyatt Williams, who was sentenced to 20 years in prison for the shooting death of 7-year-old Dequante Hobbs who was sitting inside his West Madison Street home in May 2017 eating a snack at his kitchen table.
While a few hundred pages of heavily redacted documents were turned over several weeks later, police told WDRB and The Courier-Journal that audio and video interviews, including the interrogation of Williams, would not be ready until late September.
LMPD also redacted names of witnesses, addresses, pictures and other information that used to be available in court files.
In Wood’s case, getting the evidence will be even more difficult. LMPD said the FBI Public Corruption Task force has that case. WDRB has requested the case from the FBI under the federal Freedom of Information Act, which typically takes much longer to produce records than Kentucky’s open records law.
Abate, who represents WDRB and other media outlets, said right now there is no way to know if justice was done in the Wood case without access to the evidence.
“That process (to request evidence from police) is slow, it takes time and if you do get the information, it is heavily redacted and is not as useful,” he said. “The Kentucky Supreme Court ruled over 30 years ago that news is news when it happens and the public shouldn’t have to wait until it becomes history to understand what was happening and that is extremely important in criminal justice.”
Evidence no longer being publicly filed has affected not only the public and media, but defense attorneys as well.
The rule change has erected a new barrier for defense attorneys who often obtain evidence from other criminal cases that involve witnesses, alternative suspects or even their clients.
In March, defense attorney Sarah Clay told Jefferson Circuit Court Judge McKay Chauvin she believed evidence helping her client may be part of a separate burglary case that she no longer could review in the public file. Clay argued that prosecutors had “alarmingly refused to disclose” evidence in the separate case.
“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.” (Prosecutors have since turned over the case to Clay.)
Defense attorney Rob Eggert made a similar motion the next month, arguing prosecutors were playing a “shell game,” arguing the rule allowed prosecutors to turn over only certain information in cases, according to a video of the hearing.
In an interview, defense attorney Ted Shouse said the process is now cumbersome. A witness for the prosecution may have multiple cases in different courts and could end with a judge ordering prosecutors to turn over some evidence, but not an entire case.
“(Prosecutors) are not the person in the best position to evaluate what may be exculpatory (evidence favorable to the defendant) for the defense,” Shouse said. “Making that (evidence) difficult to get mistakes the administration of a fair trial difficult.”
One solution, Shouse said, is for prosecutors to place evidence in a file after a case ends.
Goyette, the former head of the Louisville Public Defender’s office, which represents defendants who can’t afford representation, said the rule change was a compromise that fended off restrictions that could have been worse for defense attorneys.
The original proposal submitted by prosecutors, he said, “was extreme and onerous,” and everyone agreed to an alternative version.
Jay Lambert, Director of Training for the public defender’s office, said prosecutors are "conflating 'unfiled' with 'non-public' and, therefore, somehow, seeing it as confidential for all purposes.'”
Goyette asserted that misinterpretation and practice by prosecutors “was not the intent of the amendment to the rule, it is not consistent with the letter or the spirit of the rule, and it violates established U.S. Supreme Court law, including professional norms.”
As is, the rule change means defense attorneys can’t review all cases they need to unless they get a judge’s permission, or a prosecutor agrees to the request.
Still, for now, the rule stands.
Wine, the Commonwealth’s Attorney, says while there may be some extra steps for defense attorneys to go through, prosecutors are required to turn over all exculpatory evidence, regardless of what case file it may be in.
“If a prosecutor has information and doesn’t turn it over, and it’s exculpatory that helps the defendant, there are some serious consequences,” Wine said.
Placing the evidence in a case afterwards would still be problematic, he said, because witnesses could be targeted for retaliation.
By getting the information through the police department, where names of all witnesses would be redacted, “the public can still find out what happened but not at the expense of witnesses who were brave enough to come forward and (agree to) testify,” he said.
And he noted that Jefferson County is now in line with much of the rest of the state regarding evidentiary procedures, arguing policies here are still more favorable to the defense than much of Kentucky and other states.
Some counties in Kentucky still make evidence available to the public, like Franklin and Bullitt, for example, but most do not.
A New York Times article in 2017 pointed out that in ten states, prosecutors don’t even have to turn over key evidence to defense attorneys until just before trial – much less make it public.
And ultimately, Wine said, the majority of the evidence will be available through the state’s open records law.
“Sunshine, sometimes it’s delayed, but ultimately it’s going to come,” he said.
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