LOUISVILLE, Ky. (WDRB) – In a move that restricts public access to information, Kentucky Chief Justice John Minton has signed an order allowing Louisville prosecutors to end a long-standing practice of filing evidence in criminal cases.
Prosecutors in the Jefferson Commonwealth’s Attorney’s office have for decades been required to provide evidence to defense attorneys and make it available in a public file.
Since 2013, however, “discussions about revising the rule began” because there were concerns that advances in technology had made it easier to access the evidence and disseminate it, according to a Jefferson Circuit Court filing Friday by Assistant Jefferson Commonwealth’s Attorney Ryane Conroy.
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.
The issue has come up recently. Prosecutors did not file evidence in the murder case of a 7-year-old boy shot and killed by a stray bullet in May, or in the case of a Louisville police officer charged with sexual assault in connection with a youth mentoring program.
WDRB News had 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 in August with the murder of Dequante Hobbs Jr., who was shot while sitting at his kitchen table.
On Friday, Conroy responded, pointing out Minton had changed the rule, in part to protect a defendant’s right to a fair trial and make it easier to find impartial jurors.
She said the prosecution and defense bar had worked together to craft a revision of the local rule.
Commonwealth’s Attorney Tom Wine said Louisville Public Defender Dan Goyette and prosecutors have discussed the rule change for years, also obtaining the support of local circuit judges, defense attorneys and clerks.
“The criminal justice system has agreed this is the best way to handle this information to protect the right to a fair trial and an impartial jury,” Wine said.
Goyette could not be immediately reached for comment.
Minton signed the order Feb. 8. Minton's chief of staff said the chief justice "didn't change the rule; he approved the rule that the Jefferson judges, the Jefferson Commonwealth’s Attorney and the Jefferson (public defender's office) requested."
“I think it’s unfortunate because in many cases the only way the public knows what’s going on in a criminal prosecution, which often ends up in a plea agreement or settlement, is the discovery filed in court,” said First Amendment attorney Jon Fleischaker, who represents WDRB. “This will add to the lack of information the public has about the criminal justice process.”
For example, in October, when prosecutors did initially release evidence in the cases of two former LMPD officer accused of sexual assault, court documents showed the mother of an alleged victim was “encouraged” by the head of the unit not to tell anyone about her daughter being sexually harassed by an officer in 2013.
In an interview with investigators, the woman said that in 2013 then-officer Kenneth Betts was sending her teen daughter “half-dressed … sexual looking pictures."
When the girl turned 16, Betts began trying to have a sexual relationship with her, according to a summary of the police interview included in about 1,000 pages of documents and pictures filed in Jefferson Circuit Court.
The mother claims she and her husband were “encouraged” by the “head of the Explorer program" not to speak with anyone else about her concerns, records show.
“[H]e wanted to keep it under the radar,” according to records released in the criminal investigation of Betts and former Officer Brandon Wood.
Because of this rule change, prosecutors no longer have to publicly release evidence in that case.
“A lot of what we’re finding out about what’s going on with the LMPD chief, the mayor’s lack of control over LMPD matters relating to criminal justice, we find out through discovery filed in court,” Fleischaker said. “We’re losing that source of information and that’s a problem. “
And Fleischaker said if a case ends without a trial, there is no guarantee the information would ever be made public.
Wine said 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. “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.
Wine said given the changes in technology, it has become too easy for sensitive evidence to be widely disseminated. He cited a an incident in which an attorney published a statement on You Tube about a witness of a crime and that person’s home was shot up two weeks later.
“The threat to witnesses has changed over the years,” he said.
Previously, a judge was allowed to seal evidence after holding a hearing to decide whether there is a “sufficiently compelling need” that “outweighs the public’s right to access court documents,” WDRB attorneys argued.
In 2008, the Kentucky Supreme Court allowed Louisville prosecutors to seal the evidence in the murder case against Cecil New, who was later convicted of killing 4-year-old Cesar Ivan Aguilar-Cano.
However, the judge in that case held a hearing and found releasing the evidence likely would "irreparably damage" New's right to an impartial jury.
Jefferson County was one of only a handful of counties in Kentucky that publicly released evidence before trial. The change brings Louisville into compliance with the rest of the state, Wine said.
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