Wash. high court vacates orders shielding police records

The Washington state Supreme Court Thursday vacated two separate trial courts' orders, both of which withheld police records from public access under the state's open records laws — even after some of the records requested were offered as exhibits in a criminal trial — on the grounds that disclosure would infringe upon a defendant’s right to a fair trial.

The high court ruled that before a record could be withheld from disclosure, defendants must provide evidence that disclosing records would harm the fairness of their trials and that courts must consider alternative measures.

The ruling relates to a Nov. 29, 2009, incident when Maurice Clemmons shot and killed four uniformed officers at a Seattle coffee shop. A few days later during a routine nighttime patrol, an officer fatally shot Clemmons, 37, after Clemmons reached for his stolen gun.

Subsequently, a Seattle Times reporter requested records from the Pierce County Sheriff’s Office relating to the investigation of the shootings. The sheriff received other requests and was prepared to release 45 categories of police records, including incident reports, witness statements, transcripts of recorded interviews and other agency communications.

However, in March, seven alleged accomplices of Clemmons motioned to block “any and all” of the documents under a provision of the Public Records Act, claiming the records were exempt because releasing them would harm their right to a fair trial.

Pierce County Superior Court Judge Susan Serko examined the disputed documents and issued a May 20 order ruling that the documents were properly exempt from disclosure on such grounds.

Due to “the extraordinary level of local, state and national attention garnered for days and weeks following the November 29, 2009 event, further release of investigative materials and details may jeopardize” a defendant’s right to a fair trial, Serko wrote.

Three days earlier, trial exhibits, including some of the records ruled to be exempt, were discussed at the heavily reported and televised trial of Clemmons’ sister, Latanya Clemmons, an alleged accomplice.

Counsel for Eddie Davis, another alleged accomplice, petitioned that all trial exhibits at Latanya’s hearing be sealed. On June 9, Judge Bryan Chushcoff ordered all these exhibits sealed.

The Times petitioned the Supreme Court for a judicial order to unseal the documents, which the court granted. The Supreme Court ruled that the judges’ orders didn’t identify the harm and distortion that releasing the documents would cause, nor did the judges offer alternative measures to withholding the records. Also, the provision under the Public Records Act the defendants relied upon was a statute that cannot exempt records by itself, the court wrote.

In addition, “court rules require a hearing before court records are sealed or redacted, and this procedure was not followed,” the opinion said.

Eric Stahl, who represented The Seattle Times, said he was happy with the decision because more and more defendants have attempted to block police records from the public’s view on the grounds that pre-trial publicity would alter a fair trial.

“Frankly it hadn’t succeeded from the defendant’s side in too many cases, so in one sense it’s a confirmation of what, from the media’s side, we think the law has been all along,” Stahl said. “It puts an end to a legal argument that we think has been wrong all along.”