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A court’s baffling suppression of police reports

Post by Patrick O'Callahan on June 8, 2010 at 7:45 pm with No Comments »
June 8, 2010 5:14 pm

This editorial will appear in tomorrow’s print edition.


That’s how we reacted a few weeks ago to a judge’s order to block the release of law enforcement reports about the shooting of four Lakewood police officers last November. Such documents are routinely released – for very good reason – once officers have caught the suspects and wrapped up the investigation.

Susan Serko of the Pierce County Superior Court got the law wrong May 20 when she sided with defense lawyers representing the seven people accused of assisting cop-killer Maurice Clemmons. The attorneys persuaded her to stop the Pierce County Sheriff’s Department from releasing more than 2,000 pages relating to the cases, arguing that publicizing the information might deny their clients a fair trial.

This week, Serko delivered a double-huh decision. Admitting that she’d misunderstood key points of law in her original ruling, she still reaffirmed the ruling. The Seattle Times, which – joined by The News Tribune – was trying to pry the reports loose, plans to appeal. Serko’s decision cries out for reversal.

The Washington Supreme Court has already upheld pretrial disclosure of investigative documents – in a 1999 decision that overrode an earlier ruling Serko inexplicably relied on. But let’s leave precedents aside and consider what’s at stake for justice in general.

Criminal trials are open to the public in this country – contrary to another one of Serko’s original assertions – because the public has a constitutional right to know how cases are handled and how their courts operate.

The public has a similar stake in knowing how police and prosecutors operate. Police reports allow outsiders to look at probable cause, search warrants, witness statements and other raw evidence. A lot of criminal justice happens during investigations and in the prosecutor’s office, where charging decisions are made.

The public ought to be privy to as much of this information as possible during an investigation and the rest of it once the investigation is done. A miscarriage of justice could get a long way down the road if outsiders can’t get at the facts before a trial that may not happen for months.

Publicity must be balanced against the constitutional right to a fair trial, of course, but there’s no evidence that the release of these reports would have kept these seven defendants from getting impartial juries. Their attorneys offered no such evidence, and Serko herself conceded that the harm was speculative. Most Americans understand that defendants are innocent unless proven guilty in court.

The biggest problem with Serko’s decision is its sweeping nature. It simply assumes that the release of investigative reports prior to trial threatens defendants’ right to a fair trial. Its logic isn’t restrained by the Public Records Act or any requirement for concrete evidence.

Forget the Clemmons case. Potentially, any defense lawyer could rely on the reasoning of Monday’s decision to suppress negative police findings about any defendant. Serko is a respected judge, but this was not her finest hour. This baffling decision must not stand.

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