Washington Supreme Court Holds Clemmons Shooting Records Not "Categorically Exempt" from Public Disclosure

In a unanimous ruling, the Washington Supreme Court held Thursday that police records may not be categorically withheld from public access, even in the face of claims that disclosure threatens the suspect’s fair trial rights. The Court confirmed that defendants who claim that adverse publicity threatens their right to an impartial jury must provide specific evidence of such a threat, and that courts must consider alternative means to assure fair trials before withholding public records.

The case is Seattle Times Co. v. Serko. Davis Wright Tremaine represented the Seattle Times in the case, which arose from a public records request by a Times reporter for police investigative records stemming from last year’s fatal shootings of four police officers by Maurice Clemmons.

The Pierce County Sheriff’s Office had agreed to provide the records, but release was blocked by the seven defendants who were charged as accomplices to the shooting. The defendants argued that the Public Records Act (PRA) did not require release of the records and that making the records available to the public would endanger their constitutional right to a fair trial.

In a May 20 order, Pierce County Superior Court Judge Susan Serko blocked release of the records. Judge Serko held that “the extraordinary level of local, state and national attention that this story garnered for days and weeks following the November 29, 2009 event” was sufficient to deny disclosure under the Sixth Amendment.

The Supreme Court’s ruling vacated Judge Serko’s May 20 order, finding it failed to hold the defendants’ claims of adverse publicity to sufficient scrutiny. Among other things, the opinion holds that records can be withheld on the basis of a defendant’s Sixth Amendment fair trial rights only if the court finds “with particularity that it is more probable than not that unfairness or prejudice will result from the pretrial disclosure.” A defendant’s fair trial rights does not allow for categorical nondisclosure of police investigative records, but rather may be withheld only after the judge has reviewed each document. The Court also must consider alternatives to disclosure, such as careful questioning of jurors, cautionary jury instructions, a continuance of the trial date, sequestration of the jury, or a change of venue.

The Supreme Court also rejected the defendants’ argument that the prosecutor has a duty to assert PRA objections in response to a records request. “[S]uch a requirement would run counter to the PRA’s policy of openness, as evinced by its mandate that exemptions be narrowly construed.”

In addition, the Court found that police records cannot be withheld under the PRA on the ground that they are the prosecutor’s work product. The Court held that there is “no authority for the ... contention that an investigator from a law enforcement agency is merely an arm of the prosecutor’s office for purposes of a work product analysis.”

Finally, the Court held that a decision by Pierce County Judge Bryan Chushcoff to seal records used during the trial of Clemmons’ sister, LaTanya Clemmons, was improper because he failed to engage in analysis needed to show a “compelling interest which overrides the public’s right to open administration of justice.” The records are among the more than 2,000 records that Serko had previously ordered withheld from public access.

The opinion can be read here.