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Courts Caught in Dilemma on Opening Police Reports

Making them public is practicing open government, but victim and witness safety is an issue. Orange County is a stormy test case.

November 15, 2002|Stuart Pfeifer | Times Staff Writer

In a showdown that pits open government against privacy concerns, courts throughout California are grappling over whether to open police reports to the public after prosecutors file them in court.

News outlets and open-government advocates argue that once a judge sees a police report, the document should become public, available to anyone.

Police and prosecutors, wanting the reports kept under wraps, say opening them to public view would jeopardize the safety of crime victims and witnesses.

The debate has occurred in courthouses from Los Angeles to Oakland and is now the subject of a heated dispute in Orange County. In a victory for the news media, Orange County's presiding judge, Frederick P. Horn, ruled recently that any police report submitted to the court will be available to the public.

Orange County Dist. Atty. Tony Rackauckas responded to the new policy by vowing to stop filing police reports with all criminal cases -- thereby keeping them from the public.

Defense lawyers in Orange County predict that the district attorney's actions will bring plea bargains to a halt and force some defendants to spend unwarranted time in jail.

Until Horn's policy took effect Nov. 1, Orange County court clerks had placed all police reports in sealed envelopes and refused to allow the public to view them. Only judges, defense lawyers and prosecutors were given access.

News outlets have argued for several years that courts are required to make police reports public once they are submitted in court. Horn agreed to change the policy after an opinion he requested from the state Judicial Council concluded that the reports should be public, said Alan Slater, executive officer for the Orange County Superior Court.

Court officials in Alameda County made a similar change to open up police records after they received a similar opinion from the Judicial Council.

The decisions have won applause from open-government advocates, who say case law is clear that court records are public documents. They argue that making the reports available to all won't increase the risks to witnesses or victims because defendants already have access to the documents through the discovery process before trials.

"Why would you give somebody [who is] charged with a crime information that's not being given to the public? Who is being protected?" said Richard McKee, president of the California 1st Amendment Coalition. "We rely on checks and balances. How can the people make a determination that the system is operating fairly if they have no information?"

But law enforcement officials respond that opening up the police files, which contain the statements and addresses of witnesses and victims, isn't worth the risks.

"It would create a lot of problems for a lot of innocent people," said Fullerton Police Chief Patrick McKinley. "It's a delicate balance, the right of society to know and the right of privacy. We're struggling with that all the time."

In Los Angeles County, court officials so far have refused to make the reports public. But officials are in the process of reconsidering the policy and will soon be inviting comment from prosecutors and others, said Robert A. Dukes, assistant presiding judge for Los Angeles County Superior Court.

Court officials in Alameda County make police reports public when prosecutors file them. In San Diego County, the practice varies from court to court. Some judges review the reports, then return them to prosecutors, who do not make them available to the public. In other courts, the reports are kept out of case files.

Rackauckas, Orange County's district attorney, said in a letter to Judge Horn that he hopes the state Legislature will enact a law keeping police reports private.

In the meantime, Rackauckas said, his prosecutors will now send judges a recommended sentence in writing but not a police report.

Rackauckas' plan does not sit well with some Orange County defense attorneys. Because defense attorneys have traditionally relied on police reports to help determine plea offers, critics say Rackauckas' new system will cause big delays.

"No lawyer is going to plead a client guilty without the police report, or rely on the recommendation of the prosecution," said attorney John Barnett, a prominent criminal defense lawyer. "I think it's going to be challenged, and it's going to create a huge backlog and a mess unnecessarily, and I don't know for what good goal. The reasoning escapes me."

Rackauckas declined to comment.

Court officials are anxiously waiting to see how things go, with Horn's decision and Rackauckas' response.

"I'm not ready to push the panic button," Slater said. "Any change, it takes a while to get used to it. So the first few days can be ragged."

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