Crime details in PB remain hidden after arrests thanks to prosecutor

By Ginny LaRoe (Contact), Mike Linn (Contact)

PINE BLUFF - Whenever police put a crime suspect behind bars in Pine Bluff, the state’s evidence against him remains hidden from public view because the prosecutor routinely asks judges to seal the arrest affidavit.

Stevan Dalrymple, the 11th Judicial District prosecuting attorney, wants the details from affidavits - both suspicions that led to an arrest and evidence that may clear a suspect - kept secret until the defendant pleads guilty or stands trial.

Over the past decade, Dalrymple has routinely persuadedjudges to seal probable-cause arrest affidavits, the public documents that summarize the details of an alleged crime.

No other prosecuting attorney in the state requests seals on cases on a regular basis, according to an Arkansas Democrat-Gazette poll of the state’s prosecutors.

Sealing an arrest affidavit helps ensure a fair trial, Dalrymple says in his proposed orders to seal each case. An affidavit may contain statements, admissions and information that, if released, could taint a trial, Dalrymple argues.

But open-records advocates and other prosecutors argue thatautomatically sealing such documents is a bad practice.

“If [Dalrymple is] just doing it as a routine, then that’s excessive and arguably contrary to the First Amendment access,” said Rick Peltz, an open-records expert and law professor at the University of Arkansas at LittleRock’s William H. Bowen School of Law.

“Unfortunately for him, the Freedom of Information Act works upon a presumption of openness, not closure. And I don’t think it’s the power of a prosecuting attorney to reverse that presumption.”

Instead of redacting information in affidavits on a caseby-case basis, Dalrymple said, he has decided to request that judges seal documents. When someone requests an affidavit under the Freedom of Information Act, he’ll decide what in the affidavit he can release.

“I ask that they be sealed to comply with the requirements of not being prejudicial against the defendant,” Dalrymple said. “It’s routinely done.” Other prosecutors sometimes mark out the names of witnesses, minors and underage victims before filing the arrest affidavits with the court.

“I guess we’ve reversed the situation,” he said. “Instead of redacting everything that needs to be redacted on the front end and keeping it unsealed with about two-thirds crossed out, we seal it and, upon request, we will then comply.”

While a judge may seal probable-cause arrest affidavits, routinely sealing them is unusual, said Tom Larimer, executive director of the Arkansas Press Association.

“Where is the public interest served in closing every single one of those public documents?” Larimer asked. “I don’t understand that.”

John Wesley Hall, president of the National Association of Criminal Defense Lawyers, said Dalrymple’s practice has irked him for years.

The Little Rock lawyer said he has visited the court clerk’s office to read the evidence against his client only to be denied access.

The “overreaching” practice has the potential to cover up “shoddy” police work, he said.

“I think the public, at some point, has a right to know” what’s in the affidavit, Hall said. “It helps keep the cops honest so they won’t pad the arrest warrant with frivolous information.”

Hall points to a battle in federal court in which the Arkansas Democrat-Gazette fought to open federal search warrants after they had been routinely sealed in the Eastern District of Arkansas.

In 2001, the newspaper filed a lawsuit challenging a threeyear practice of routinely sealing search warrants in federal court in Little Rock, even after the warrants had been served. Then-Chief U.S. District Judge Susan Webber Wright issued a general order prohibiting the continuous sealing of search warrants and related documents.

Hall noted that if search-warrant information should generally be disclosed, then certainly a document that has restricted someone’s liberties should be available for inspection.

“It’s just amazing to me that circuit judges let it go on so long,” Hall said of the judges in the 11th Judicial District-West.

Peltz also wondered why judges routinely grant Dalrymple’s requests because the arrest affidavits often are often read in open court during the probable-cause hearing shortly after an arrest.

“Judges are not supposed to simply grant requests at will,” Peltz said.

“A judge has a responsibility under both common law and the Constitution to make sure the courts operate in the open. Simply granting as a matter of routine the request to seal shirks the responsibility of the judiciary.”

Circuit Judge Berlin Jones, administrative judge for the 11th Judicial District-West, said he hadn’t heard concerns about sealing affidavits until a reporter contacted him.

“Now that it’s been brought to our attention, I am sure it will be reviewed and addressed,” Jones said.

“My momma always told me when I was a youngster: ‘I’m not telling you to change your mind, but if you find yourself on one side of the fence and everyone else on the other side of the fence, you need to examine your position.’ We’ve got that situation here now. We need to examine our position.”

Other prosecutors across the state say they file the probablecause arrest affidavits in circuit court, where they’re available to anyone.

In rare cases, prosecutors ask a judge to seal an affidavit to protect witnesses and the names of underage victims or other minors. Sometimes a judge will seal an affidavits if a prosecutor thinks release of the information will hinder the arrest of additional suspects.

Still, at least a half-dozen prosecuting attorneys in the state said they couldn’t recall ever asking to seal an arrest affidavit.

“It should be rare that the information in the affidavit isn’t available,” said Van Stone, prosecuting attorney in Benton County.

“It’s the public nature of our system.”

Earlier this year in Little Rock, authorities began sealing arrest affidavits in one murder case after the killing of a witness. Investigators blamed the media.

A Democrat-Gazette article revealed details from an affidavit, allowing the “bad guys” to learn who was cooperating with police in the slaying of Brent Pettus, said Tommy Hudson, a Little Rock police detective.

The January article detailed the recollections of an unnamed witness about the night someone gunned down 25-year-old Pettus in a botched drug deal.

In March, someone shot and killed that witness, Steven Okafor, and torched his car.

“The bad guys - the murderers - they read the paper too,” Hudson said. “They can read between the lines of who said what.”

In 2003, Prosecuting Attorney Henry Boyce of the 3rdJudicial District didn’t file the arrest affidavit in a capitalmurder case against Billy Dale Green and his son, Charles, even though police had arrested and incarcerated them

At the time, Boyce said he believed an arrest affidavit wasn’t a public record until he had filed formal charges, noting he had 60 days after the arrest to file those charges.

The Democrat-Gazette filed a criminal complaint against Boyce, who said Pulaski County prosecuting attorney Larry Jegley telephoned him.

Boyce, who said he withheld the documents to protect witnesses, said Jegley threatened to pursue criminal charges against him if he didn’t make the arrest affidavit public.

“The compromise we reached was that I was allowed to redact the names of the witnesses,” Boyce said.

“I did have to release the affidavit, which specified the facts of the case.”

Boyce “took it the wrong way, but I scared him,” Jegley said. “I called him and said: ‘Henry, unless the judge specifically orders them sealed, they’re public record.”

Even prosecutors who routinely make affidavits public find ways to keep the facts of the case secret until trial. In Faulkner, Van Buren and Searcy counties, investigators often just tell a judge in person what evidence they have against a suspect and don’t create a paper trail.

Marcus Vaden, prosecuting attorney for those counties, said that approach allows him to control what’s released before trial.

“The right of the public to know is important, but to me the right of the public to be safe and the right for the criminal justice system to do what it needs to do to protect society is of paramount concern,” Vaden said, adding that the secrecy helps ensure a defendant’s fair trial.

Still, he said, if an investigator writes up an affidavit, he rarely asks a judge to seal it.

Front Section, Pages 1, 2 on 09/30/2008