An attorney representing the Great Bend Tribune appeared before Barton County District Judge Ron Svaty on Friday, explaining the newspaper’s earlier request for the release of probable cause affidavits in the arrests of three men charged with first-degree murder. He did not immediately rule on the Tribune’s, motion.
In a related matter, Judge Svaty granted a so-called “gag order,” which restricts extrajudicial comments on the cases.
The Tribune was represented by Maxwell E. Kautsch. There to argue against the motion were Barton County Attorney Doug Matthews; defense attorney Richard Ney, representing Alejo Villegas; and attorney Steven Mank, on behalf of defense attorney Kurt Kerns, representing Juventino Villegas. Defense attorney Paul Oller, representing Adam Suppes, was not present but Svaty said his ruling will apply to all three cases. The suspects are charged with first-degree murder in connection with the Nov. 15, 2015, shooting death of Aron Villegas in Barton County.
A new law
In May 2014, the Kansas Legislature approved legislation to change the law on probable cause affidavits for arrest warrants and search warrants. The changes went into effect July 1, 2014.
“The Tribune wants to highlight the fact that this new statute has been passed,” Kautsch said. “The purpose is to serve the public interest and monitor the public justice system.”
The statute states that probable cause affidavits can be sealed or portions can be redacted if publishing information from them would create a clear and present danger to the fairness of a trial. Kautsch cited Kansas City Star Company v. Fossey to support the motion.
Responses to the Tribune’s motion mention the newspaper’s past coverage of murder trials for Jeffery Chapman and Adam Longoria. In both cases defense attorneys sought a change of venue, citing pre-trail stories in the paper.
But Kautsch said the Chapman story that drew complains was based on court records.
“The paper quoted directly from the motion,” he said. “How can the newspaper be faulted for accurately reporting on a public document?”
Adam Longoria’s appeal based on pretrial publicity was unsuccessful.
“That case did go all the way up to the Kansas Supreme Court,” Kautsch said. “The court found the Tribune reported fairly and accurately.”
The purpose of reporting is not to convict defendants in the press, he continued.
“It’s not a lynch mob mentality. The Great Bend Tribune is a community newspaper. The public interest is served by the disclosure of these affidavits.” With all of the “rumor and hearsay out there” in this case, he asked, “Wouldn’t the facts be better?”
“Question mark journalism”
Defense attorney Ney said probable cause affidavits are not presumed to be open, public record. After a warrant is executed, they are available in accordance with the requirements of the statute, which requires review by a court.
“They are sealed until the matter is brought before the court,” Ney said.
Although the Tribune cited the Fossey case, Ney added, “The Legislature didn’t put that language in there. This is not, as the Tribune believes, a matter of them asking and you having to turn (the affidavits) over.”
He also took exception to the premise that “the Tribune just wants factual matters.”
Ney referred to the Tribune’s Dec. 13, 2015, article written by Managing Editor Dale Hogg about the newspaper’s efforts to gain information about this case. (The story was posted online on Dec. 12.)
“But, what really happened on that fateful morning?
“Is there more to the story?
“Were there gangs involved?
“Was it racially motivated?”
“That’s the lowest kind of journalism that exists — speculation,” Ney said. “The Tribune is quite willing to go on innuendo and question mark journalism.”
He said the affidavit is eight pages long, “much of which we all agree couldn’t be admissible.”
Ney said this information is not needed to inform the public.
“They have the basic facts,” he said.
Right to fair trial
Attorney Mank began his arguments where Ney left off, with the Tribune’s coverage of this case.
“When I read the Dec. 12 article, quite frankly, I was shocked. I’d never seen anything like it,” he said.
“The court has the right to guarantee the defendants’ right to a fair trial,” he continued. “The press can come sit in on the open hearings and hear the accusations.”
Matthews said that when the Tribune first requested the affidavits, his office asked that they be sealed, which Svaty did. “Our reason remains the same.”
The cases of Longoria and Chapman “did not have an open affidavit statute,” he said. In the current matter, when there are court hearings on the cases, “those matters are going to be open to the public and they can be reported on.”
Kautsch said the public shouldn’t have to wait for hearings that could be months away, or a year from now. Any information in the affidavits that might prejudice a jury could be redacted, balancing the interests of the public’s right to know and the defendants’ rights to fair trials.
“There is no reason to completely seal the affidavits.”
Svaty noted that the statute is new, saying, “This is my first time hearing a motion like this.” He indicated he plans to talk to other judges who have made rulings on the statute.
Svaty did grant what was referred to in court as a “gag order.” The “Protective Order Restricting Extrajudicial Comments,” to be filed by Ney, orders that until this case is over, “all participants, including potential witnesses, are to refrain from making or authorizing extrajudicial comments and disseminating or authorizing the dissemination of information to the media and the public.”
Courthouse personnel are not allowed to disclose information relating to the case that is not part of the public records of the court to any person without express authorization by the court. “Extrajudicial” means not forming a valid part of open legal proceedings in the case. “Comment” includes any statement, observation, remark, interpretation or explanation expressing an opinion, attitude or judgment.