Douglas County District Judge Sally Pokorny ruled Thursday that a redacted version of a previously sealed probable cause affidavit should be released to the public.

Last month, Pokorny sealed the document that justified Carlton M. Grass’ September arrest on suspicion of rape after both the prosecution and defense agreed the affidavit should be withheld from the public. The attorneys had argued that potential witnesses could be affected by seeing detailed testimony from others and that Grass’ right to a fair trial could be at stake.

Grass is charged with one count of rape in connection with an alleged incident in downtown Lawrence on June 15.

On July 1, a new law went into effect that presumes that an arrest warrant is a public document after an arrest occurs. Any member of the public can request the document, and the court must decide to redact, release or seal probable cause affidavits within 10 days.

Citing the new law, the Lawrence Journal-World filed a motion in October to challenge the decision to close the Grass affidavit.

At a Thursday hearing on the issue, Assistant Douglas County District Attorney Eve Kemple said the affidavit should remain sealed because disclosure could taint witness testimony.

At issue is an especially detailed, 17-page affidavit filed after the new law went into effect but, according to Kemple, written before. The law enforcement officer who wrote the affidavit had no expectation that it would be made public, she said.

Kemple argued that witnesses and potential witnesses would have access to the detailed information, including others’ testimony, if the affidavit were released, and that could taint testimony during the trial.

“The state has no control over what the newspaper prints,” Kemple said. “(Disclosure) is absolutely going to affect and interfere with a criminal investigation.”

Grass’s attorney, Adam Hall, argued some of the document’s information “only appeals to the prurient interest,” and that disclosure of such graphic detail would hurt his client’s right to a fair trial.

The Journal-World’s attorney, Max Kautsch, emphasized that in Kansas court history, no trial has ever been reversed due to pretrial publicity.

“There is no basis to show that the disclosure of a reasonably redacted affidavit would interfere with the defendant’s right to a fair trial,” Kautsch said.

Kautsch said that affidavits should be disclosed unless the prosecution or defense can prove that releasing them would — not could — harm the proceedings.

After hearing arguments from the three lawyers, Pokorny ordered that a redacted version of the document be released.

“We have a court system that encourages openness,” Pokorny said. “For the general public, they rely upon the news media to tell them what is going on at the courthouse.”

Pokorney also pointed out that much of the information under seal already has been discussed in a public court hearing.

Pokorny, Hall, Kemple and Kautsch will collaborate on the redaction. Kautsch was ordered not to share the contents of the unredacted affidavit with the newspaper.

“We want untainted information,” Pokorny said. “I think we can protect the state and defendant’s interests and protect openness through the proceedings set forth in the law.”

Douglas County District Attorney Charles Branson said when new laws are put into effect, it can take time for all parties to adapt to new procedures.

“This is a new statute and the attorneys and judges are trying to learn the proper procedures for handling these requests and what should and should not be released,” Branson said.

In the future, Branson said his office will aim to propose redactions and ask for a sealing only as a last resort.

“Obviously the default is to release the affidavits with minimal redactions, however the statute does provide for sealing of the affidavits in certain circumstances,” Branson said.

Two probable cause affidavits remain sealed in Douglas County. On Oct. 23, District Court Judge Kay Huff sealed the affidavits of two Kansas University students charged with rape after two women alleged they were sexually assaulted in KU’s Hashinger Residence Hall.

In total, the Journal-World has requested 10 probable cause affidavits after July 1. Aside from Grass’ and the Hashinger Hall affidavits, four were redacted and released, and three more are awaiting court action.

To date, no affidavits have been released in their entirety.