Managing editor: Why open arrest warrant affidavits are important

It’s always awkward for a news organization to write about a story it’s involved in, to be part of the news. That’s been the case as we filed a motion to intervene in a Douglas County rape case in the interest of open records.

I want to take a few minutes to explain why we thought it was important to insert ourselves into the legal proceeding.

For 30-some years in Kansas, the documents that law enforcement officials file with courts to win the right to arrest someone or to search their property have been closed records. This year the Kansas Legislature changed the law, and now the presumption is that those records, arrest warrant and search warrant affidavits, are open to any member of the public who seeks them.

The idea is that the public and the people charged with crimes have a right to know on what grounds law enforcement seeks to deprive people of their liberty or privacy. The public needs to be sure that government prosecutes or jails people only with good reason, and they can only be sure of that if the reasoning is made public.

Since the law went into effect July 1, the Journal-World has routinely requested each of these arrest warrant affidavits. So far, we’ve requested 15. Three were sealed, meaning judges decided not to release them in spite of the new law. Four were released after they were redacted; one was released without redactions; and we are awaiting word on five.

We had concerns about the sealed affidavits. Judge Sally Pokorny, at the request of the prosecution and defense, sealed the affidavit for Carlton Grass, who is accused in an alleged rape this summer in downtown Lawrence.

Judge Kay Huff sealed affidavits for two men accused in two alleged rapes in a Kansas University residence hall.

We disagree with these decisions because they did not meet the letter or spirit of the new law, which seeks more transparent proceedings where possible.

Our attorney filed a motion to intervene in the Grass case and sought to have the affidavit released, with redactions if necessary. We argued that the test set forth in the new law — that information contained in affidavits could be withheld only if it would damage the case — had not been met.

The prosecution’s concerns were that a fully released affidavit, 17 pages filled with salacious detail and verbatim witness testimony, could taint the testimony of witnesses who had to tell their stories in court after reading about the affidavits in the newspaper.

The defense was worried that some of the more intimate and sad details in the affidavit could affect his client’s ability to get a fair trial.

After a Nov. 6 hearing, Pokorny decided to release the affidavit with redactions agreed upon by all parties. Our lawyer, Max Kautsch, was able to deliver us a redacted copy of the affidavit on Wednesday. Of course I don’t know what information is left out, but what is there provides a fair and adequate sense of what law enforcement knew that led to the decision to arrest and charge Grass, which we can use as we continue to write about the case.

The process was productive because it gave all parties a chance to consider the competing interests and, we think, come to a conclusion that serves them all. Our hope is that this becomes the standard for Douglas County District Courts.

Pokorny said it well in court: Transparency fosters a sense of trust in the justice system.