Virginia Lawyers Weekly//September 25, 2023
Virginia Lawyers Weekly//September 25, 2023//
On remand from the Virginia Supreme Court, a motion to revoke bond and two exhibits will be unsealed because there is no compelling government interest in keeping those documents sealed.
“This decision examines the issue of whether the Commonwealth’s ‘Motion to Revoke Bond’ and the two attached exhibits should remain sealed, either in whole or in part. … [T]he Supreme Court of Virginia held these documents were judicial records subject to the open courts doctrine. …
“As judicial records subject to the open courts doctrine they may remain sealed only if sealing is required by a ‘compelling governmental interest’ and is narrowly tailored to serve that interest. Press-Enterprise Co. v. Superior Court Cal., 464 U.S. 501 (1984).”
“The City claims unsealing the Motion and incident reports … would negatively impact the City police department’s ability to obtain compelled statements needed for future internal affairs investigations.
“They assert that statements from police officers during internal affairs investigations are confidential and unsealing the judicial records would prevent ‘full and complete’ investigations of officer conduct in the future. …
“The City’s focus in explaining its ‘compelling governmental interest’ is on statements from police officers, and more specifically — the compelled statements from police officers that are included in the internal affairs’ investigative files. The City asserts officers in future investigations would be deterred from making these statements if this court unseals the Motion and the two incident reports.
“The Commonwealth and Defendant Pearson did not proffer a compelling governmental interest for the continued sealing of the judicial records, nor did they state arguments or facts relevant to the constitutional issue. However, the Commonwealth asked that the officers’ names be redacted from the judicial records.
“The Publishers argue the City’s ‘compelling interest is based on [a]series of fictions.’ … The Publishers claim there can be no compelling governmental interest in sealing the judicial records here for several reasons, including the fact that information about the internal affairs investigations is in the public court records. …
“The Publishers also state the Commonwealth redacted the incident reports and removed compelled statements, and that other information in the reports is not confidential because Defendant Pearson confronted the officers at the incident scenes in 2012 and 2015 and was aware of their reports.
“In addition, the Publishers claim officers know internal affairs investigative files are not and will not be confidential, citing§19.2-20l(C) of the Code of Virginia.
“This statute provides that internal affairs investigative records relating to complaints against law enforcement officers shall be provided to the Commonwealth’s Attorney. It also states officer statements “may” be redacted, but redactions can be challenged in court by the Commonwealth’s Attorney.
“The Publishers claim officers know the files can be viewed by the Commonwealth, subpoenaed by a court, and become judicial records subject to the open courts’ doctrine.
“Therefore, the Publishers conclude there can be no compelling interest in continued sealing in this case to deter officers from making statements because, inter alia, (1) there are no confidential statements in the judicial records, and (2) information in the judicial records here has not been confidential, and similar information will not be confidential in the future.”
“Upon consideration of the relevant law, continued sealing of the judicial records at issue in this case is no longer warranted.
The City proffered that future harms would occur to police department investigations if compelled confidential statements were needed or desired from police officers. However, the constitutional inquiry requires a case-by-case fact specific analysis, rather than a broad general statement. …
“The claim that disclosure of the judicial records here would deter officers from making compelled confidential statements in future investigations, and therefore the judicial records here should remain sealed, is a ‘conclusory assertion’ and cannot be supported — in this case — by ‘specific factual findings.’
“The Supreme Court of Virginia’s remand instruction requires consideration of ‘the status of the proceeding.’ This court entered a final judgment in this case.
“The internal affairs investigations (referenced in part or in whole in the judicial records) ended before the filing of the criminal case.
“The City’s governmental interest relates only to the potential impact of disclosing these judicial records, which include documents from a personnel file and a closed internal investigation, in a closed criminal case — not to disclosing police department files in an existing internal affairs investigation and a pending criminal case — on future investigations.
“Therefore, the court carefully reviewed the information in the Motion and incident reports, and the specific facts in this case.
“It is undisputed that there are no compelled confidential statements in the judicial records here. There are no statements by officers in the 2015 incident report or the Motion.
“The fact that Defendant Pearson ‘elected to invoke his Miranda rights and not give a statement’ (2015 incident report) supports a finding that officers subject to internal affairs investigations may invoke their Miranda rights and refuse to make statements. The majority of the 2015 report includes information from civilians and the attorney in the Commonwealth Attorney’s office.
“There was no information provided that would support a finding that there were confidential statements in the 2012 incident report. This report includes interviews with the officers who confronted Defendant Pearson in 2012. Defendant Pearson knew the names and ranks of the officers in the 2012 and 2015 incident reports because they were at the scenes of the incidents.
“This court cannot find, based on the records in this case, that Pearson has kept their names, their ranks, or their information confidential since the incidents. …
“More importantly, there are no facts supporting continued sealing of information already known to the public. The facts of the incidents, the nature of the investigation, the parties involved in the investigation, and the findings and conclusions of the investigation are in the April 30, 2021 transcript, unsealed by the Supreme Court of Virginia.
“The Court found no information in the transcript of the bond hearing that would justify remand for consideration of a compelling governmental interest. …
“Continued sealing of the Motion and the two incident reports does not pass constitutional scrutiny. Accordingly, all sealed judicial records in this case are hereby unsealed.”
Commonwealth v. Pearson, Case Nos.: CR20001479-00 to CR20001484-00, July 27, 2023. In the Circuit Court of the City of Newport News (Spencer) Opinion and Order. VLW 023-8-054, 13 pp.