Update, 2/9/10: See a follow-up post, Update: The Secret Warrants of Walworth County.
A tenured surgeon walks into an operating room with a pair of chopsticks. Someone notices that the surgeon is carrying two wooden sticks instead of a scalpel. The surgeon replies, “Now that we’re having this discussion, I’ll address it.”
What would you think, if you heard that conversation? You might think that a surgeon should be aware of the instruments he uses, and would require no reminding from others. Any surgeon, of course, but especially one with a long tenure in that profession.
Whitewater sits, mostly, in Walworth County, where a similar story – about law, not medicine, about sealed warrants, not scalpels – recently made the pages of the Janesville Gazette and Walworth County Gazette:
Here are the pertinent details, from the story:
ELKHORN – In some Wisconsin counties, sealed court documents hold back details from search warrants for a limited time while investigations are ongoing.
In Walworth County, seals have no time limit, and some records could disappear from the public eye altogether.
Motions to seal search warrants in Walworth County ask that all documents and their existence be kept under wraps. The seal acts as a seal on itself, as if the search never happened, leading some warrants to be kept away from public scrutiny.
The procedure gives law enforcement the power to search homes virtually undetected. The paper trail disappears, and interested parties are unable to find out the basis for the execution of a search warrant or how it was conducted.
Worse still, Walworth County’s long-tenured district attorney, Phil Koss, acknowledges in the story that
It has happened before, District Attorney Phil Koss said.
“The problem may come when the matter is sealed, and then we never get it filed, there’s no referral from law enforcement or for whatever reason the investigation doesn’t pan out,” Koss said.
“With really no active mechanism to tickle them, have them brought up again so that people remember to unseal them, they get filed with the clerk, the clerk is not going to unseal them, and the judge is not going to think about them until we ask him to.”
The reasons to have a limited and definite time for a seal are clear, as the story ably sets out:
Bill Lueders is the president of the non-profit Wisconsin Freedom of Information Council and news editor at Isthmus, a weekly newspaper in Madison. When documents are sealed, he said, the custodian of records should still provide as much information as possible without compromising the contained information.
“It’s important that we do not have secret courts in this country, that everything that happens in the court of law is public,” Lueders said. “The courts have tremendous amounts of power to make decisions that affect people’s lives, and it’s appropriate that there be a maximum amount of transparency.”
The goal is to protect the public’s interest to promote open and accountable courts, he said.
“The fact is that police and prosecutors occasionally do things that they shouldn’t,” Lueders said. “And for that and among other reasons, a high level of transparency is in everybody’s interest.”
Bob Dreps, an attorney at Madison-based Godfrey and Kahn law firm, said Wisconsin law is unclear, and there is no standard practice when it comes to sealing search warrants. It’s not spelled out in statutes, so each county does it differently, he said.
“The expectation is that search warrants, after they are returned, will be sealed only for good cause and only while that good cause exists,” said Dreps, who regularly represents media companies in court. “So if a prosecutor persuades a judge to seal a subpoena, it should be for a defined period of time.” ….
In Dane and Rock counties, court officials put out summaries of executed search warrants, including information about the ones sealed and how long the seal will remain.
Why should we have fewer safeguards on the power of government in Walworth County than in Rock or Dane counties? There is no principled reason at all.
How very odd, though that “Locally, Koss said changing the language on applications for seals is a start that would come from Koss’ office …” and yet D.A. Koss declares that “It’s never come up before,” Koss said. “Now that we’re having this discussion, we’ll address it.”
Oh my – the Walworth County District Attorney’s office initiates these requests, but it takes a newspaper to bring the matter to the attention of the lawyers in that office? They didn’t otherwise think about the nature of their own requests?
These gentlemen in high Walworth County positions expect deference and praise for their work, but depart time and again from the better standards of Wisconsin and America.
One sees in this story what a solid story, from a serious newspaper, looks like. If other newspapers and so-called news sites had troubled themselves these many years to do the same, we might not find ourselves so ill-governed.
Yet others haven’t, and so we do.