Pending case could open juvenile, family court proceedings in Kentucky


© 2006 Student Press Law Center

January 26, 2006

KENTUCKY — Journalists in Kentucky are “cautiously optimistic” about a case pending before a federal appeals court that could open juvenile and family court proceedings to the public.

After more than 100 years of tightly closed court dockets, “any step forward would be a giant step forward,” said John Nelson, former president of the Kentucky Press Association, the organization that is challenging the constitutionality of closed court proceedings and records.

The press association initially filed suit in 2004 against the state of Kentucky in a federal district court in Frankfort, but the court dismissed the suit, claiming that the “press had no First Amendment right of access to juvenile court proceedings and documents.”

Attorneys for the press association then filed an appeal with the 6th U.S. Circuit Court of Appeals in July, and in late November the court heard oral arguments from both sides of the case.

There was some discussion during the oral arguments that the press association should have pursued their case in a state court, or sought access to individual juvenile cases instead of filing suit “across the board,” said Jon Fleischaker, lead council for the press association.

But Fleischaker made the case that journalists and attorneys were unable to challenge the closure on a case-by-case basis because closed proceedings make it difficult to single out even basic information about a juvenile case.

“There’s not even a docket to show which cases exits,” Fleischaker said.

There is also the possibility that the appeals court could order the state to open just family court proceedings, as family courts hear charges against adults, he said.

Dealing with ‘total secrecy’

Nelson, the former press association president and managing editor of The Advocate-Messenger in Danville, said he would be pleased if the court ruled to open family court proceedings.

“Any step toward an increased level of transparency in either of those courts would be a giant step forward,” he said. “We have total secrecy in Kentucky. We can’t even look at the dockets in those courts.”

Closed court proceedings have made it difficult to accurately report on crimes that involve juveniles, Nelson said. In Danville, juveniles are frequently charged with crimes — sometimes violent crimes — and reporters have to rely on anonymous tips and bits of information to find out basic information, he said.

Nelson cited a recent example where a 17-year-old was charged with the murder of an elderly woman. With no records released, reporters scrambled to find out official confirmation of the juvenile’s name, the details of the crime or if he would have a hearing.

“It requires us to be not only diligent in our reporting, but it requires us to go to extreme measures to make sure when we name someone or when we do give information about what occurred in proceedings that we rely on sources that aren’t necessarily speaking officially,” he said.

There has also been recent attention to judges who require people involved in a case to sign documents prohibiting them from speaking to anyone about the case — including the press. In mid-January, a district court judge in Kentucky dismissed contempt charges that were initially filed against a woman who spoke with the media about the murder trial of her 15-year-old grandson.

Nelson said a woman recently came to his office with a videotape of court proceedings where her children were taken from her custody. She wanted to speak with him about her experience, but had signed a document swearing that she would not show the videotape to anyone.

“When you have people charged or guardians of people charged who cannot discuss what the system is putting them through with anyone other than the system, then we have a problem,” Nelson said.

Media, public out of the loop

There is also a concern that when the media is barred from information on court proceedings, the public is likewise left in the dark.

“Right now I don’t think it’s appropriate to leave [court proceedings] just in the hands of judges and lawyers and police officials,” said Chris Poore, media adviser for The Kentucky Kernel, the student newspaper at the University of Kentucky in Lexington. “There are checks and balances, and that includes the media.”

Poore, who reported for newspapers in Kentucky and Georgia, said he has discussed the press association lawsuit with Kernel staff writers and students. Many of his students will go right into reporting jobs, he said, and those first positions often involve covering courts and cops.

“I can’t think of too many weeks going by that those beats don’t involve juveniles,” Poore said.

Poore himself covered a 1993 incident in Grayhurst, Ky., where a 17-year-old student shot and killed a teacher and a janitor and held a class hostage. Police did not release the student’s name. Parents and students in the community, unable to find out where and what had happened, were panicking, Poore said.

“They’re trying to protect the accused and the victims,” he said. “But not releasing those records creates more victims.”

The consequences of access

In mid-December, The Courier-Journal, a daily newspaper in Louisville, conducted an investigation into growing concerns about the state’s closed court proceedings. Reporter Andrew Wolfson outlined the press association’s lawsuit, and also spoke with advocates for continued confidentiality within the juvenile court system.

“Kentucky shrouds its juvenile courts behind some of the strictest secrecy laws in the nation, requiring the public to accept on faith that it is being protected from dangerous children — and that innocent children are being protected from dangerous adults,” wrote Wolfson in the Courier article.

Poore acknowledged the concern that juvenile offenders might be harmed by open records and media exposure, and described issues of court access and media disclosure as a “delicate balance.”

A brief filed by representatives of the state of Kentucky said that an important justification for closed court proceedings is to protect juveniles from the threat of overexposure and help their rehabilitation.

“From its inception, a key component of this unique system of reforming juveniles offenders has been to avoid stigmatizing the youthful offender,” the brief said. For this reason, “secrecy has been deemed essential to the rehabilitative process.”

Avoiding a damaging stigma is also the concern of Rebecca DiLoreto, a juvenile specialist and post-trial division director in the state Department of Public Advocacy.

“What are we going to do – put a scarlet letter on kids?” DiLoreto asked in an article by the The Courier-Journal. “If every decision is available for the public to look at, the child will have no chance to prevail.”

But Poore maintained that there is no way to know the state of juvenile and family court systems until those records are “more open to public scrutiny.”

Poore also dismissed another public concern: that if court proceedings and records were opened to journalists, newspapers would publish every scrap of information.

“People would be surprised at how much they don’t print,” he said. “People have this fear that newspapers want to get information and throw it in. But they just want to be able to look at the information.”

Waiting on a ruling

Fleischaker, the attorney for the press association, said he expects a ruling on the appeals case sometime this spring.

In the meantime, some legislation may enter the Kentucky General Assembly in the 2006 session that would provide access to prosecution proceedings for juveniles accused of felony crimes. Republican Lt. Gov. Steve Pence has voiced support for such an initiative.

“This whole process has generated a lot of public discussion,” said Fleischaker. “And that’s been healthy.”

—by Allison Retka, SPLC staff writer

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