Judge: Documents in corrections officer's killing should be unsealed
Washington law favors public access, Judge Thomas Wynne said, adding that in criminal cases a defendant must show he'll face prejudice from disclosure that can't be addressed short of sealing documents.
"For the most part, this standard cannot be met in this case," Wynne said.
Scherf's attorneys said they plan to appeal Wynne's ruling, so it is unclear when the records may become public.
Scherf, 52, is charged with aggravated murder and could face the death penalty for the Jan. 29 strangling death of Jayme Biendl in the chapel at the Washington State Reformatory. The serial rapist already was serving a life sentence when Biendl was killed.
Scherf's lawyers last month asked Wynne to order prosecutors to seal roughly 325 pages of police reports, transcripts and other records related to the investigation. The Herald sought the documents after Scherf was charged in March. The Seattle Times and a television station filed similar records requests.
Scherf's lawyers did not object to last week's release of about 1,600 pages of police reports about the case. Those documents described how Scherf calmly explained to corrections officers who found him alone in the chapel that he'd fallen asleep, and that Biendl must have missed him when she left for home. He also reportedly was trying to clean his fingernails minutes after her death.
Scherf attorney Karen Halverson told Wynne her client's right to a fair trial would be compromised if potential jurors learn the contents of the sealed records. The documents include Scherf's alleged confession to strangling Biendl. They also included records that for decades have been available for public inspection in courthouses where Scherf was prosecuted for earlier attacks on women, plus documents in the files of various state agencies, including the state Department of Corrections and the Indeterminate Sentencing Review Board.
Deputy prosecutor Lindsey Downs said her office was taking no position on the records requests except to urge the court to apply appropriate legal standards and case law.
In her brief, she noted that courts are sometimes asked to balance dueling obligations between public access and ensuring a fair trial.
Barring access to records is an option, but the law is clear that a court "must first find, with particularity, that it is more probable than not that unfairness or prejudice will result from the pretrial disclosure," she wrote. "Second, the court must consider alternatives to withholding access."
Among the alternatives routinely used in criminal cases is voir dire. That is the close questioning of potential jurors to screen those who may have reached conclusions based on pretrial publicity.
Lawyers in Scherf's case on Wednesday discussed with Wynne the necessity of scheduling ahead to accommodate the larger-than-typical pool of potential jurors that will be screened for Scherf's trial.
Prosecutors say they expect to be ready for trial by March or April. Scherf's attorneys said they may not be ready for trial before fall 2012.
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