Roughly 1,200 sealed Snohomish County Superior Court cases are being scrutinized to determine whether their contents should remain mysteries.
Most are domestic violence cases, but others involve secret wiretaps, search warrants and closed-door inquiry hearings where people can be compelled to present evidence or risk jail time.
Judge Thomas Wynne, the Superior Court’s presiding judge, last week said he’s concerned that many court records in Snohomish County are not in compliance with new statewide court rules that provide greater public access.
“There seems to be enough files sealed in an overly broad manner that it justifies the court to expend the effort to review these,” Wynne said. “We’re going to try to go back to 2000. We’re looking at a multiyear project. We’ll deal with it the best we can, and it will just take some time to do it.”
The new rules went into effect July 1 and seek to balance privacy and public safety interests with public access to information.
The state Supreme Court adopted the rules early this year after a Seattle newspaper raised questions about the number of cases being kept under court seal statewide.
Court commissioners, who handle the bulk of the family law and domestic violence cases, are reviewing about 40 cases a month, Wynne said. Also under review are a handful of cases where the court has appointed guardians to manage the affairs of adults deemed incompetent.
Reviews not simple
The reviews of sealed cases are not simple. The parties must be notified that the court intends to review the files and possibly make the contents public. Participants are given the opportunity to be heard in front of a judge, Wynne said.
Failure to meet notification requirements last week delayed until Oct. 24 court action on a sealed divorce file involving Ron Dotzauer, a friend and adviser of U.S. Sen. Maria Cantwell.
The file, which fills 14 volumes containing more than 3,500 pages, was briefly unsealed Sept. 28 by a judge pro tempore at the request of a Seattle blogger. The records it contains have been under seal since 1994.
Meanwhile, Wynne said he’s asked police and prosecutors to review their use of sealed case files, with an eye toward making records available for public inspection that now may be improperly kept secret.
“I think they need to talk first among themselves and get back to the court,” he said.
Criminal investigations
The legal issues involving criminal investigations and sealed records are complex.
The number of secret proceedings in criminal cases also is surprising to some.
Since January 2005, there have been 27 instances of police gaining a Snohomish County Superior Court judge’s permission to secretly record or otherwise electronically monitor someone as part of a criminal investigation, according to the Snohomish County Clerk’s Office.
In each of those cases, court orders make secret what police hoped to learn, as well as the legal reasons for the judges’ approval.
There are legitimate reasons to seal records in criminal investigations, including protecting the details of an active investigation or ensuring the safety of witnesses and suspects, Wynne said.
“There may be a good reason to seal them in the first place, but not to keep them sealed,” Wynne said. “So we’ll have to take a look at that.”
Warrants requested for wiretaps, searches or similar police activities are presumably public record, said Joan Cavagnaro, the county’s chief criminal deputy prosecutor.
“However, the court has common law authority to seal the search warrants” during the course of law enforcement investigation or for privacy or safety reasons, she said.
“My reasons are generally to protect the integrity of an investigation,” said John Adcock, a senior deputy prosecutor who leads prosecutors who handle violent crime cases. “Once the investigation is accomplished, the public should see that information. It is not the intent to thwart the public’s right to know. It is to preserve the integrity of the investigation.”
Dozens of secret files
Dozens of criminal investigation files are now becoming sealed and secret each year because they are generated during “special inquiry” hearings, a legal proceeding that the law specifies can remain outside public view.
Since the start of 2005, there have been 53 special inquiry hearings before Snohomish County judges, clerk’s office records show.
Special inquiry hearings are similar to those conducted before a grand jury. People who are subpoenaed testify in private, are forbidden to reveal the nature of their testimony, and can be jailed for contempt if they do not appear for questioning and comply with the judge’s wishes.
Records from special inquiries cannot be shared without a court order, Cavagnaro said.
The frequency of the secret proceedings surprised Pete Mazzone, an Everett defense attorney.
“I cannot believe the number is that high, just for Snohomish County,” he said.
He’s concerned that police and prosecutors may be using special inquiry hearings to sidestep the development of probable cause, or to avoid the embarrassment of launching a search and then having their suspicions prove unfounded.
“There are some benefits to sealing things,” Mazzone said. “However, when they are going to seal things like wiretaps and applications for warrants, then you’ve got a problem because you are essentially doing things in secret. When you are doing things in secret, that is the antithesis of the way the criminal justice system is supposed to work.”
Lots of work ahead
Even determining the nature of sealed files in active criminal investigations is a challenge.
The county clerk’s office currently mixes a variety of criminal investigation records in the same three-ring binder.
Search warrants not filed under seal are available for public inspection. Sealed records are marked only by single-page entries in the notebook. Each document lists a case tracking number and a notice that the records connected to that number are in a sealed file. There is no clue about the nature of the sealed record or the reason it is under wraps.
That system might be misleading, said Mark Allen, who manages cases in the clerk’s office. He said his office will change its procedures so warrants and inquiry proceedings can be more easily identified.
Wynne said court rules also require written findings approved by a judge supporting the order to seal a file. The rules specify that the order to seal, and the findings, be open to the public. The challenge is preparing those documents in such a way that active investigations are not compromised, he said.
Bringing the courts into compliance with access rules will require work, Wynne said.
“We need to clean up some of that,” he said.
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