Tainted Justice: Public Denied Records for Over Two Years Under False Pretenses

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At about 26:50 into the recent video made o the July 22, 2013 Ludington City Council meeting, the City Manager brought up the latest FOIA request denied to the citizens by him without stating a reason other than he did so on the advice of Prosecutor Paul Spaniola.  He elaborated on this narrative, where the council methodically and without discussion, allowed the denial to stand without any law other than the opinion of Prosecutor Paul Spaniola referred to. 

This request deals with an Ariel Courtland interrogation video.  She was the mother of the missing Baby Kate, and originally a suspect in the disappearance, but was cleared of any wrongdoing because of some as yet undisclosed rationale by the investigating officers. 

 

John Shay:  "The City received the 196th FOIA request from Tom Rotta dated June 26, 2013 and he requested the following video file ""The complete, unedited interview conducted with Ariel Courtland on 6-29-2011 (perhaps into 6-30-2011) by Det. Tom Posma (or others affiliated with the investigation), concerning the disappearance of Baby Kate." 

Before the City responded to this FOIA request by sending it to the Mason County Prosecutor.  The prosecutor indicated that the request to release this video file should be denied because it could potentially taint the jury pool in the event of a retrial or a new trial on different charges.  So the FOIA Coordinator sent a response dated July 15 denying the request.  Mr. Rotta indicated he wanted to appeal that request, appeal that denial to the City Council."

 

Mayor John Henderson:  "What's the council's wishes here?"

 

City Councilor Kaye Holman:  "Your Honor, I make a motion to affirm the FOIA Coordinator's response dated July 15, 2013 to Mr. Rotta's FOIA request dated June 26, 2013."

 

Mayor Henderson:  "Motion by Councilor Holman... is there a second?"

 

Mayor Candidate Wally Taranko:  "Support."

 

City Attorney Richard Wilson:  "I wanted to add to the City Manager's remarks that this tape that has been FOIAed, was not played at any trial.  And so unlike some of the other recordings that Mr. Rotta has FOIAed and which we have supplied to him, this one was not-- at least I was not at the trial-- but I was told by Paul Spaniola that no portion of this tape was played at trial.  And so it has not been previously publicly disclosed."

 

 

And so the door was shut unanimously by the Ludington City Council because release of these tapes had the prosecutor, a lawyer who tries crimes not FOIA requests, say that they would "taint the jury pool" if a new trial were ever resumed against Sean Phillips (note the only two versions used were for a retrial or a trial on new charges).   The City's attorney then tries to support the validity by saying that no part of this tape has ever been publicly disclosed before, as if that makes a difference.

Jacob Lokers, Jury Foreman of the Sean Phillips Trial on Baby Kate's disappearance: Tainted by not enough information? 

Is "possibly taint the jury pool" a legitimate means of blocking the public's access to records?  First, you can judge for yourself by reading the whole list of FOIA exemptions, a list which is to be interpreted narrowly if we believe our legislators and judges:  FOIA Sec. 13 Exemptions.  Go to the main FOIA law itself and do a search for "taint", "jury", or "pool".  There is no mention of either, nor is there a mention of "possibly" in that law.  It just isn't part of the narrative, and if you've been following this case, releases by the prosecutor and investigative agencies have been one-sided and would taint the jury pool a lot more than an unedited interview with one of the suspects would.

 

Sheriff Kim Cole, also quick to quote the prosecutor, used similar logic in denying the public the right to view information about Todd Lane Johnson, an innocent local businessman and former girl's soccer coach who was taken to trial on specious charges that were later dismissed when the young woman involved recanted her tale.  But tainting the jury pool isn't recognized as a way to deny records to the public that can, and should, be released on demand.  Any public official who tries to shirk their duties to release records to the public are violating their oath of office ad breaking the law.

In this 2010 article in the Detroit News, the Detroit FOIA Coordinator withheld 911 tapes from the public citing "tainting the jury pool" among other reasons loosely based on real exemptions for denying the request.  The News' attorney said: 

"Under an established Michigan Supreme Court case, the city is required to provide specific, detailed, factual reasons, a bill of particulars if you will, to support their reasons for refusing to provide these public records. Their answer is insufficient. They have provided nothing. And they have made no effort to separate public from non-public information as required by the Michigan Supreme Court."

 

Back in 2010, a federal judge gave the public immediate access to a previously sealed document in the case against former Governor Rod Blagojevich.  Attorneys for Blagojevich argued that releasing the document would taint the jury pool for Blagojevich's  trial. Judge Zagel disagreed, stating that the public would not remember articles or broadcasts "in significant detail." 

The problem is: it is not the release of the Ariel Courtland interrogation that may taint any possible jury pool that could convene for any future trial of Sean Phillips, it is that the withholding of this information from the public at large that will taint the justice process. 

I had a defense for my appeal prepared on the assumption that the City of Ludington would give me the leave to argue my appeal, but that would be too much like a fair tribunal, which is frowned upon here in Mason County, proud home of tyranny and injustice by our officials.  I used to be able to argue my case for up to five minutes, but apparently I was making too many references to the actual law for their comfort.   Here's what it was, for what it's worth:

 

                                              The Lady of Justice whom we all should follow

"Previously, I have received the interview that Sean Phillips had with Tom Posma, and I appreciate the effort FOIA Coordinator Shay had put in to that task, as it had to be put on a DVD.  On the date of 6-29-2011, Ariel Courtland was a suspect in the disappearance of Katherine Phillips and was interviewed just like Sean.  For some as of yet undisclosed line of reasoning, her involvement in any way regarding the disappearance of Baby Kate was discounted by the Ludington Police Department and other investigators entirely.  

Many theorize that this was because the prosecution's case would be weak against either of the two parents unless they had one witness clearly against the other.  This would explain the prosecution's avoidance of lying under oath or perjury charges against Ms. Courtland and the lack of any attempt to show any evidence that may cut deeply into her credibility or the possibility she may be involved in the disappearance in any way.  

The release of this information would help the public understand why the police and the prosecutor made this decision, and whereas I was never told why or how the disclosure of this interrogation WOULD interfere with the police investigation, I have found out by reading the Saturday paper that Prosecutor Spaniola, who doesn't even work for the City, said that the "release could taint a potential jury pool in the event of another trial" 

Prosecutor Spaniola wasn't too worried when he showed the full interrogation of Sean Phillips at his trial, even the sizable part of the interrogation that took place before Sean's Miranda Warnings were given.  That should have been inadmissible, and did taint the sitting jury into reaching a guilty verdict.  

But tainting a potential jury pool is not a recognized exemption for the FOIA, so not only have I not been told throughout this FOIA request how or why the public seeing Ariel's interrogation WOULD affect the police investigation, but the City is using someone else's mouthpiece to supply an invalid reason for restricting the public's access to these records, which should be publicly available. 

 

Actions like these by the prosecutor, the Ludington Police Department and the City keep alive and propagate the doubts of competency in the investigation and prosecution shared by thousands who are still following this case, and the doubts of Ariel's innocence shared by the vast majority of those folks.  They rightly ask, why can't we see these records, and see them now?"

The Lady of Injustice, Ludington City Councilor Kaye Holman,who denies the public information, whose words are hollow