Supreme Court case: $2 million in public funds for ... what?

YAKIMA, Wash. -- The question before the Washington State Supreme Court seems straightforward: Does the public have a right to scrutinize how its money is being spent to defend accused killers and other criminal defendants?

That's the crux of a lawsuit by the Yakima Herald-Republic against Yakima County, which refused to turn over financial records showing how court-appointed defense attorneys racked up more than $2 million in fees and other costs in a 2005 double-murder case.

On Tuesday, the Supreme Court will hear oral arguments in the dispute, the latest in a series of legal battles around the state over the degree to which court records are subject to the state's Public Records Act.

Lawyers for the county say their decision not to turn over the records doesn't reflect any deep-seated opposition to making them public, but rather that their hands are tied by a court order that's sealed everything from prying eyes.

"The county has never taken a position as to whether the records should be disclosed or not," said Stefanie Weigand, a senior deputy prosecutor. "The county simply didn't want to run afoul of a court order."

But the Herald-Republic is challenging the county's assumption that billing records, such as receipts, invoices and other financial documents generated by defense attorneys in the 2005 double-murder case, were automatically covered by the sealing order.

The records in question are administrative in nature and were never even in a court file, at least not in the conventional sense, said Michelle Earl-Hubbard, a Seattle media attorney who will argue the case for the Herald-Republic.

"This case is about getting the lawyers paid, not court records," she said, adding, "I don't know how you seal something that isn't in the file."

Herald-Republic Publisher Michael Shepard said he remains "confounded and frustrated" at how the case could take so long to resolve when an appeals court ruled in a 2008 Thurston County civil case that taxpayer-funded attorney fees are subject to public disclosure.

In fact, the state Legislature had amended the Public Records Act a year earlier along those very lines. The appeals court applied the change to the Thurston County case retroactively.

"We just want to know how the money was spent," said Shepard. "The people of this state have long demanded accountability. Having access to how this money was spent seems an entirely reasonable request."

Attorneys for Jose Luis Sanchez Jr., one of the defendants in the 2005 murder case, won permission to participate in the arguments before the Supreme Court but declined to comment for this story. They noted that the Herald-Republic is not just covering the case but is an actual party to the lawsuit.

However, in written briefs to the court they argue that disclosing the financial records violates the constitutional rights of defendants to a fair trial.

Noting that Sanchez is appealing his murder conviction and life sentence, they accuse the newspaper of using the case as a "vehicle to pursue a much broader ... agenda to expand the reach of the [Public Records Act]."

Brutal slayings in '05

The Herald-Republic's effort to define the limits of court-
protected secrecy has its roots in a brutal attack on a young Yakima family five years ago.

On the night of Feb. 20, 2005, two armed intruders in search of drugs and cash barged into the South 18th Avenue apartment of Ricky Causor and Michelle Kublic, forcing the young couple and their two small children to their knees.

Without provocation, one of the intruders started shooting. By the time the gunfire stopped, Causor, 21, and his 3-year-old daughter Mya were dead. Kublic, also 21, was badly wounded but survived despite being shot at least four times with a .45 while shielding her 2-year-old daughter Angelica from harm.

Within days of the attack, police arrested Sanchez and identified Mario Gil Mendez as the other intruder. They described the pair as members of an upstart street gang responsible for a spate of violent robberies and drug rip-offs in the weeks before the attack on 18th Avenue.

Due to the possibility that prosecutors might seek the death penalty, it took nearly three years before Sanchez, the accused gunman, went on trial. By that time, co-defendant Mendez had been captured and was ready to turn state's evidence.

After a 31/2-week trial in December 2007, a Yakima County jury found Sanchez guilty of aggravated first-degree murder. By then prosecutors had ruled out the death penalty, meaning Sanchez received an automatic life sentence without parole. For his cooperation, Mendez was allowed to plead guilty to a lesser charge of first-degree murder and was sentenced to 30 years.

Throughout the run-up to trial, the Herald-Republic reported the unprecedented escalation in defense costs. By the time Sanchez and Mendez were sent to prison, the case had cost taxpayers more than $2 million in attorney fees and other costs.

Given the cost of the case to the county's budget and its implications for future death-penalty cases, the newspaper moved to examine the billings and other costs generated by the court-appointed attorneys once the Sanchez trial was over.

No one disputes the initial sealing order signed early in the case by Superior Court Judge James Lust was justified. Knowing how defense attorneys were spending money could have given prosecutors an unfair look at their legal strategy and harmed the defendants' right to a fair trial.

But county officials and the defense attorneys insisted the sealing order remain in effect even after the trial ended.

Rather than appeal the sealing order, the Herald-Republic instead sued the county on the grounds that the billing records were covered by the state Public Records Act and never properly part of the court file to begin with.

A Superior Court judge, however, ruled against the newspaper. Rather than endure a protracted and expensive series of court appeals, the parties successfully petitioned the Washington State Supreme Court for a direct review.

In a related lawsuit now before the Washington Court of Appeals in Spokane, the
Herald-Republic is asking to have financial records in the Mendez case unsealed.

The two cases took divergent paths because Sanchez is appealing his conviction while Mendez pleaded guilty and has no appeal rights. Even so, the newspaper is making a similar argument that financial records are not judicial records, and therefore subject to the Public Records Act.

Like the attorneys for Sanchez, Mendez's attorneys are seeking to block the newspaper's inquiry on the grounds that unsealing his records would set a bad precedent that could jeopardize the rights of defendants in criminal cases to a fair trial.

A date for arguments in that case has not been set yet.

The 'budget judge'

In a case that disappointed open-government advocates last year, the Supreme Court reaffirmed a ruling in effect since 1986 that exempts the judiciary from the Public Records Act.

Despite the setback, lawyers for the Herald-Republic argue that the open-records law still applies in the Sanchez case due in part to the unusual participation of Judge Lust, who issued the sealing order.

He was not the trial judge, but was appointed to oversee spending requests from defense attorneys. His oversight was intended as a hedge against a reversal on appeal. About half the state's death penalty cases have been overturned in the past 20 years, and Lust's appointment as "budget judge" was intended to assure that defense attorneys didn't overspend, but also got enough money to ensure that they couldn't appeal saying they'd been underfunded.

A different judge handled Sanchez's trial.

Attorneys for the newspaper argue the arrangement was a peculiar one that blurred the judiciary's role. If the Supreme Court sanctions the practice, they warn, others are sure to follow.

"When you start setting judges up as claims administrators, there's this confusing overlap," Earl-Hubbard said. "It's a bad trend for the public, it's a bad trend for the judicial system, and if the (Supreme Court) allows it, you're going to see more and more problems."

Rowland Thompson, executive director of Allied Daily Newspapers of Washington, believes the judges may not want to repeat the arrangement for fear of a voter backlash over the mushrooming expense of defense costs, particularly in potential capital punishment cases.

"He's an elected judge and voters could kick (him out) when he runs the next time," Thompson said, referring to Lust. "I don't think he really thought it through. Not his job, not his problem."

In terms of public policy, open-records advocates compare the potential effects of the "budget judge" arrangement to that of a controversial Supreme Court decision in 2004 that vastly expanded attorney-client privilege.

In addition to taxpayer accountability, permanently sealing the murder case records leaves other questions unresolved.

Sanchez's first defense team, Seattle lawyers Steve Witchley and Jackie Walsh, was accused of unethical conduct in the case and removed by the trial judge.

In a scathing report, state Assistant Attorney General John Hillman accused Witchley and Walsh of wasting a million dollars of public money because a new defense team for Sanchez had to be hired and had to start over.

But Hillman said a full in-
vestigation would be impossible as long as the court records remain sealed.

Toby Nixon, a former legislator from Kirkland, Wash., and president of the Washington Coalition for Open Government, said lawmakers have never been comfortable with courts being exempt from the Public Records Act and are not afraid to step in if the Supreme Court doesn't do more to curb secrecy.

A task force led by Washington Court of Appeals Judge Marlin J. Appelwick of Seattle convened in December with the goal of coming up with a compromise. Nixon is a member.

"They clearly know there's an issue," he said of the judiciary, adding, "I think they would prefer to keep this within the realm of court rules, but they also know we shouldn't be spending millions and millions of taxpayers' dollars without accountability. That's just ridiculous."

* Chris Bristol can be reached at 509-577-7748 or cbristol@yakimaherald.com.