Thursday, October 7, 2010

Oklahoma County judge seals transcript of her courtroom argument with prosecutors

Oklahoma County District Judge Tammy Bass-LeSure sealed the transcript of an open court hearing in September in which she had a heated argument with prosecutors, FOX 25 in Oklahoma City reported Wednesday.

Bass-LeSure yelled at prosecutors after they asked her to step down from a criminal trial in which the defense attorney was one of three attorneys the judge had recommended to a criminal defendant with a pending case assigned to her, the television station reported.

The district attorney’s complaint about that recommendation led to Bass-LeSure recusing herself in late August from the murder trial of an Oklahoma City pharmacist because one of his defense attorneys also was among those three.

In mid-September, Bass-LeSure announced she would no longer hear criminal cases as of Jan. 1.

Bass-LeSure was presiding over a criminal hearing on Sept. 8 when prosecutors asked that she remove herself from that case as well, FOX 25 reported.

After a heated exchange with the prosecutors, Bass-LeSure ordered the transcript of the hearing sealed, the station reported.

On Sept. 20, a court order was issued releasing the transcript “to the State of Oklahoma.” The order was signed by Oklahoma County District Judge Lisa Davis on behalf of Judge Ray C. Elliott, according to the court document.

FOX 25 was not able to obtain a copy of the transcript Wednesday.

Bass-LeSure’s order sealing the transcript – and a court order releasing it to only the district attorney's office – would seem unlikely to survive a legal challenge.

Federal courts have said judicial documents are presumptively open to the public and may be sealed only if that right to access is outweighed by the compelling need to protect higher interests. (See, e.g., Nixon v. Warner Communications. Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978))

As open government attorney Bob Nelon told FOX 25:
The reason for excluding public access to the transcript of what happened in open court is so rare as to almost be unjustifiable. It is essential that the public be able to watch the justice system under way.
Perhaps someone at the Oklahoma County Courthouse or at the district attorney's office will agree and avoid the need for litigation at taxpayer expense.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

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