District judge blocks public access to perjury charge against attorney

Why did District Judge Ray Dean Linder seal records of a felony perjury charge filed against an Enid attorney on Thursday?
 
"Because I am the district judge. And it will remain sealed until I say it shouldn’t be sealed,” Linder told the Enid News & Eagle.
 
Welcome to Oklahoma's 4th Judicial District, Division 1, where the public's right of access to court records doesn't exist if Linder says it doesn't.
 
This isn't the first time that Linder has arbitrarily closed off the judicial system to the public.
 
In July 2010, Linder refused to explain why a guilty plea in a first-degree murder case was accepted in his chambers instead of in the Woods County courtroom packed with family and friends of the victim.
 
"Wherever I am is open court,” Linder told the Enid News & Eagle at the time. "The attorneys for both sides and the defendant all agreed to do it in chambers. It became an auxiliary courtroom."
 
To say that his chambers had become an open court was an insult to the family and friends of the victim and to the general public. If his chambers had become an open court, why didn’t he conduct the proceeding in the Alva courtroom described as standing room only?
 
Now, Linder has sealed the perjury charge filed against Enid attorney Eric Edwards in Major County.
 
"Because in my professional opinion it deserved to be sealed," Linder told the newspaper. "Because I am the district judge, and I believe all persons are presumed innocent until their guilt is proved beyond a reasonable doubt by a qualified jury or judicial process."
 
The newspaper asked Linder what made him seal this particular case as opposed to all other felony cases. "My personal opinion, my professional opinion, my 50 years of experience as an attorney," Linder replied.
 
Linder wouldn't answer whether Edwards’ status as an attorney played into his decision to seal the case.
 
"The matter is sealed so we’re not going to talk about it — that's the reason you seal the record, is to prevent the information from being dispersed," he said.
 
But the U.S. Supreme Court has said judicial documents are presumptively open to the public and may be sealed only if that right of access is outweighed by a 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))
 
A number of U.S. Circuit Courts of Appeal, including the Tenth Circuit, have used a balancing test to determine if court documents should be sealed. Because the public is entitled to see these records, the judge may block access only if "closure is essential to preserve higher values and is necessary to serve that interest." (See, e.g., United States v. McVeigh, 119 F. 3d 806, 812-13 (10th Cir. 1997))
 
However, Linder didn't cite a compelling interest that outweighs the public's right of access to court records.
 
The flimsy reason he provided would be justification for closing all judicial records and trials.
 
Access to court records assures the public that everyone is treated equally in our judicial system and that decisions aren't "based on secret bias or partiality" – as the U.S. Supreme Court said in defense of open courts.
 
"Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law," the Court said. The same can be said for court records sealed from public view.
 
Our state Supreme Court had voiced a similar philosophy: "The doors of our courts must never be closed for Star Chamber sessions. They must be open to the press and its prying eyes and purifying pen to report courtroom abuses, evil and corrupt influences which despoil and stagnate the flow of equal and exact justice." (Lyles v. State, 1958 OK CR 79, ¶ 15)
 
Linder's outrageous, arrogant stance breeds suspicion that a secret court system exists in the 4th Judicial District for those with enough good-old-boy connections to keep their names out of the public record.
 
How many other criminal charges has he hidden from the public for no other reason than he is the judge and he says so? Why are those criminal defendants getting preferential treatment? What other considerations are they offered that aren't available to the majority of defendants?
 
The 4th Judicial District's Division 1 covers Alfalfa, Dewey, Major, Woods and Woodward counties.
 
Linder, who is in his late seventies, is one of the longest-sitting trial judges in the state, having served on the bench since 1967, according to the Oklahoma Bar Association.
 
Linder's undoubtably popular in the area, having served as the radio play-by-play man for Northwestern Oklahoma State University sports for 28 years, hosted a local TV sports program from NWOSU, and as a member of NWOSU’s Sports Hall of Fame, sought-after public speaker and an admired jewelry maker.
 
He's an award-winning judge described by the OBA as a leader in northwestern Oklahoma and the state's judiciary.
 
Linder's been co-chairman for the annual Oklahoma Legislative Quail Hunt in Woods County for more than 25 years and served on the statewide planning committee for the Oklahoma Lieutenant Governor's Invitational Turkey Hunt for the past 20 years, according to the OBA in 2007.
 
He undoubtedly has political power and not surprisingly ran unopposed in the 2010 election.
 
In 2000, Linder took a hard-line approach when he disqualified the Oklahoma County District Attorney's Office from prosecuting Oklahoma City bombing conspirator Terry Nichols. Linder said published comments that then-District Attorney Bob Macy had made were "blatant open violations of the rules of professional conduct."
 
"One hundred percent compliance with the rules is not only necessary, it's demanded," Linder said.
 
The same is true for the "rules" regarding the public's right of access to court records. One-hundred percent compliance is not only necessary to ensure that justice is afforded equitably, it's demanded.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

DHS took six months to respond to Tulsa World request for records

The state Department of Human Services took half a year to provide the Tulsa World with information about lawsuit settlements related to child abuse and neglect, the newspaper noted today.

The newspaper made three requests March 8, each related to records of legal costs and lawsuit settlements.

DHS did not provide information on two requests until the newspaper told officials it was preparing to publish a story about the department's failure to comply with the records request.

The records revealed that DHS has settled 24 lawsuits related to child abuse and neglect since 2005 for more than $3.4 million - $1.4 million from the agency and $2 million from insurance, the Tulsa World reported Sunday.

The amount paid in a 2010 case is being kept secret from the public because the settlement was sealed by a district judge.

DHS officials told the Tulsa World that the records request took six months to answer because legal staff had to search past files in storage to cull the information requested and because cases are not separated by category such as child welfare.

DHS officials apparently didn't already know how much the department has spent on outside legal counsel and has paid to settle child abuse-related lawsuits since 2005.

Meaning the department apparently has no tracking system for legal settlements and attorney costs.

That raises doubts about how efficiently and how effectively DHS officials are handling the public's money.

Moreover, this kind of scattered record-keeping is a breeding ground for incompetence and corruption.

Also questionable is whether DHS officials complied with the state Open Records Act by taking six months to respond to the records request.

Under the Open Records Act, "A public body must provide prompt, reasonable access to its records...." (OKLA. STAT. tit. 51, § 24A.5(5))

A 1999 attorney general opinion stated succinctly that "prompt, reasonable access" generally means "only the time required to locate and compile" the public records. (1999 OK AG 58, ¶ 15)

DHS officials told the Tulsa World that much of the legal staff's resources and time were being used to defend the class-action lawsuit. So why were records made available only after the newspaper threatened to publicize how long DHS was taking to provide the information?

Oklahoma public agencies and officials have a "duty" to provide public records to the public. Then-Attorney General Drew Edmondson said:

The purpose of the Act is 'to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.' To fulfill this purpose the Act imposes a duty on a public body to 'provide prompt, reasonable access to its records' and make a person available to release records during the public body's regular business hours. (2005 OK AG 3, ¶ 4)

That purpose is defeated if government officials can deny access by delaying access.


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



The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

State Senate's new rules give public, senators one legislative day to review bills before vote

Legislative rules adopted this week by the state Senate require that bills be available to the senators and public on the legislative day prior to the vote, a Tulsa World editorial explained today.

Meanwhile, a House panel is considering a rule requiring House conference committee reports to be filed and posted online for a full 24 hours even during the final two days of the session before they could be considered on the House floor. (House rules are adopted on the first day of the session, which is Feb. 7.)

As the Tulsa World editorial writers observed this morning, "One day isn't much notice."

But the Senate's rule, first reported by Capitol News Now, is treated as good news because it should put an end to senators considering bills or joint resolutions in the waning hours of the legislative session.

The Tulsa World praised the notion of providing public access to legislation prior to votes. "It introduces democracy to the public's business," the newspaper said.

It called the Senate's new rule "a good start."

But the next step should be requiring both the House and Senate to comply with our state's Open Records and Open Meeting laws -- as state Rep. Jason Murphey, R-Guthrie, is proposing.

As the Tulsa World noted, "Senators [and representatives] have nothing to fear from letting the public know what they are doing, unless they're doing something they don't want the public to know about."


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