D.C. Transparency Watch: Coalition Challeges OAG Denial Of Access to Police Video Used In Trials

Superior Court defense attorneys say drunk-driving cases are harder these days. Instant replay on video brought to court from the new MPD body-worn cameras is replacing aggressive cross-examination of officers' reports of ambiguous results of sobriety tests.

Yet after prosecutors show the video to the judge and anyone watching in the courtroom, it goes under lock and key moments after trial.

Fox5 reporter Paul Wagner asked to see the video trial exhibits in five cases but was rebuffed by officials at Superior Court, the mayor, D.C. Council members, and the Office of the Attorney General that handles the DUI prosecutions. The Attorney General personally defended the denials on camera last September, citing privacy limits he thought had been enacted by the D.C. Council.

Actually, officials were ignoring well-established public rights of access to trials and exhibits, mistakenly referring him to the Metropolitan Police Department. Rules effective in 2016 direct MPD to process all public requests for police video under the D.C. Freedom of Information Act, but those rules don't govern access to court proceedings and related records.

Wagner got back from MPD not the trial video, but footage edited to mask police and civilians and making it impossible to link to the court case. 

Recognizing the legal mistakes Wagner encountered, the D.C. Open Government Coalition is taking action.  Extensive precedents assure the public right, based on the First Amendment and the common law and with exceptions only under the most serious of special conditions, to see trials in open court and the evidence presented to the judge or jury.  Reviewing that body of law, attorney Robert Becker of the D.C. Open Government Coalition in a March 2 letter asked Attorney General Karl Racine to reverse the present policy of his office and allow the public to see what the court sees.  (Just as does the Office of the U.S. Attorney here, that reporters say regularly allows public access to exhibits after trial including video.)

The Office of the Attorney General has not responded. The Coalition letter warned of legal action to come: “if we cannot convince you to alter the policy we are prepared to intervene in an appropriate case to assert the public’s right of access.” In other words, the Coalition won't hesitate to go back to court to ask trial judges to order the OAG to turn over video wrongly withheld.

The Coalition letter is attached below.