ST. LOUIS • Circuit Attorney Jennifer Joyce says she’s protecting crime victims and witnesses from potential harm by withholding their information from defense attorneys.
Her prosecutors have, for at least a decade, stripped out dates of birth, Social Security numbers, telephone numbers and addresses from police reports before providing them to defense attorneys.
But Mary Fox, head public defender in St. Louis, says that long-standing practice violates Missouri Supreme Court rules and deprives defendants of their constitutional right to a fair trial.
That legal fight, which played out Friday before St. Louis Circuit Judge Michael K. Mullen, has been brewing since last year when Fox’s office sued Joyce to stop the practice.
In Friday’s hearing, Joyce’s chief trial assistant, Beth Orwick, asked Mullen to reverse his own May 26 order that prosecutors disclose identities and last known addresses of victims and state’s witnesses in 172 cases whose defendants are represented by the St. Louis public defenders office.
A Missouri Supreme Court rule requires the disclosure. Orwick reluctantly acknowledged that Joyce’s office has willingly violated the rule for years after Mullen repeatedly challenged her interpretation.
“We believe the rule is unconstitutional,” Orwick told the judge. “What we’re trying to do is change the law. Someone needs to take the lead, your honor, and that’s what we’re doing.”
Replied Mullen: “You’re trying to keep information from the other side.”
Mullen’s blanket protective order that applies to the 172 cases in question allows prosecutors to continue removing Social Security numbers and personal identifying information of police officers. It prohibits public defenders from sharing the last known addresses and phone numbers with their clients, their friends and relatives.
The arguments aired Friday touch on similar issues outlined in a pending appeals case set for August dealing with redacted victim and witness information in 14 other criminal cases in St. Louis. That appeal was filed by Joyce against Mullen. Orwick asked Mullen on Friday to rescind his order and grant hearings in each of the 172 other cases to enable victims and witnesses to testify to whether their personal information should be removed from police reports. Orwick said Mullen’s order “does not give the people their chance to participate in the criminal justice system.”
Mullen did not issue a ruling Friday but appeared likely to side with the public defenders office’s request, saying hearings for each case would “cause a huge clog in the criminal justice system.”
Fox, the district public defender, has claimed in court filings that Joyce’s prosecutors have “systematically” withheld witness and victim information without seeking protective orders, which Fox called an “abuse of power.” Fox acknowledged that witness safety was a concern in some cases but said that “generalized, non-specific fears of retaliation are not good cause” for granting protective orders.
On Friday, Fox cited more than a dozen cases in which Joyce’s office sought to seal personal information in police reports for cases that have already been adjudicated and of witnesses who are relatives or friends of defendants. Charges in at least one of the cases had already been dropped. Fox also said that Joyce’s office had failed to cite examples of any defendants posting sensitive information online and that revising the Supreme Court rule might better be addressed in the Missouri Legislature.
“The existence of the internet coupled with a defendant charged with a criminal offense in possession of police reports does not in itself create or show good cause,” Fox said in court papers.
Joyce said in an interview this week that she wanted the courts or lawmakers to change a 1979 Missouri Supreme Court rule that requires prosecutors to give defense lawyers information and statements of witnesses to be called at trial. Joyce says the rule is obsolete because it predates the internet and social media that have made sensitive information easy to share publicly.
“There’s a lot of dangerous gun-violent criminals out there who want to kill witnesses against them, and it’s insane for us to give them a road map as how to find witnesses,” Joyce said in an interview this week. “And it’s just a very real thing that’s happening more and more these days.”
Joyce pointed to a fatal shooting April 24 of Frankie Phillips, 42, in the 4200 block of Iowa Avenue. Phillips would have testified the next day in an assault case against Frank Roberson, 47, who was charged with wounding Phillips in a shooting in September. Joyce said she didn’t know if Phillips was killed because he agreed to testify but said she thought it “fair to assume that (Phillips’) information was provided to the defense.”
Police are still investigating Phillips’ shooting death. Joyce has put out a plea for additional witnesses.
Joyce says that witnesses are routinely made available to the defense for depositions and that withholding of personal information is necessary for their protection.
But Fox argues that defense attorneys should be able to contact and interview witnesses free of interference from prosecutors.
In March, Franklin County Circuit Judge Gael Wood, a special judge appointed to hear the lawsuit against Joyce by the public defenders office, endorsed an agreement that prosecutors disclose when they remove information from the reports.
The agreement also requires defense attorneys to give Joyce at least five days’ notice before challenging redactions in court. A hearing in the case is set for June 22.