A Pennsylvania appeals court is set to take up a case Wednesday stemming from a scandal in Centre County over whether prosecutors exchanged text messages with judges in open court.
The matter before a panel of Commonwealth Court judges in Philadelphia will not focus on the alleged texting that has defense attorneys raising alarms, but instead on whether prosecutors should be exempt from state public records laws — since attempts to obtain the controversial text conversations have set off a burst legal battles.
Vic Walczak, legal director of Pennsylvania’s ACLU chapter, said the case has the potential to reshape some aspects of the state’s open records landscape.
An outcome in favor of the Centre County District Attorney’s office could be “extremely dangerous and extremely troubling,” Walczak said. “You have a DA’s office trying to prevent transparency and any kind of public investigation.”
The attorney representing the district attorney’s office is Bruce L. Castor Jr., the former Montgomery County district attorney who testified earlier this month in the Bill Cosby case.
“Nobody is saying that records can’t be released. Nobody is saying they can’t be requested,” Castor said. “But the county doesn’t have the authority to exercise control over judicial records.”
So far, the courts are on Castor’s side.
Right-to-know requests involving Centre County’s district attorney’s office have been put on hold, after a trial judge in May agreed with Castor. But now, county officials’ arguments appealing that ruling will be heard.
The fight pits county judges and prosecutors, represented by Castor, against county officials and defense attorneys over what exactly constitutes a public record and who should be shielded from having to release them.
The case turns on questions over a number of polarizing legal definitions — like what is a “financial record” under public record laws, and who is technically an agent of the judiciary? — but the upshot of the case may redefine how public record requests to DA’s Offices are handled by setting a new precedent.
Defense attorneys maintain that the legal posturing is just a distraction. The behavior from the original episode, they say, reflects a type of prosecutor-judge coziness that could get in the way of meting out justice.
Right to know requests for texts
The story begins around December 2014, when defense attorneys filed right-to-know requests seeking texts between prosecutors and judges after learning through a former court reporter that Centre County District Attorney Stacy Parks-Miller and her assistant prosecutors supposedly swapped hundreds of text messages during a murder trial with the presiding judge, Bradley Lunsford.
Among the alleged back-and-forth, Parks-Miller thumbed messages to Lunsford complaining about how the judge was handling objections, according to an affidavit written by the former court reporter.
Defense attorneys also filed records requests for phone communications between prosecutors and Judge Jonathan Grime and District Judge Kelley Gillette-Walker.
(In September, Judge Lunsford announced that he would not seek re-election. His term ended in January.)
The county fulfilled the requests by providing Verizon spreadsheets to the defense attorneys detailing text receipts — when they were sent and received — but not the content. County officials redacted the numbers, but Castor contends that District Attorney Park-Miller’s number was still released, something Castor said was a privacy violation that caused Park-Miller to be harassed. The calls gave her “substantial security concerns,” he said.
The judges have sued the county over its compliance with the records requests, and their suits have been folded into the county’s case before the appeals judges.
Castor argued that the county should not have responded to the records request because the texts could have included confidential criminal investigative information. He also said that prosecutors are “judicial agents,” therefore exempt from Pennsylvania’s right to know law.
Under the law, the judiciary is largely immune from requests, but it does have to provide financial records when requested (in Section 304 of the law).
But phone logs are not “financial records,” Castor said in filings.
“It is clear that the information sought is not financial in nature, and yet the county knowingly bent over backwards to do everything possible to allow the criminal defense attorney to use innuendo to attack the integrity of members of the judiciary and the district attorney’s office,” Castor wrote.
The defense lawyers have attempted to use the text exchanges as a tool to win new trials for their clients, saying the communication shows “a grave appearance of bias.”
Attorneys for county officials, who complied with the defense lawyers’ requests, argue that the DA’s office is a county office that serves, but is not a member of, the state judiciary.
What’s more, they say, there is public interest in communication between prosecutors and judges. The phone contracts are taxpayer-funded, and financial in nature, and therefore should be a public record, the argument goes.
“The fact that the district attorney is embarrassed,” county attorneys wrote, for communicating “with members of the judiciary in this manner does not give [prosecutors] a clear right to enjoin the disclosure of financial records.”
If Castor has his way, if anyone requests a financial record from prosecutors and it’s denied, the requester can ask a court to resolve it, completely bypassing the Office of Open Records.
“This could make requests even more public,” Castor said. “If the DA’s office says no, and the appeal goes to court. Well, court is a public proceeding.”
The ACLU’s Walczak, though, has a different take.
“There’s a reason that they’ve been as aggressive as they have,” he said of the DA’s Office. “The bottom line is the DA is trying to block the release of potentially incriminating information about how the judiciary operates.”