Criminal file in death penalty case will stay open

Fifth Circuit Solicitor Dan Johnson can’t make secret the entire contents of the criminal file in the ongoing death penalty case of Julian Whatley, a state judge ruled this morning.

Instead, those documents that Johnson or defense lawyers think shouldn’t be aired in public will be submitted to a judge for review to see whether some or all of them should be kept secret, Judge Thomas Cooper Jr. ruled in a hearing at the Richland County courthouse.

Cooper’s ruling applies to future filings; contents of the current file will be kept open.

In making his ruling, Cooper appeared responsive to arguments by Johnson that certain documents the defense had put in the Whatley file should not have been there. In particular, Johnson said one affidavit in the public record, which had been submitted by the defense, was false and damaging to his case.

Thus, Cooper’s directive ordering disputed documents be submitted to him for review prior to filing appeared aimed as much at keeping the defense from making public improper filings as at any attempt by the prosecution to keep secret matters that should be open.

Cooper made his ruling after hearing an argument from State Media Co. attorney Jay Bender that the U.S. Constitution, the state Constitution and decisions by the S.C. Supreme Court make it clear that criminal cases should be conducted in public view.

Criminal case files are a set of records in which documents like indictments, arrest warrants, motions and replies to motions are kept before, during and after trial. Open for public inspection in the county clerk of court’s office, the availability of such files ensures that criminal cases brought by the government can’t be kept secret.

Johnson willingly accepted Cooper’s ruling, which followed a suggestion by Bender that since most pre-trial documents likely could be made public, a judge should rule on whether to make public the small number of filings that the prosecution or defense might want to keep secret.

Last week, Johnson filed a motion to keep secret the entire contents of the Whatley case, which is scheduled for trial next spring. Whatley faces two murder charges in the arson of a mother and her school-age daughter in 2007.

That motion was opposed by Public Defender Doug Strickler, who with other lawyers is representing Whatley.

Johnson made his motion after defense lawyers filed affidavits with the court saying that Whatley wanted to plead guilty in exchange for two life sentences. Defense lawyers also filed statements from a surviving victim in the case and relatives of the two people Whatley is accused of killing saying that they wanted Whatley to get a life sentence and not the death penalty.

Johnson said that is precisely the kind of information that should be kept from the public so the prosecution can get a fair trial and avoid an untainted jury.

But Bender told the judge that public trials are such a fundamental principle in American law that courts usually try other remedies — such as only sealing those portions of a file that would be prejudicial to someone’s right to a fair trial — rather than keeping an entire file secret.

The Whatley case is Johnson’s first death penalty case. He took office in January.

Read more in Tuesday’s edition of The State.