Don Lehman covers crime and Warren County government for The Post-Star. His work can be found on Twitter @PS_CrimeCourts and on poststar.com/app/blogs.

If you follow our crime coverage, you may have noticed that there has been an increasing issue with access to court records in some courts, with Warren County Court shaping up to be the most problematic.

The issue is that some in the court system clearly don't like to let the media to have access to the videos of defendants being questioned, even when these videos are evidence filed in court and by law are public information. The apparent concerns started years ago, after the 2013 Christmas Eve homicide in Lake Luzerne, when we got access to the video of defendant Clifford Burns being questioned and posted it online.

Well some higher ups in the state Office of Court Administration, apparently not aware that most court records are open to the public, were upset by this, and expressed concern about the possible effect this practice would have on a defendant's right to a fair trial.

To be clear, we have had access to a defendant's written statements when they are arraigned on a felony for as long as I have been doing this job, going back decades. Prosecutors must turn any statements of the defendant over to the defense at arraignment on an indictment, and copies have always been filed in court.

But now that those statements are on video, judges have inexplicably been sealing these discs at arraignment, despite our objections. 

Well a funny thing happened a couple of months ago.

At our request, Washington County Judge Kelly McKeighan reviewed the law when video statements in the summer's Fort Ann double murder case were sealed at the request of the Washington County District Attorney's Office. And McKeighan found there should be a process to seal the material, and a standard to be met. He ruled the standard for potential impact on a fair trial hadn't been met, so the videos in two murder cases were ordered unsealed.

That brings us to Warren County Court, and a request made to Judge John Hall.

On Oct. 3, I emailed Hall's court attorney, Robert Smith, asking him to take a look at the decision McKeighan wrote, to see if it pertained to records in the Glens Falls double murder case of Bryan Redden. Hall sealed the video disc or discs filed at Redden's arraignment in August, but no analysis was done to determine whether the sealing was warranted.

After nine days, I sent a followup email to ask where my request stood, and surprisingly I was told that the file wasn't sealed.

Despite the judge's Aug. 16 direction that the video disc be sealed, which multiple media members were present for, the disc is not in the court file. I'm not sure why a judge would order something sealed if it wasn't actually filed, but I guess that's why I'm not a lawyer.

So I asked to review a copy of the judge's file, since this disc was filed with the court in open court and should be public information like any other defendant statement.

The only contact I have had since then was responses to Smith to my questions, asking when (if?) I will finally get an answer to my query. For over a month, at each reminder, I have been told Hall is "working on a response" or something similar.

(To be clear, the issue in Warren County isn't the court clerk's office. The staff there has always been helpful and cordial. But when evidence that was filed is sealed, or just disappears from the file, there is little they can do.)

I'm told that this debate has made its way fairly high up in the OCA administration, and that there is an effort to instruct judges how to keep these video discs from the media. Basically, courts are being told to have prosecutors avoid filing the information in court, and to just turn it over to the defense, which is the bare minimum the statute requires.

Why OCA cares to micromanage what we see is beyond me.

If you can pick a jury in the highly publicized Alexander West case in a day, as happened earlier this year, it seems you don't have to worry about tainted juries.

There are an increasing number of ignorant, apathetic people in our society who pay no attention to current events, so a huge part of the jury pool just can't be "tainted," as the West case clearly showed.

A concerted effort to keep public information from the public is something we should all be concerned about.

— Don Lehman

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