September 10, 2013

Justices pose tough questions in Maine 911 transcripts case

Maine's highest court weighs the Press Herald appeal for transcripts in pending criminal cases.

By Scott Dolan sdolan@pressherald.com
Staff Writer

PORTLAND – The Maine Supreme Judicial Court's seven justices asked pointed questions of both sides Monday as they considered an appeal by the Portland Press Herald seeking the release of transcripts of 911 calls in pending criminal cases.

The transcripts are currently subject to what the newspaper considers blanket denials by state law enforcement officials. The appeal by MaineToday Media Inc., the parent company of the Press Herald, stems from a request filed by a reporter in January for transcripts of 911 calls in the case against James Pak, 75, who is accused of fatally shooting two teenagers in Biddeford on Dec. 29.

The Maine Attorney General's Office denied that request, and the Press Herald filed an additional request for 911 transcripts from all active homicide investigations and active homicide prosecutions. The state denied that request, as well. The Press Herald sought a decision from the state's highest court after a judge upheld the state's position when the newspaper challenged the denial at the Superior Court level.

SHARP QUESTIONING

During oral arguments Monday afternoon, one of the seven justices launched into questioning just moments after Sigmund Schutz, the attorney for the newspaper, introduced himself.

"So if people were to create their own reality TV show by releasing 911 tapes from, say, the Portland Police Department, that should be allowed?" Justice Donald Alexander asked. "This certainly is going to deter victims from calling in."

Schutz has argued that the state's Emergency Services Communications law is supposed to strike a balance between the privacy of those affected by the 911 calls and the public's need for information about the 911 calls to gauge the government's response.

"The state's position is it can take any public record off the shelf and make it confidential permanently," Schutz said.

Deputy Attorney General William Stokes asked the high court to uphold Superior Court Justice Roland Cole's decision in March regarding the Biddeford case that there is a "reasonable possibility" that public disclosure of the 911 calls would interfere with the criminal case against Pak.

BOTH SIDES CONSIDERED

Pak is accused of killing Derrick Thompson, 19, and his girlfriend, Alivia Welch, 18, and wounding Thompson's mother on Dec. 29 at the apartment Pak rented to Thompson and his mother.

The apartment was attached to Pak's home, where police went in response to an argument the three had with Pak.

Thompson made a 911 call at 6:07 p.m. Police responded and determined that the dispute was a civil matter.

The officers left the home about 6:51 p.m. Within three minutes, Thompson's mother called 911 again, saying she had been shot twice.

Pak has pleaded not guilty in York County Superior Court and the case against him remains pending.

"Are we going to try cases by dribbling them out into the press or are we going to try them in a court of law?" Stokes asked the panel of judges. He argued that release of the 911 transcripts could interfere with the impartiality of witnesses or jurors.

"Those investigations don't end on the day of arrest or indictment, they end on the day of trial," Stokes said.

Stokes said his office will allow 911 transcripts to be released after trials have concluded.

Justice Warren Silver characterized Stokes' position while questioning Schutz.

"He's not saying you can never have it. He's saying it's delayed," Silver said. "You can have it after the trial and do your story then."

Before Schutz could answer, another judge on the panel, Justice Ellen Gorham, interjected.

"Isn't that the point of FOAA (Freedom of Access Act, the state's public records law), so the public can know that the government is doing its job well?"

Speaking after the hearing, neither Schutz nor Stokes said he could tell from the justices' questions how they would rule on the appeal.

"They were carefully considering both sides' arguments and probing the issue," Schutz said.

'YOU CAN'T READ THE TEA LEAVES'

Stokes said he felt Silver got it right in his statement that "it's not a denial of the transcript, it's a delay," but he couldn't read from the judges' questions how they would vote.

"You can't read the tea leaves," Stokes said. "You can't tell whether the questions are to probe you or demonstrate how far you can go with it before you reach an absurd result."

Scott Dolan can be contacted at 791-6304 or at:

sdolan@mainetoday.com

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