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A criminal case is now proceeding against the five men charged in an alleged plot to kidnap Michigan Gov. Gretchen Whitmer, with a trial scheduled for August. But there still is no ruling on whether discovery evidence against the defendants will be accessible to the public.
As it stands, a motion by the state to seal these records is under consideration by 13th Circuit Court Judge Charles Hamlyn. A hearing on this matter is set for March 17.
We find it rather odd, alarming even, that evidence, some of which has already been presented on screen in open court, could now be withheld from public scrutiny.
These men pleaded not guilty or stood mute at their December arraignment. In the eyes of the law, they are innocent until proven guilty.
The charges against them have proceeded thus far on the evidence that was presented in open court.
As Record-Eagle Senior Reporter Mardi Link has documented, the case against these men involves thousands of pages of written material and hundreds of hours of recorded conversations collected by FBI agents and others, between November 2019 and October 2020.
The fact that the state now seeks to conceal these records from public purview is troubling on more than one level.
During the preliminary exam, exhibits selected from discovery evidence were shown on a screen in such a way that the audience in the courtroom could not view it.
Then, when the issue of public access to these exhibits was raised in court for a district judge to consider, one of the attorneys representing the state interjected that the Michigan Attorney General's office maintains possession of the material being presented and that the public had only to submit a Freedom of Information Act request to their office for the material.
When that FOIA request was made by the Record-Eagle, it was swiftly denied. Subsequent FOIA requests have received similar responses.
This isn't just legal posturing; this is a deliberate attempt to prevent disclosure of evidence that, by right, the public should be allowed to see.
Yet the way this case is being handled by the state seems as if these prosecutors don't understand some fundamental rules of legal procedure.
Maybe it would help for us to explain something to them: First and foremost, the courts belong to the people.
As the Michigan Supreme Court stated in Detroit Free Press v Recorder's Court Judge, 408 Mich 364 (1980): "... The public-trial concept developed primarily for the benefit of the public. It is basic to a free and open society that public access to trials be maintained."
Court records also are generally open to the public, according to that ruling.
And, when a court record is sealed, even temporarily, it is done for very specific reasons that must be explained to the public.
"We normally keep our files open, unless there's a darn good reason to keep them closed," said 13th Circuit Court Judge Kevin Elsenheimer during a pre-trial hearing Jan. 23 over which he was presiding. "The file will remain open for access to the public."
Now that's a judge who understands his role and what's required of him.
Unfortunately, a motion to seal discovery evidence was made shortly after that hearing and it has been under consideration since then. On March 17, we hope Judge Hamlyn will act in accordance with his court's past practices.
In the meantime, we wonder about the attorney general's office and its understanding, not only of proper court procedure, but of integrity.
The posturing in court about submitting a FOIA request to obtain these documents -- and the subsequent denial of that request -- certainly showed a lack of integrity. But their attempt to shut down public access to evidence already presented in open court extends far beyond that.
To seal the records now would make a mockery of these proceedings and, ultimately, fly in the face of a fair trial.
-- Traverse City Record-Eagle