By Josh Meyer
Los Angeles Times
213-237-7961. E-mail: firstname.lastname@example.org
IRE Conference, Phoenix, June 1997
Court records, perhaps as much as any other kind of document, can make a great story or break one, if you don't know where to look, or when to look, or how to look. They can be a gold mine, a way to background a person in a hurry; or if you're not careful, a way to screw up really badly in a hurry, if you assume too much from them. In other words, make sure the court records correspond to the person you're writing about. I've seen plenty of nightmares in which reporters on deadline pulled a court file, or relied on a database search that showed a past conviction, arrest, whatever, only to find later [from their lawyer, usually] that it was a different person with a similar name, address and date of birth.
There are few secrets when it comes to court records. Being a successful purveyor of such documents is mostly in the attitude, and for that, there are a few obvious words of advice before we discuss specific documents:
BE INQUISITIVE: Ask a lot of questions. BEFORE you after dealing with a crisis deadline situation, find out what kind of documents are available in your particular court jurisdiction (they're all different. Ask the denizens of the courthouse; court clerks, defense lawyers, prosecutors, messenger dudes, gadflies, anyone. Don't wait until you're on deadline or looking for something in particular. I like to take a holistic view of court records; it's not just what's IN court, it's everything from the very beginning of the criminal process to the end, including search warrants, bankruptcies, restraining orders, etc. etc. Search warrants, for instance, are a gold mine, and fall under the category of court records in my book, since they must be approved by a judge.
BE AGGRESSIVE: Many times you will be told that certain records aren't for your perusal, or that you can't copy them at least not now," or that they simply can't find them at least not today. At the risk of belaboring the obvious, don't take no for an answer. Politely but firmly say you need the records whether it be a clerk at the front counter, or a judge or his/her clerk. You as a taxpayer pay for the court system to operate. You are entitled. Ask to speak to their supervisor if you have to, or even the court administrator or presiding judge. I've had to get them involved at times, and if handled the right way, it can work wonders.
Except in those specifically stated instances where court records are confidential, you have a right to review them, and to have copies made. Exercise that right, and make friends with your paper's lawyer. Build a good working relationship with said attorney and use them to help break free documents, through the use of public records act requests if necessary. (Hint: keep such public record act forms on a template, so you can churn them out often) If you do, those who would deny you documents will soon (hopefully) back down when they know you don't intend to go away without a fight.
BE NICE: Being aggressive and being a jerk are two completely different things. Court clerks are among the most put upon of bureaucrats. They are usually understaffed, underpaid, overworked and overwhelmed and they have to deal with obnoxious lawyers and legal messengers all day long, not to mention reporters. Piss them off and they値l never get you what you want, or not all of it, anyway, and especially not when you need it. Be NICE to them, on other hand, and you値l be amazed at how quickly your documents get copied, and how thorough their searches will be. If you can take sources out for a $60 dinner, you can buy a clerk a cup of coffee, cappuccino even, especially if you cover the courts. If you can lure a head clerk out to lunch, all the better. I've gotten some great stories from clerks who see and hear everything, and sometimes want to drop a dime on something or somebody (even another reporter, who pissed them off). And not to advocate trafficking in confidential material you're not supposed to, I've even had court personnel accidentally" show me, give me or tell me about juicy documents I'm not supposed to see, like sealed search warrants, or tip me off to come check something out. They can be a vindictive bunch indeed. But if you can use that in your favor, all the better.
Make friends with the attorneys on both sides, be it a civil or criminal case. They can turn loose a lot of information, usually quicker and a hell of lot cheaper than the courts but ONLY if it is information that serves their needs. NEVER assume they're being honest or even remotely complete in their assessment of a case. But they値l burn up your fax machine, which really helps if you need a complaint or other information on deadline. Sometimes they can even use their powers of discovery to get things that may be helpful to you, but be VERY careful of not appearing like you're working with them for any common goal. But if they can use you, you can use them as well. Ask for things. Just don't let that get in the way of writing fairly and objectively.
BE INFORMED: Many times a judge, an overly officious court clerk or a counter person will say you have no right" to see something. They're often wrong, or guessing, or bluffing. Each state press association has a copy of your legal rights as a reporter; get one, read it, know it. This applies to oral" court records too. In Los Angeles, much of the business of the court is done in session many court motions, for instance, are entered orally, and the written record gives little in the way of detail of what is actually happening in a case. That makes it critically important to be there for all court hearings, even if you're told that nothing is going to happen (See section on Never Trust Lawyers. Ever') During those court hearings, I've often been told by a judge that I have to leave while something sensitive is being discussed, or that the barrister is going to bring the players up for a sidebar conference or back into to his chambers. Object, firmly but politely. Quote from the First Amendment handbook if you have to if you can prepare some kind of blanket statement ahead of time, all the better. But don't let them get away with it, since usually it is often an issue of judicial discretion, when the judge knows full well you have a right to hear what he/she is saying. I usually make a formal request that the court proceedings be halted so that I can call my paper's lawyer. Sometimes it doesn't work, sometimes it does. But at least it gets your objections on the record in case you want to pursue it, especially if it happens more than once. Often, just objecting in an articulate and informed manner makes the judge back down. In some civil cases, judges can and do allow a reporter back into their chambers to listen in on discussions; it's rare, but it happens IF you have the gumption to insist on it.
Note: If you're going to halt court proceedings while you get your lawyer, make sure the lawyer isn't going to blow you off. Judges tend to get really pissed off at that. It interrupts their golf time. (The Times, thankfully, has a wonderfully aggressive lawyer, but other papers for which I've worked have not. Know your support system before you decide to press the issue)
Speaking of golf time, learn the hours that the court is supposed to be in session, and actually IS in session. The Boston Globe did a wonderful series a few years back in which they followed magistrates as they spent a helluva lot of court time anywhere but the courthouse. If the courts are horribly backed up with caseloads, as they usually are, it makes for an even better story. But I digress)
Learn where things are filed. LA is so huge that cases filed in different courthouses have different letter prefixes and alphabetical and numerical codes. Figure them out. Knowing those can save you the time and hassle of driving to the wrong courthouse.
PLAY DUMB Even if you know you're not supposed to get some document, ask for it anyway. Sometimes it works. Sometimes you have to wait until those who know what they are doing go on their lunch break, and THEN ask for the documents. I.E.: Search warrants, which are often the first documentation of the existence of a criminal investigation that will ultimately end up in court and in the paper. Problem is, cops in LA are catching on to this, and they're having many affidavits filed in support of search warrants sealed. (The affidavit is how the coppers lay out their case to a judge as to why there are reasonable indications a crime has been committed, and what evidence they expect to find, which a judge ostensibly needs to approve the warrant. The return on the search warrant is a listing of what they found)
Even if the warrant IS sealed, or you've heard that it is, ask for it anyway; sometimes it works. A competitor was tipped off to a great search warrant affidavit showing how a former top county official was under criminal investigation for laundering campaign money through a foundation so he could travel around the world with his wife. It was supposed to be sealed. He asked for it. He got it. We got screwed. By the time we read about it in the paper, that puppy was sealed up tighter than King Tutu痴 sarcophagus.
Note: If a search warrant is sealed, cops
seeking the seal usually have to state the specific reasons WHY it is being
sealed. It's supposed to be on the warrant filing itself. Sometimes that
application for a seal in itself makes for a story, or at least some help
in pointing you in the right direction. If it's not specifically stated
why it's been sealed, make them provide you with that information. Nowadays
some cops are even filing the request for a sealed search warrant under
seal. Be aggressive and demand to see the rationale for that too. Take
down the names of those who deny you access. It helps document a record
of inappropriate uncooperation, and at times scares bureaucrats into coughing
Think of criminal court records as a roadmap of sorts, laying out the justice system's attempts to prosecute a criminal from start to finish, and his/her lawyers' attempts to refute the charges, or at least get them dismissed or diminished. In cases where no one is talking, these often are the only way to get a story in the paper or on TV.
But they can also be used to provide background on someone in a hurry as can civil records even if they have nothing to do with the case at hand. On a breaking news story like the OJ Simpson murder case, you'd be amazed at how helpful such documents can be in getting information (information, incidentally, that can break the back of your competition) NEVER assume something isn't related. The moment someone is in trouble, check ALL of their court records, even that civil dispute from 10 years ago, and ALWAYS the divorce file (more on that later) The best thing about court records is, they're protected in the sense that you can use them almost as the gospel. If it's there in the record (and you're sure it's the right person) you can toss it right into a news story, provided you use the right context. Like OJ Simpson's domestic battery court records, for instance. We got 'em, used them to establish a history of violence against his wife, and by the next day they were being quoted around the world. Not much OJ or Johnnie Cochran could say about that.
In California, there are two ways to build a criminal case against someone, and thus, two types of documents.
First comes the SEARCH WARRANT, however. You must use them carefully, since it is often a sales job by the cops, representing what they know at the initial stages of an investigation. Since they are trying to get a judge to approve a search, many are exaggerated and based on assumptions, some of them faulty. Although they make for great copy since they are in fact legal documents, be careful. The allegations contained in them may be a bit one dimensional and lacking context or good explanations. They may not hold up under further investigation. That indicted county official just yesterday ended up pleading guilty to a minor tax charge; all of the theft and other serious charges against him evaporated.
Once the search is executed, the cops have 10 days in California to return the warrant, in which they list what they found. Often, the list is incomplete. They'll say they retrieved a computer, for instance. Press them; see if you can get WHAT was IN the computer. If the return contains only minimal information, try to get from the cops what they left out. Also ask the prosecutors. You have a right to know.
Tip: In Los Angeles, many reporters don't even know where to look for the search warrants, which are filed in a loose leaf binder in the criminal court clerk's office. It contains the face sheet only, with the address to be searched and the cop seeking the warrant and date. If you are looking for someone in particular, familiarize yourself with their addresses (home AND business) since that is all that will be listed, not the suspect's name. Also, familiarize yourself with the cops and DA investigators enough to recognize who the players are, so you can tell when something is potentially important. For instance, I've written a lot about political corruption and know the names of the cops that do that kind of stuff, as well as the investigators from the DA's special investigations unit that do as well. I see their name on a search warrant sheet, I pull it no matter what.
And I check the warrant binder routinely. It's an oft overlooked source of good quickie stories. You should also know that when cops want to hide an investigation, they can file the affidavit, etc. in an out of the way court jurisdiction. In LA, there are many courthouses where warrants are filed -- technically, any judge can approve one. So learn ALL of the places where they can be filed, and go there on occasion.
Once the cops think they have something, they go to the local prosecutors, or refer it to the feds if they have to. (they'd much rather keep it though.)
Prosecutors can then seek a criminal filing one of two ways.
1) COMPLAINT METHOD
Usually when the cops think they have the goods on some perp, they meet with a prosecutor and discuss either in person or on the phone whether to file a criminal complaint. The cops often ask for more cases to be filed than the prosecutors are willing to file. Sometimes the prosecutors kick the case back and demand more investigation or proof, other times they reject it outright, approve it or kick it upstairs. Usually this isn't in writing, though sometimes such rejections are. Ask. As I've said, it can't hurt to ask.
In Los Angeles, we have a DA who only likes to file cases that are gift wrapped, or where there is a good chance of a successful prosecution. (You guessed it; his is an elected office. He's also the guy, however, that lost the OJ case and a host of other high profile cases) If you can't get any kind of written record of a rejection of a request for prosecution, you should at least demand statistics on how many cases are accepted and rejected. If they're not keeping such stats, I'd think that would be a story in itself.
If the prosecutor approves the case for prosecution, try to ascertain if it's at the level of criminal wrongdoing the cops asked for, or if they致e bumped it down to a less serious, more easily winnable case, or pumped it up more than the cops think it's worth. Comparisons are always fun; compare, for instance, how many murder cases result in prosecutors seeking the death penalty as opposed to life in prison without parole or something less. There may be a story about racial bias or selective prosecution there.
If prosecutors agree that prosecution is warranted and don't take the case to the grand jury (see below), they will file a complaint, which is the more public of the two avenues. The court record will include the complaint, which is the primary court document laying out the case prosecutors hope to prove. The court file hopefully will also include some kind of supporting information along with the complaint, such as affidavits from criminal investigators in support of the charges being filed. This information will be used at the defendant's preliminary hearing, in which a judge must be persuaded by the prosecutors that a criminal trial is warranted. The prosecutors often will use the testimony or affidavits of cops and witnesses. Defense lawyers will say the prosecution has no case, and seek to prove that, at times by introducing evidence of their own. Other times, they値l just whine, or obfuscate. Whatever is in the court file, ask the prosecutors what has been left out especially such affidavits. Get them, even if you have to be a pain in the ass.
The testimony provided by the prosecution in support of the filing will be opposed by defense counsel at a public hearing) at which they値l try to convince the judge to throw out the charges. The testimony will also be used by the defense to try and impeach the credibility of the witnesses and refute their testimony when the case gets to trial.
Obvious suggestion: You know by now NEVER to talk to a flak for the prosecuting attorney's office when you could be talking to the real deal, the actual case prosecutor; they値l be more familiar with the documents, they may be more loose lipped and more confident about disclosing details and strategies of the case. And they're the ones you値l want to build a relationship with, for later, when such documents DO become available or when you want to have a background, off the record or on the record chat.
Speaking of those chats, don't give up.
A prosecutor who won't talk today MAY talk tomorrow, or the next day, even
to say something new is in the file [or about to be]. I'm always amazed
at how, when prosecutors feel they are losing a case, either in the court
of law or public opinion, how such documents suddenly become available."
Check in routinely with these folks. You never know when a prosecutor is
leaning toward giving up that FBI agent's affidavit or a search warrant
and return on the warrant.
2) GRAND JURY METHOD
In Los Angeles, prosecutors increasingly are using a second method to launch a case; the grand jury system. And for good reason: much of it is done in secret; not just from you but from the defense as well. Grand jury proceedings effectively bar the defense from seeing the prosecution's case until trial. That way, defense lawyers can't see their legal strategy and mount as good a defense. This happened in the Michael Jackson molestation case, OJ, you name it. It's often done simply to shield the process from the press and the public.
What happens in these cases is that the prosecution brings his case to the grand jury, instead of a judge, to prove that he/she has a case worthy of a criminal filing. The grand jury is usually a group of civilians, often retirees with nothing better to do, who sit in secret and hear testimony on such cases as well as review the operations of county government in order to issue inane and simplistic evaluations of how government is working. (those too are interesting documents, but the grand jury usually knows so little about what they're releasing reports about that have to take them with a shaker full of salt)
The prosecutors trot out a parade of witnesses before the grand jury, and tell the members why they should indict a particular person on particular charges. Also known as amateur hour," the grand jury is widely criticized as a patsy of the prosecutors. Usually, they do whatever the prosecution wants, and then the prosecutors have the added buffer of saying if the case blows up in their face that, Don't look at me. I didn't indict them. The grand jury did!"
The main reason prosecutors love the grand jury method is because a defendant indicted by the grand jury does not have the right to a preliminary hearing. He's dumped right into the court docket. Prosecutors don't have to present their case in public before a skeptical judge, defense lawyer or press, and they don't have to worry about any witnesses saying anything in public that can later be used at trial against them. The defense doesn't get to see, in other words, what cards the prosecutors hold.
Using the grand jury also is a handy investigative tool: Police cannot compel a witness or a suspect to talk during a criminal investigation. But they CAN obtain a subpoena through the grand jury system commanding a witness to testify before the grand jury under threat of contempt of court. That means if they don't testify, they sit in the slammer until they change their minds.
There are a number of good records to be gotten from the grand jury process, secret as it is. TRANSCRIPTS of the grand jury proceedings are public at a certain point in the proceedings, even though many judges refuse to acknowledge this. In California, it's 10 days after the court reporter who takes the transcription and then types it up provides a copy to the defense. Get to know the reporters, and deal directly with them. [Warning: grand jury reports can be expensive. It's always worth it though, especially when the paper is paying, not you)
The subpoenas themselves are a great source
of information, and contain wildly varying amounts of information. In political
corruption cases, naming those brought before the grand jury often will
allow you to get a story in the paper that you couldn't before. Staking
out the grand jury waiting area to see who goes in and out, and then interviewing
them is also a tried and true method. They値l say they can't talk about
their testimony. Fine, you reply. Tell me at least what questions you were
asked. Sometimes they're dumb enough to talk, or to at least nod their
heads in confirmation, especially about who is the target of the investigation
if you pretend you know already.
POLICE REPORTS Responding to a call for assistance, commission of a crime, etc. In California, only the first eight lines of it are public, sometimes you can get more. But you have a right at least to the name, address and charge of someone that is arrested. Also, police are required to tell you the basic facts of the case.
WITNESS LISTS: As the case proceeds to trial, try to get a witness list. I've done good stories about how one politician is gonna rat on another one simply by seeing his name on a wit list, and pressing the prosecutors on WHY he's on the list, and who put him there the prosecution or the defense.
PLEA BARGAINS: Most cases are plea bargained, mostly because both sides are willing to trade a possible outright victory for a guarantee such as a conviction on lesser charges or a significantly reduced sentence. Deals are cut; deals that often make for good outrage stories. Usually, prosecutors have to state in writing that a case is being plea bargained, though they may fight release of such documents as internal (and confidential) work product, you can at least try to get them. Sometimes the reasons for the plea bargain are contained in a sentencing report (another gold mine of information), a probation report (even more of a gold mine, with the perp's entire criminal history, and even evaluations of their propensity to commit crimes in the future)
Often, cases are dropped or dismissed. In LA, prosecutors have to fill out a disposition report" that has check off boxes showing why a case was dismissed (insufficient evidence, witness failed to appear, etc) or why a defendant's prior convictions are being stricken (by the way, obviously, get any and all court cases for a defendant his priors will contain much significant) These are great to have, and can even be used to build a computer database of how a particular court or prosecuting agency is doing.
SENTENCING INFORMATION It's easy to find out what kind of jail or prison time someone has been sentenced to serve. But find out how much time they actually DID serve. Some colleagues of mine found in a series last year that county jail inmates served a whopping 23% of their sentences. The best part the justices who sentenced them freaked out when they found out that their stiff sentences were being flouted by the sheriffs department that runs the jails.
INDIGENT DEFENSE Look at the quality of indigent care being provided and look at the documentation what kind of reports they file, how much money they spent, who decides which lawyers get the cases (if they're contract lawyers) and if they do anything to get them, such as give political contributions. One colleague of mine, Ted Rohrlich, is a court record guru who has broken all kinds of great stories using court records, including one a public defender who did such a bad job that an amazing number of his clients ended up on death row. These folks often are paid next to nothing, and provide about that much money's worth of defense.
JAILHOUSE INFORMANTS Not much paperwork, but great stories on how crooks make things up to lessen their own sentences
COURT MANAGEMENT Follow the money. Find out much the court system gets and where the money goes. Judges hate to get audited or have anyone looking into their affairs. Usually for good reason. There's plenty there.
INTERNAL PROSECUTORIAL DOCUMENTS Once a case is disposed of or finally settled, many of the internal prosecutor files are public and you can make a public records request. One key document is the dispo report, where the DA has to explain to his superiors why he took specific course of action; especially a plea bargain. The DA dissects the case, often a superior has to sign off on it. Their plan of attack could be overruled, but that is rare.
You can ask for the filing da's own internal assessment of how the could should be tried or could be won, but it's rarely considered a public document, even after the case is closed.
MINUTE ORDERS Document what happened in court that day, often very cursory; a jury was impaneled, defendant released on bail, etc.
JURY QUESTIONNAIRES, ETC.
Any kind of paperwork you can get on jurors and the jury system often will
make for great stories, from the racial and sex makeup of the OJ Simpson
criminal jury and their backgrounds to something as frivolous as peoples'
excuses as to why they can't do jury duty. (One guy wrote his poodle was
in heat, and he had to guard her)
Unlike criminal cases, instead of a prosecutor you have warring factions of civil defendants and their lawyers. They will often paper each other with motions and counter motions, so check the file frequently. NEVER trust either side to say nothing new is in the file; that just means THEY didn't file anything There might be something in there that makes them look bad; they're not gonna tell you.
Depositions Also, civil cases often involve depositions of witnesses. Those are rarely in the court file but are incredibly rich sources of information and background material. Ask both sides of lawyers for them, and the court reporters involved in the case. You may have to pay for them, but they're worth it.
Speaking of paying, ALWAYS bring your checkbook to the courthouse. There's nothing worse than not having enough money to pay for those 57 cents a page reams of documents you need, especially at deadline, except maybe paying for them with cash and then forgetting to get your paper to reimburse you for them. I could have gone to Jamaica by now with all the money I've lost in such a manner.
Divorce Records Both sides often hate each other. Need I say more? They are often incredibly complete in detailing the assets, and shortcomings financial, ethical, sexual, etc. of their lesser half.
Bankruptcy Records Another mother lode. In California, the federal bankruptcy courts are so backlogged with cases it's insane. Even rich people file for bankruptcy, and there are several kinds, both personal and professional, such as Chapter Seven and Chapter 11. Befriend the bankruptcy court investigators; boy, do they have stories to tell.
Probate records. Lot of good stuff.
Estates, Conservatorships and Guardianships. Also good sources of info.
Preliminary and permanent injunctions.
Last, but not least find a cheap place
to park. Courthouses are outrageously expensive and if you let a meter
run out for more than a second, they値l nail you. Always. It's one way
to get back at lawyers. You get stung in the process and most papers won't
let you write tickets off. Mine won't.