Earlier this week, U.S. District Court Judge Gina Groh released her decision acquitting former West Virginia State Trooper Michael Kennedy* of depriving the rights of an unidentified youth. Specifically, Kennedy was accused of physically assaulting the 16-year-old while assisting in the boy’s arrest.
On November 19, 2018, the youth, identified only as J.H., ran his vehicle into a parked Berkeley County Sheriff Deputy’s cruiser, and then led police on a high-speed chase, eventually crashing into a utility pole.
Police pulled the youth from the vehicle and arrested him. Kennedy was accused of punching the boy in the back, then picking him up and tossing him on the ground as he put up some resistance. The suspect was not seriously injured.
A two-day bench trial was held last October, and this week Judge Groh ruled that Kennedy’s use of force was not unreasonable. The bar for determination of guilt is high and clearly Judge Groh believed the government did not meet the burden beyond a reasonable doubt.
However, the judge also felt it necessary in her ruling to criticize the Berkeley County Prosecutor’s Office for releasing the police dashcam video of the incident and the media for its reporting.
She said the release was “improper,” adding, “Presumably, this case, along with the reputations of the juvenile and all law enforcement officers shown on the video, has already been tried on the media stage by public opinion based upon the released video and statements of people who were not present at the scene of the alleged offense.”
That’s an extraordinary reach by the judge.
First, media outlets filed Freedom of Information requests for the video. Prosecutor Catie Wilkes Delligatti withheld the video, citing the exemption in the law for an ongoing investigation. The prosecutor distributed the video to the media only after the investigation was complete and a federal grand jury had indicted Kennedy.
Second, Judge Groh cites no evidence that the case had “already been tried on the media stage” except to say that she “presumed” that had occurred. That’s a flimsy argument and it discounts the ability of jurors to set aside what they may have seen or heard and reach a verdict based on the evidence.**
Third, Judge Groh writes in a footnote that if the public wanted to see the video they could go to the trial. Very few people can take off work or ignore their other responsibilities to observe a trial. That’s what the media are for, to cover events for the public.
The judge said the release of the video and the various statements to the press threatened the constitutional rights of the defendant. This could have a chilling effect going forward. One can easily imagine a prosecutor or police department using the judge’s rationale to avoid releasing information that the public is entitled to see.
The proper guidance for the release of information in these instances comes not from Judge Groh’s editorializing, but rather from Prosecutor Delligatti for faithfully following the Freedom of Information Act. The right to a fair trial is not in conflict with FOIA.
*(The State Police fired Kennedy following the incident.)
**(The defense moved, and the government agreed, to try the case before a judge and not a jury.)