Publicly revealing the slightest detail about how prosecutors get informants to open up in a criminal investigation could put lives at risk, a lawyer for the Clark County District Attorney’s Office told a judge Thursday.
Even disclosing a court-assigned case number could expose a confidential informant, said Matthew Christian, a civil attorney for the office, arguing that media outlets such as the Las Vegas Review-Journal should not have access to the information.
“We are talking about criminals, people who do violence to others, and folks who are brave enough to come forward and cooperate with law enforcement,” Christian said. “If this information is readily available to the public, why would anyone in their right mind want to cooperate with law enforcement?”
Christian’s arguments came in a hearing on a lawsuit filed by the Las Vegas Review-Journal seeking access to records of payments made to witnesses in some criminal cases by the Clark County district attorney’s office. The newspaper requested the documents in relation to a series of articles published in August about payments made by prosecutors but not always disclosed to defense counsel. Those articles prompted District Attorney Steve Wolfson to say his office would begin disclosing the witness payments to defense attorneys.
Maggie McLetchie, a lawyer for the newspaper, argued in a nearly three-hour hearing before District Judge Susan Scann that the public has a right to know what prosecutors are doing to facilitate cases through the court system. In some cases, she said, informants may already have testified in open court, so there’s no need to keep information about them sealed.
“What’s really going on here is that they just don’t want to produce these documents,” McLetchie told Scann. “I certainly don’t want to put anybody in danger, but I’m certainly interested in this practice of giving people benefits to get information and to move prosecutions forward. … It’s speculative to say that producing the names of people who have already testified is going to cause any risk of harm.”
Among other records, Wolfson has refused to make public an unredacted ledger for his Victim Witness Assistance Center’s checking account. A copy provided to the newspaper lacked such basic information as the numbers for cases that involved payments to prosecution witnesses. The names of the witnesses and reasons for payments also were redacted.
Wolfson also has failed to provide a copy of the district attorney’s Inducement Index, a database that contains benefits offered to people in exchange for their cooperation with prosecutors, according to the lawsuit.
Only three people within the district attorney’s office are allowed access to the database.
“That’s how sensitive this information is,” Christian said.
Now Scann will have an opportunity to view parts of the index. In order to better grasp the contents, the judge asked Christian for a random sample of six entries from the database. She is expected to decide next month if the records are public under state law.
The Review-Journal in court papers contends the district attorney has either withheld or redacted numerous requested emails relating to the Victim Witness Assistance Center and its ledger.
Despite the newspaper’s repeated efforts, the suit says, Wolfson has continued to withhold requested public records, refused to provide unredacted copies and refused to offer any factual basis to support his failure to comply with the public records law.
Christian pointed to a series of documents, some without any information blacked out, that “after very careful consideration” the district attorney had already turned over to the newspaper.
“The effort that was put into this was great,” he said. “We’re upfront. We’re forthright. We’re not keeping any secrets.”
Christian suggested reporters could just ask Wolfson about the documents, rather than reading them.
“If what they’re looking for is a description of the types of deals that folks get, why do they need specific case numbers and specific deals?” Christian said. “Why can’t they interview someone from the district attorney’s office and ask about what the types of deals are?”
McLetchie noted that state law doesn’t require anyone to tell Wolfson why they want a public record, or prove that there’s a public interest in the documents.
“We’re not limited to the information and the questions that the district attorney’s office wants to answer,” McLetchie argued. “They don’t want the R-J to see this information. Instead they want the R-J to go to them and have to ask them to answer questions. And that’s not how the public records act works.”
McLatchie noted wide variation in Wolfson’s redaction, with more information withheld — down to the name of the prosecutor involved — the larger the payment.
“They can’t pick and choose what they’re going to produce,” McLetchie said.
On the other hand, Christian said analyzing each case in the index to determine exactly how much information should be redacted would be “very time consuming” and “burdensome.” He said prosecutors must weigh the judicial process, “crime fighting, safety and danger” with that of public interest.
“We have an obligation to give up public records,” he said. “But we also have an obligation to go to court, put on trials, make deals and put people away who have committed crimes.”
McLetchie said the newspaper is concerned whether the index is being used accurately, and it’s unclear what the database includes.
“It’s absolutely not up to the public entity to decide when a newspaper’s reporting on a topic is done,” she said.
Contact reporter David Ferrara at firstname.lastname@example.org or 702-380-1039. Find him on Twitter: @randompoker