PNA questions judges seal on case
?An attorney for the Pennsylvania Newspaper Association said it is questionable for a Greene County judge to seal a filing in a homicide case after a news outlet requested it.
Last week, a request was made for an amended notice of mental infirmity filed by the defense attorney for Scott Baker, 38, of Nemacolin. Also requested was an amended objection to the notice filed by prosecutors.
Instead of copying the publicly filed documents for a representative of the Greene County Messenger, a court clerk first questioned whether a medical privacy act precluded the release.
After a couple of hours of back-and-forth between the judge and the clerk, the document was sealed from public view on March 21. It had been filed March 17, and was not placed under seal until the request was made.
“The general rule is that if the court is going to rely on something as a piece of evidence, it takes a lot to overcome the presumption of access,” said PNA attorney Melissa Melewsky.
Baker is charged with criminal homicide for allegedly strangling and cutting the neck of his estranged wife, Melissa Baker, 30, at her home on Nov. 20, 2009. The Bakers were separated at the time, and Melissa Baker was living in Crucible with the couple’s then-18-month-old son.
He was scheduled to go to trial this month, but in late February his attorney filed a notice of mental infirmity, delaying he matter.
Greene County President Judge William Nalitz granted additional time to explore the defense. Subsequently, Baker’s attorney filed an amended notice of mental infirmity that indicated Baker suffered from post-traumatic stress disorder and chronic and major depressive disorder.
Prosecutors filed an objection to the amended notice, and it is that is one of the documents Greene County Messenger Editor Steve Barrett requested.
A clerk initially questioned whether HIPAA, a medical privacy act, precluded her from releasing the documents. Barrett said the woman went to speak to Nalitz and returned to provide a copy of an answer to the prosecutors’ objections filed March 21 with the court.
Barrett pressed for the other initially requested documents and the clerk again went upstairs to speak with Nalitz.
Over an hour later, she returned and furnished Barrett with Baker’s amended notice of mental infirmity and an order signed by Nalitz and time-stamped at 3:10?p.m., when she returned from meeting with the judge.
That order immediately sealed the objection to the amended notice of mental infirmity filed by prosecutors.
Nalitz’s order indicated that the filing “makes specific reference to certain events or things discussed in the report” of a psychiatrist. He went on to note that a court rule makes those reports “confidential, and not of public record.”
Melewsky said that there is no question that the public is not entitled to a copy of the mental health report.
“That’s set out by rule,” she said.
The document sought, however, was an objection to a defense-filed amended notice of mental infirmity.
Barring access to a prosecution filing that references the report is a more difficult, she said.
“It would depend upon how much (of the report) is mirrored in the general filing,” Melewsky said.
To block access, however, Melewsky said the filing would have to be “a substantial restatement” of what is in the report.
“This is a unique issue,” she said.
Melewsky said that if the judge believes that the filing makes specific, detailed references to the report that there could be a way of redacting some of the details and releasing it.
While a judge can seal something, she said it is “unusual” for a judge to hand down an order sealing a document after someone requests a copy of it, and while they literally wait downstairs.
The order that sealed the requested document was registered at 3:10?p.m., several hours after a request was first made for it.
Melewsky also noted that HIPAA – which pertains to health-care providers, health plan providers and health-care clearinghouses – doesn’t deal with court filings.
“The clerk’s just plain wrong,” she said.
The defense-filed amended notice of mental infirmity does make reference to a doctor diagnosing Baker with post-traumatic stress disorder and chronic and major depressive disorder.
That filing also indicated that Baker was examined by Dr. Michael Crabtree, who determined that Baker has both post-traumatic stress disorder and a major depressive disorder.
“Dr. Crabtree has concluded that the defendant’s post-traumatic stress disorder began as a child due to physical abuse throughout his childhood,” Public Defender Harry Cancelmi wrote in the filing. “Dr. Crabtree has also concluded that a series of events beginning in September 2009 led to a serious decompensation in the defendant which then led to the events culminating in his arrest.”
Those events — not specified in the defense filing — “led Mr. Baker to have diminished capacity at the time of the alleged offense,” Cancelmi wrote.