Kokomo Tribune; Kokomo, Indiana

Columns

April 25, 2014

MIKE LEWIS: Covering closed reports

Pre-sentence documents are not public records

Part of nearly every sentencing hearing is closed to the public. We can be there to cover it for you, but we won’t know about an important part of it.

That’s not the fault of reporters, local judges, prosecuting attorneys or defense lawyers. It’s a wrinkle in Indiana law.

In a typical case, before a person is sentenced for his crime, a probation officer prepares a pre-sentence report. The judge, the prosecutor and defense attorney rely heavily on that report. In nearly every sentencing hearing I’ve covered, the judge starts by asking both sides about the report — specifically, he asks if there are any corrections or additions to be made to the contents.

The two sides will sometimes argue about the specifics of the report, citing pages and paragraphs along the way. I’ve seen all three lawyers — the judge, prosecutor and defense attorney — hold copies of the things, marking them up like they were textbooks to be studied, and citing bits and pieces of them as if they were reference works.

Truth is, they are.

Pre-sentence reports hold a lot of information about the defendant. Some of that information, such as the person’s criminal history, is a matter of public record. Some of it, such as the reports of mental health counselors, is not.

And therein lies the rub.

Pre-sentence reports are not public records.

The judge can read from it during the open sentencing hearing, and both sides can refer to the paragraphs and facts inside it. The people in the courtroom hear those exchanges and get bits and pieces of the report’s contents. But the public cannot read it to get the whole story.

As you might imagine, this can leave a reporter fairly confused.

Part of me understands why a pre-sentence report is closed. The document might hold unfounded accusations. The defendant, for example, could claim that other people had harmed him, whether they did or not. The report might hold private medical information about the defendant, or it might list private medical information about his relatives.

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