Lexington police say they will not publicly release the investigative file in the murder case against former state lawmaker Steve Nunn until after Nunn has completed his life sentence in prison.
The Herald-Leader had requested the police file through the Kentucky Open Records Act after Nunn pleaded guilty on June 28 to fatally shooting his ex-fiancée, Amanda Ross. He was sentenced to life in prison without the possibility of parole.
Jon Fleischaker, a noted First Amendment lawyer in Louisville who works on cases for the Kentucky Press Association, called the police department's refusal to release the records "ridiculous."
Fleischaker said waiting until a life sentence is served means "effectively they're never going to be open, that you have an indeterminate life to wait."
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Lexington police have in the past released case files after defendants were convicted and sentenced. The Herald-Leader has received such files in the past while convicted criminals were still alive and serving their sentences.
Police records custodian officer Aaron Kidd cited the 1992 Kentucky Supreme Court case Skaggs vs. Redford as reason for withholding the Nunn file.
In that case, David L. Skaggs submitted an open records request for evidence used by Commonwealth's Attorney Carroll Redford Jr. in Skaggs' murder conviction. The Kentucky Supreme Court ruled that convicted criminals do not have the right to receive such records until after their sentences have been served.
Lexington police did not cite Skaggs vs. Redford in 2008 when it provided the Herald-Leader with the case file of Charles F. Little Jr., a retired Lexington public school music teacher accused of sexually abusing three teenage boys in the 1970s and 1980s. At the time, Little was on two years' probation after entering an Alford plea to three misdemeanor counts of sexual misconduct.
Police also provided documents to the Herald-Leader in 2007 on the case against Corey Jackson, who was serving a prison sentence for first-degree robbery. Jackson's case was on appeal at the time police released his file.
When asked why Nunn's case file was being withheld when others have not, Lexington police spokeswoman Sherelle Roberts deferred comment to the city's law department.
City spokeswoman Susan Straub said she could not comment at this time because the city's law commissioner is out of town. Straub said she hoped to be able to comment in more detail on Monday.
Fleischaker said he had never seen Skaggs vs. Redford used as an opinion denying media access to criminal files.
Skaggs filed the open records request, "that's the difference," Fleischaker said. "It was not a newspaper, not a third party."
Fleischaker said prosecutors are exempt from Kentucky open records laws, but police departments are not. He said police departments typically withhold files while criminal cases are ongoing, but not after suspects have been convicted and sentenced.
"The [Nunn] case is over. You can't appeal a guilty plea," Fleischaker said. "And once it is over, you ought to have access to the police file."
Herald-Leader Editor Peter Baniak said the newspaper "will pursue the appropriate legal recourse to challenge this decision."
Robert Houlihan Jr., an attorney for the newspaper, sent the Division of Police a letter Friday afternoon asking that the records be released "immediately." The newspaper could appeal the open records denial to the state attorney general's office, or by going directly to Fayette Circuit Court.
"We do not believe that Lexington police are citing a valid reason for withholding the Nunn investigative file from release under the state Open Records Act," Baniak said.
"We also do not believe that the police department's position on this particular case file is consistent with its past practice of releasing investigative files once cases have concluded."