U.S. Supreme Court denies Commonwealth's appeal in Earl Washington case

The Norfolk paper reported here that the U.S. Supreme Court denied the Commonwealth's petition for certiorari sought in the matter of the order for the production of Virginia State Police records in the Earl Washington civil case.

For the recent Certworthy newsletter of the DRI Appellate Practice section, I wrote the following about the Fourth Circuit opinion in that case, Virginia Department of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004):

After his release from Death Row, Earl Washington filed a civil suit and subpoenaed records from the Virginia State Police, a non-party. The State Police produced its records under seal. After some records were unsealed, some reporters concluded from the unsealed documents that the State Police had DNA evidence linking the crime to another man. In light of the news reports, the District Court decided to unseal all but one of the remaining documents, and the State Police appealed.

In an opinion by Judge Shedd, the Court of Appeals affirmed the District Court’s orders. In footnotes, the Court resolved some interesting side-issues. First, the Court allowed that an order unsealing documents is appealable under the collateral order doctrine. Second, because of the media’s participation, the Court distinguished its refusal in Pittston Co. v. U.S., 368 F.3d 385 (4th Cir. 2004), to unseal documents at a party’s request.

On the merits, the Court’s task was to weigh the public’s right to information about Washington’s case against the need to protect the state’s investigation into the unsolved murder. Because Washington filed several of the sealed documents with his opposition to defendants’ summary judgment motions, the First Amendment requires the state to show a compelling government interest to avoid disclosure. The state’s interest in non-disclosure of the documents was less than compelling, because the facts they contained were already being published in the newspapers. Also, without deciding whether the public’s right of access extends to the transcript of a pretrial hearing on a non-dispositive motion, the Court ordered disclosure of a disputed transcript, because the State Police had offered no reason at all for keeping it sealed.