SALT LAKE CITY — After West Valley police officer Cody Brotherson was killed in the line of duty, it seemed that everyone knew his name.
The officer's death and memorial made national news and grabbed the hearts of Utahns. Countless strangers learned of his history as a "hometown hero," growing up to become a beloved part of the police department in the city where he was raised. Thousands sent condolences, while crowds filled the streets to honor him during the funeral procession.
But almost nothing is known about those accused of killing him.
Brotherson was attempting to lay down spike strips to stop a reported stolen car his fellow officers were chasing when at least one officer saw that vehicle swerve toward Brotherson, striking him and likely killing him on impact. Three teenagers believed to have been inside the car were arrested at two nearby houses across the street from each other.
Utah law says felony criminal cases for juveniles 14 and older are presumed to be open to the public. Utahns have a right to know what serious allegations teens are being accused of, what evidence exists against them and how the court system ultimately punishes, exonerates or tries to rehabilitate them.
Those three teenagers have been charged with some sort of crime — yet only a handful of people know what those charges are. Prosecutors asked 3rd District Judge Kim Hornak to seal those charges and she agreed.
That case is just one of several deadly or potentially deadly juvenile Utah crimes where decisions in recent weeks are being made behind closed doors and sealed documents.
On behalf of the public, media outlets are fighting for access to several of these criminal proceedings. With each case comes the complex balance of protecting the rights of a juvenile with the public's right to know how its justice system is operating.
Elected Salt Lake County District Attorney Sim Gill would not discuss why his office sought to seal the charges in officer Brotherson's case, the reasons for taking those unusual actions, whether he intends to push for the three teens to be transferred into the adult system, or any other details about the case, saying only that the decision is appropriate under Utah law.
"Each case requires the court to weigh and balance competing interests, all toward a common goal of ensuring a fair process to anyone who is accused, and that issue becomes more acute the younger you are, and certainly is understood if you're in the juvenile system," Gill said.
• Another juvenile court case with closed proceedings involves a 17-year-old West Valley boy who police say lured his 12-year-old neighbor from her home late at night under the guise of helping him look for his lost cat. The boy is charged with raping the girl, strangling her with a T-shirt, then leaving her naked body in a horse pasture. Police and neighbors say the teen had been trying to lure other young girls from their homes using the same ruse.
A five-day competency hearing for the teenager is underway and continues Monday. But that hearing has been closed to the public, despite attempts to intervene by attorneys representing the Deseret News and KSL. It's unclear whether the public will even be able to know the judge's ultimate decision about whether the teen is competent to stand trial because a juvenile judge's orders aren't considered public. If journalists aren't in a courtroom when orders are issued, will the public know what is happening with the boy?
• Utah journalists also had to fight for juvenile court access last month in a case involving a 14-year-old boy charged with shooting a 16-year-old at a Sandy middle school. The younger teen allegedly shot the Hillcrest High student in the head during a fight over a girl, then shot him a second time after the victim fell to the ground. His attorneys filed motions to have all hearings, including the teen's initial court appearance, closed to the public.
A coalition of Utah media organizations fought that motion, leading the teen's attorneys to withdraw their request.
Not about prying
In the case of the slain West Valley police officer, Gill says anyone who wanted to know what prosecutors' reasons were for sealing the filings could have heard the issue argued at a detention hearing for the three teens. However, juvenile court records — including court dates — are not a matter of public record, and no media were present in that hearing.
Media or members of the public can only be informed of juvenile hearings by contacting the Utah State Court's public information officer.
First Amendment attorney Jeff Hunt said that while Utah legislators in 1993 made important strides to declare that criminal juvenile court hearings are presumed open, the fact that records and court dockets concerning the cases remain invisible to the media and public is a significant problem.
"The system is so closed that we're not able to monitor the proceedings and understand when there is a closure issue," Hunt said. "That's really something that I think we need to get fixed. There's no reason why the dockets can't be accessible to the public. (The court) can do that in a way that preserves information that needs to be confidential under the rules or the statute."
Hunt emphasized that seeking information about how juvenile crimes are adjudicated is more than just prying.
"It is crystal clear, in both the legislative history, the floor debate for these issues, the language itself, that if you commit an adult crime you're going to be treated like an adult, and that means (public) access," Hunt said. "This isn't about the media prying in areas where they shouldn't pry into, this is the media acting as a surrogate for the public reporting on cases that the Legislature has said should be open, and presenting that information to the public so they can be informed about not only those cases, but about how the system works."
A coalition of Utah media — including Deseret News, KSL-TV, KSL Newsradio, the Salt Lake Tribune, ABC 4, KUTV, Fox 13 and the Utah Headliners Chapter of the Society of Professional Journalists — is opposing the closure.
"As we noted in our court filings, the violent death of a police officer erases not just an important life, but part of our sense of common security. The wound to the community heals slowly, and may not heal at all if the justice system designed to help address it is hidden from and unaccountable to the public," said attorney Mike O'Brien, who is representing the coalition.
Three separate hearings to argue the coalition's motion are scheduled next week, where O'Brien said he is confident Hornak will carefully and fairly consider the media's position.
"We have good arguments and a reasonable, but not guaranteed, chance of success," O'Brien said. "Many other juvenile courts have ably resolved cases like these without having to do so behind closed doors. The juvenile court statute provides a presumption of access and open hearings, and there must be good cause to close the proceedings."
Speaking in general and not about a specific case, Gill said the juvenile court system is carefully constructed to deal with a wide range of offenses while allowing room for potential rehabilitation for young offenders. That includes protecting their identities so that, whenever possible, a rehabilitated juvenile has the best chance at a successful adult life unburdened by youthful actions, he said.
On the other hand, Gill noted there are avenues to move serious crimes from the juvenile system into the adult system, even though the defendant is still a minor.
While the public maintains a right to information and an interest in juvenile cases, the court's obligation to them must be weighed against the needs of the juvenile through good public policy, he said.
"Here's the critical balance. We cannot, in our desire for greater and greater disclosure, compromise what would be otherwise the constitutional rights of a person who is accused," Gill said. "That would really be doing a disservice, that we are saying that our right to know should trump somebody's right to a fair trial, or somebody's due process rights, or the proportionality of accountability of punishment should be compromised because we feel more offended."
On transparency issues in juvenile court, Paul Cassell, criminal law professor at the University of Utah's S.J. Quinney College of Law and a former federal judge, said that while state statute leaves room to close portions of juvenile hearings for specific, sensitive reasons — such as presentations about psychological health, home life and upbringing, or mental competency — age is not sufficient cause to move a case behind closed doors.
While juvenile courts maintain the ability to close those proceedings, Cassell said, he believes juveniles involved in serious crimes should expect public scrutiny for their actions.
"My sense is that, for serious crimes involving kids over the age of 14, generally sealed proceedings are not proper, that the public's interest outweighs whatever privacy interests the juvenile might have," he said.
Hunt maintains that, while sensitive, it is appropriate and important to maintain openness wherever possible in the "critical junctures" of competency or certification hearings. In a certification hearing, arguments are made whether to transfer a juvenile into the adult system.
"There is a strong public interest in finding out how those cases are handled," Hunt said. "Those are critical junctures in a case that's in a juvenile court, and so the Legislature has said that for those proceedings there is a strong presumption of access, we're going to have those be open, and someone who wants to close them must come up with a very compelling reason."
In the case of the boy charged with murdering 12-year-old Kailey Vijil, the closed competency hearing began last week and wraps up Monday.
Learning of the closure just days prior, the Deseret News and KSL, represented by Hunt, attempted to intervene in the decision but were shut down when 3rd District Juvenile Judge Jim Michie was unwilling to delay the long-awaited competency hearing.
Instead, Michie ordered that issue be raised again at a Dec. 16 hearing regarding media and public access to preliminary and certification proceedings.
In that case as well, inability to review juvenile court records left media scrambling at the last minute to oppose the decision — this time in vain, Hunt noted.
When it comes to efforts to close a courtroom, Cassell says an interesting question arises: Who represents the public?
"A defense attorney, of course, will want the case closed so that his client doesn't face public scrutiny, and it may be that it's simpler for prosecutors to have courtrooms closed as well. It's harder for the public to ask questions about the handling of a case that they don't know anything about," Cassell said. "The public then has to rely on news media and perhaps the judge to speak to the broader public interest on these cases."
Efforts to close courtrooms may not be squarely presented to a judge, Cassell added, because there generally isn't an attorney speaking for the public. If the issue is made known to someone, like a reporter, who then steps up to fight the closure, the process is complex and costly.
It is Cassell's opinion that, in Utah, there are more cases being incorrectly closed than cases being incorrectly opened.
Moving forward, Cassell said Utah's policies regarding juvenile crime are in line with other states. The focus instead should be on how those cases are handled.
"I don't think this is a situation where you can say Utah has somehow been inattentive to the issues or needs to update its laws, I just think that Utah, like many other states, is struggling with how to balance some of the competing concerns here."
"It is true, at some level, that keeping juvenile proceedings confidential may make a marginal contribution to the rehabilitation of the offender, but we've just, I think as a society, we're beginning to place interests of crime victims and the public more broadly ahead of those of an individual juvenile offender."