City attorney defends records denial

Posted: Monday, July 12, 2010

City attorney John Hartle last week defended his decision to deny a Juneau Empire open records request concerning charges against a former University of Alaska Southeast student that was dismissed by the state.

The request was for Juneau Police Department files concerning sexual assault allegations against Dominic Merrill stemming from a January incident at the campus.

"By reviewing the letter I originally sent to the Juneau Empire in light of their request, it doesn't change the legal analysis," Hartle said. "We just can't release the record."

Hartle cited the state's Victims' Rights Act as grounds for the refusal to protect the accuser's identity. The Empire questioned the accuser's victim status because all charges were dismissed, and contends the public's right to know how the case was handled supersedes individual privacy in cases such as this.

Hartle, who played no role in the decision to drop the charges against Merrill, maintains that the city did not prosecute the case and his denial is based solely on his role as the city attorney.

"I knew nothing about this case," he said. "Only when the records request came in, and I studied the record extensively, I just think it justifies my initial response."

Hartle said he would go back and look at the Empire's initial theory. Even still, if the accuser is not a victim, she is certainly a witness, he said.

"I am always happy to have my theories challenged," Hartle said. "She is referred to as the victim in all the (District Attorney's files). ... Anything filed in court is going to be public record."

An Affidavit Of Counsel obtained at the courthouse revealed some of the information being sought. The affidavit contains a question JPD investigators David Campbell and Brian Dallas asked Merrill when they interviewed him on Jan. 28 concerning the allegations. Merrill told them, "I am sorry for hurting her. I took advantage of her."

When asked if he thought the alleged victim consented to having sex with him, Merrill stated, "No sir. I don't know."

Merrill's attorney in the case, Michael O'Brien, said his client was unwilling to grant an interview with the Empire.

Former state prosecutor John Novak, now representing the Alaska State Troopers and state crime lab, commonly gets involved in public records requests when they involve the troopers and said he would look into why these records were not being released.

"I don't know what basis upon which the city of Juneau could deny the public records request," Novak said. "If this were a troopers case and the criminal case was done, there wouldn't be any reason we wouldn't release the record. The police report wouldn't really answer the question on charge dismissal unless the police report reflects inconsistent statements."

Novak did state that this was not a trooper incident but one that involved the Juneau police and state trial courts. The Empire left phone messages for District Attorney Doug Gardner who prosecuted the case but did not receive a call back as of press time.

• Contact Klas Stolpe at klas.stolpe@juneauempire.com.



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