Gag order sought in death of boy, 5

February 7, 2019

Prosecutors and lawyers for a man accused of beating a 5-year-old boy to death in March want a judge to keep secret Indiana Department of Child Services records that include details about the child’s alleged abuse.

That comes as state lawmakers debate a measure that would restrict access to records in child abuse and neglect investigations and after The Journal Gazette published information last year from DCS documents in another case. A judge in that case ruled disclosing the information threatened the defendant’s right to a fair trial and ordered jurors from outside Allen County to hear the case.

Daniel Pope, 29, also known as Danial Pope, is charged with murder and aggravated battery in the death of Benjamyn Otto McKinley Frederick, the son of his girlfriend.

His lawyer and prosecutors argue in court documents filed in Allen Superior Court releasing DCS records “risks substantially prejudicing both the state and the defendant’s right to a fair trial.” They also argue the release “will prejudice the jury pool to the extent that (Pope) cannot receive a fair trial in Allen County.”

Documents signed by Allen County Prosecutor Karen Richards and county interim chief public defender Michelle Kraus ask Allen Superior Court Judge Fran Gull to stop the release of the records, which are sought by an unspecified media outlet. A gag order proposed by Richards and Kraus would prohibit “any party, including DCS from releasing any information or opinions regarding matters pertaining to the” case.

State law allows for the release of such information. When it’s requested, DCS releases records to the agency’s local office, which then gives them to a judge to redact anything confidential.

The Journal Gazette last year sought and received hundreds of pages of documents regarding the 2017 death of Malakai Garrett, 2. Police said the boy was beaten and Mitchell Vanryn, the boy’s caretaker when he died, is charged with murder. His mother, Amber Garrett, is charged with two counts of felony neglect.

Gull approved a request by Garrett’s attorney to have the case heard by out-of-county jurors after the newspaper and WANE-TV published information included in the reports. She said at the time confidential information included in the reports should not have been released.

A bill to curb access to that type of information passed the Senate Corrections and Criminal Law Committee on Tuesday. Indiana Prosecuting Attorneys Council officials have said keeping the records confidential will help ensure fair trials.

Council Executive Director Dave Powell asked lawmakers last week to add a provision to the bill that would make it effective upon passage because of a pending records request in Allen County. The provision was added Tuesday.

Requests to keep records confidential in the Pope case reference the Garrett case and ask that they remain sealed under court rules allowing judges to close otherwise publicly accessible records in certain circumstances.

″(The) substantial prejudice to this cause cannot be avoided without prohibiting public access,” a joint motion to exclude DCS records from public access states.

Indiana Public Access Counselor Luke Britt said requests in criminal cases to make documents confidential “to protect the integrity of the case” are common. It’s up to the judge to decide whether to approve the requests, he said.

“Judges do have discretion to do that,” Britt said. “They can definitely do that as long as the request meets certain criteria.”

Court rules allow judges to keep records secret in some “extraordinary circumstances,” including when the requester shows “a substantial prejudicial effect to ongoing proceedings that cannot be avoided without prohibiting public access.”

Pope was charged in the boy’s death after the child was taken to the hospital, where doctors told police Benjamyn was “severely beaten and has numerous defensive wounds in addition to his brutal wounds on his chest wall and all up and down his left side and on his genitalia,” a probable cause affidavit states.