From the Times-News

By Andrea Jackson
Times-News writer

The Times-News has challenged the closure of hearings and the sealing of documents in the murder case against Fortino Leon of Jerome.

In court papers filed Friday, Times-News attorney Fritz Haemmerle cited a recent closure of a hearing in the case, sealing of key court documents and confusion over the status of the case in requesting a hearing to argue that the proceedings should be open to public view.

Haemmerle argued the public has a constitutional right to observe court proceedings.

“Public access to criminal trials permits the public to participate in and serve as a check upon the judicial process, an essential component in our structure of self-government,” Haemmerle wrote. “It should be evident that logic dictates that the public has a right to know why a defendant facing murder charges is not being tried, or when that defendant might be tried.”

The mental competency of Leon, 73, has been at issue in the court since he was accused of first-degree murder in the July shooting of Javier Zavala-Paniagua, 22, in the street in front of his home in Jerome. He also is charged with aggravated assault and aggravated battery in relation to the alleged shooting of his estranged wife, Maria Leon, 41, who was apparently living with Zavala-Paniagua at the time of the shootings.

The case has not proceeded to a preliminary hearing or grand jury because the court has yet to rule if Leon is mentally fit to stand trial.

On April 15, 5th District Judge Jason Walker had granted requests from the Times-News and KMVT-TV to video record and photograph Leon’s court appearance the following day. But “thereafter, without any explanation, the court ordered the case closed to the public, and reporters … removed from the courtroom,” Haemmerle wrote.

On April 17, Walker issued a written order that also sealed various documents, saying it was “to preserve the defendant’s right to a fair trial,” though he did not specify why closure was needed to do so. In previous hearings he had denied defense motions to close the case, saying it was important to keep it open.

“Prior to the order being issued there was no public hearing or fact-finding made by the court as to why the order was issued or why it was necessary to seal the documents,” Haemmerle wrote. “The last hearing on this matter was abruptly shut without the court explaining what aspect of the criminal case remains open, if any.

“The right to a fair trial is fundamental, significant and important,” Haemmerle wrote. “However, the court has not recognized or evaluated the public’s equally compelling right to access under the First Amendment. This right needs to be acknowledged and addressed. Only when the state’s interest is found to be more compelling can the court prevent the public’s right to access.”

Times-News Editor James G. Wright said the newspaper is acting as the public’s representative in asserting that sealing court files and closing proceedings runs counter to basic principles of American democracy.

“Any effort to wall off our courts from the public, even with the best of intentions, erodes our fundamental civil rights and undermines respect for the rule of law,” Wright said Friday. “The public cannot have confidence in the fairness and competence of its judicial system if it cannot see that system at work.”

While not a party in Friday’s filing, the Associated Press has agreed to help cover the cost of the legal challenge, Wright said.

Haemmerle asked for a hearing on the motions to be set for June 11.

Andrea Jackson may be reached at 208-735-3380 or ajackson@magicvalley.com

From the Times-News

From the Times-News

By Andrea Jackson
Times-News writer

Public documents were sealed from community sight this week in the murder case against Iranian refugee Majid Kolestani.

Kolestani, 43 – a man who identifies as a woman and also goes by the first name Nastaran – is accused of shooting 29-year-old Iranian refugee Ehsan Velayati Kababian to death in his car along Fifth Avenue East in Twin Falls on Aug. 25. Friends of the pair say possible motive is jealousy over a woman Kababian may have been romancing in Iran.

Twin Falls 5th District Court Judge Randy Stoker recently denied Kolestani’s requests to dismiss the case and another to change venue because of pretrial publicity.

Stoker on Tuesday sealed an unspecified motion and order. Last year he sealed four documents in September involving the preservation of evidence, court records show.

The move to seal mirrors others from recent serious criminal cases.

A Times-News request to view a sealed police affidavit regarding a rape reported outside Woody’s on April 16 was denied this week in Twin Falls 5th District Court.

In that case, Justin Wicklund, 24, is charged with rape, after he was arrested hours following the alleged incident unfolded outside Woody’s Bar and Grill.

Judge Howard Smyser sealed the “affidavit in support of warrant for arrest,” because it “contain(s) highly intimate facts or statements, the publication of which would be highly objectionable to a reasonable person,” according to court records.

Prosecutors asked Smyser to seal the rape case document, and on Tuesday he decided Wicklund’s lawyer, Joe Rockstahl, of Twin Falls, can get a copy for defending his client.

On April 16 in Jerome County, Judge Jason Walker shut the public out of a criminal hearing in a first-degree murder case without saying if 73-year-old Fortino Leon is mentally fit to stand trial or why he was sealing the hearing.

Fortino Leon, 73, is accused of first-degree murder in the July shooting of Javier Zavala-Paniagua, 22, in the street in front of his home in Jerome. He also is charged with aggravated assault and aggravated battery in relation to the shooting of his estranged wife, Maria Leon, 41, who was living with Zavala-Paniagua at the time.

On April 17 in an order filed with the Jerome County 5th District Court, Walker wrote that he sealed the hearing to protect Leon’s right to a fair trial, and continued Leon’s commitment with the Idaho Department of Correction for 180 days.

Prior proceedings related to Leon’s mental competency have been held in open court.

Any willful or intentional disclosure of a confidential court record may be treated as a contempt of court, according to Idaho judicial rules.

Andrea Jackson may be reached at ajackson@magicvalley.com or 208-735-3380.

From the Times-News

From the Times-News

By Andrea Jackson
Times-News writer

Fifth District Court Judge Jason Walker said Friday that he closed a status hearing on the commitment of an accused murderer “to preserve the defendant’s right to a fair trial,” even though prior proceedings related to the man’s mental competency have been held in open court during the 9-month-old criminal case.

Fortino Leon, 73, is accused of first-degree murder in the July shooting of Javier Zavala-Paniagua, 22, in the street in front of his home in Jerome. He also is charged with aggravated assault and aggravated battery in relation to the shooting of his estranged wife, Maria Leon, 41, who was living with Zavala-Paniagua at the time.

Walker on Thursday abruptly closed Leon’s status hearing – a day after granting media permission to place cameras in the courtroom – without saying why, or determining whether Leon was fit for trial.

On Friday, Walker signed an order saying Leon “continues to lack the capacity to assist in his own defense … It is unlikely that the defendant will be fit to proceed in the foreseeable future.”

That order stays proceedings for at least 180 days so the state can continue to monitor Leon.

“If at any time the Department of Health and Welfare determines the defendant is fit to proceed with trial it shall immediately notify the court and the matter shall be set for a hearing,” the judge’s order said. “If, after a hearing on the matter, the court agrees…and finds the conditions which justified the commitment to the department do not continue to exist, criminal proceedings may resume.”

Walker’s belated written order doesn’t say if he will also bar the public from the next scheduled hearing in the case, which is set for Oct. 15. Nor does it say how closing Thursday’s hearing preserved Leon’s rights. Leon’s mental status was discussed in open court in at least three previous hearings.

Leon’s mental fitness has been in question since at least November, when he was placed in the Idaho Department of Correction Secure Medical Program. Letters addressing Leon’s mental condition have been part of the public court file, and have been discussed by attorneys in at least two open court hearings that resulted in prior commitment extensions. Walker had previously rejected defense motions to close the case to the public. Thursday’s closure came in response to a motion from the prosecution.

“Judge Walker’s action is baffling, particularly in light of his previous strong statement that it is important that the public know the facts of this case,” said James G. Wright, editor of the Times-News. “We have asked our attorney to review the closure and we are considering our options in ensuring that the public isn’t shut out of future proceedings in this or any other murder case.”

Speaking on behalf of 5th Judicial District Administrative Judge Barry Wood, who is out of town and unavailable for comment, District Court Judge John Melanson of Rupert said judges don’t want to the public to think they’re acting in secret.

“The courts are sensitive to the need to keep hearings open,” Melanson said. “I think a judge has it in his power to close a proceeding when he determines it should be done.”

Andrea Jackson may be reached at 208-735-3380 or ajackson@magicvalley.com

From the Times-News

From the Times-News

Unusual move comes without warning or explanation

By Andrea Jackson
Times-News writer

JEROME – Fifth District Court Judge Jason Walker Thursday shut the public out of a criminal hearing in a first-degree murder case without saying if 73-year-old Fortino Leon is mentally fit to stand trial or why he was sealing the case.

Leon’s mental fitness has been in question since at least November, when he was placed in the Idaho Department of Correction Secure Medical Program.

He is accused of first-degree murder for the July shooting of Javier Zavala-Paniagua, 22, outside a Jerome residence at 221 Fifth Ave. E. Leon is also charged with aggravated assault and aggravated battery for shooting his estranged wife, Maria Leon, 41.

Neighbors have said Maria Leon was living with Zavala-Paniagua for at a least a month before the shooting unfolded in front of their home on a sunny day, along a quiet residential street, in the presence of children riding on scooters.

On Thursday, just a day after granting media requests to allow cameras in the courtroom, Walker without explanation closed the hearing and asked reporters to leave the courtroom. He said only that he was granting a motion from prosecutors “to seal the proceedings.” There was no discussion of that motion in the open courtroom.

Walker allowed lawyers in the case, witnesses, and Maria Leon to remain in court.

Sealing a murder proceeding is unusual, even when issues involve the mental health of the accused, local attorneys familiar with such cases said Thursday. Judges commonly weigh matters in open court, and close proceedings only after ruling the defendant is not competent to stand trial. It’s unclear why Walker, a former Minidoka County prosecutor appointed to the bench in Camas County in 2007, closed his courtroom at this time, or what might come next for Leon.

A specific motion from the state to seal proceedings has not been filed, nor is there an order of involuntary commitment, according to the Idaho State Judiciary online case repository on Thursday. Leon’s paper case file was unavailable for public inspection, but an application for involuntary commitment filed Tuesday contains the state’s motion, according to the clerk’s office in Jerome.

In closing the courtroom, Walker apologized to reporters, saying, “So I’ve done what I hate to do to the press, and that is, I told you, you could be here, only to tell you, you can’t be here.” He said he granted the state’s motion “because of the nature of the proceedings … And the importance of the issues that I have to deal with today.”

He said he couldn’t tell the public what might happen at Thursday’s hearing.

“What’s going to take place … I’m afraid I can’t even share with you that at this point,” he said.

The Jerome County prosecutor on the case, Paul Kroeger would not say why he asked Walker to seal proceedings.

It’s not the first time, though, that Walker has been asked to bar the public from hearings in this case. But in September the judge denied a defense request to close Leon’s preliminary hearing, saying that, “It’s important for the public to understand what’s going on in this case.”

At that hearing, Walker sealed a psychological report at the request of prosecutors and the defense. Sealing reports of that nature is not uncommon.

Walker extended Leon’s commitment in December and then again February, after the IDOC detailed Leon’s mental condition in letters to the court. Walker previously decided to keep those IDOC letters about Leon open for public view.

On Dec. 10, the IDOC said Leon could not assist in his own defense, but it added “if he is provided with appropriate interventions from attending Department of Correction clinical staff Mr. Leon may be re-evaluated for competency to assist in his own defense.”

A Jan. 29 IDOC letter filed in court said Leon “has exhibited some progress” but still lacked the ability to participate in his own defense.

Leon claimed memory problems in July during a first court appearance, requesting medication and saying “I don’t have a good memory.”

From the Times-News

From the Idaho Falls Post Register
April 14, 2009

A lawyer for Thana Singarajah said that would help his case.

By HEATHER WELLS

An attorney for the former director of the Idaho Falls-based Family
Care Center believes notes from a Post Register reporter could help
his client’s case.

In a court hearing Monday, Michael Gaffney, Thana Singarajah’s
attorney, told a judge he wanted Corey Taule to hand over any
documents compiled during the course of his coverage of Singarajah’s
efforts to build Pearl House, a group home for troubled youths.

The story began five years ago when Singarajah, then the center’s
executive director, went public with his vision for an $8 million
facility on Hitt Road.

He envisioned a facility with 65 beds, office space for Family Care
Center staff, charter and vocational schools and a skate park.

But the project has had difficulties. Last year, the Idaho Department
of Commerce pulled a $650,000 grant intended to help build Pearl House
because the state agency had lost confidence in the project.

The Family Care Center board on March 10, 2008, stripped Singarajah of
his executive director duties “for a variety of reasons, including his
refusal to provide requested information to the Board,” according to
court documents.

The Post Register has written 11 stories about Singarajah in the past
year and a half.

In November, Singarajah sued Family Care Center and two members of its
board of directors, President Ron Carlson and Vice President Mike
Stamper, for defamation, invasion of privacy, breach of contract and
lost wages.

On Jan. 2, Family Care Center answered that suit. It denied all
charges and asked the court to dismiss Singarajah’s suit. Finally, the
center filed a counterclaim that details several counts of alleged
misconduct unearthed by a forensic audit that the center’s board of
directors ordered last year.

At Monday’s hearing, Gaffney was particularly interested in any
documents involving statements from Carlson that appeared in a May
article by Taule. The statements were defamatory, Gaffney said.

“I think the argument is fairly straightforward,” he said.

The Post Register’s attorney, Steve Wright, disagreed with Gaffney’s request.

“Clearly our key point is the Constitution protects the media from
being dragged into this type of dispute,” he said.

The solution is to ask the individuals about the statements attributed
to them, Wright said, and the Post Register should not be used as an
investigative arm in a case.

The judge said he’d take the motion under advisement.

From the Idaho Falls Post Register

BOISE – Idaho Gov. Butch Otter has signed into law legislation revamping and strengthening Idaho’s Open Meeting Law.

The bill, SB 1142, sponsored by Idaho Attorney General Lawrence Wasden, passed the Senate unanimously and the House on a 59-10 vote. It was endorsed by an array of media, civic and local government groups, including IDOG.

Work on the bill began after an Idaho Supreme Court decision in 2007 made parts of the law near-impossible to enforce. The bill restores the law’s enforceability, eliminates incentives for ignorance of the law created by the Supreme Court decision, and replaces them with incentives for compliance. It also narrows the scope of several of the law’s exemptions, sets new fines, and makes other changes.

The court decision, State of Idaho vs. Yzaguirre, gave a new interpretation to the word “knowingly” in the existing law, essentially holding that if a public official didn’t know about or misunderstood the Idaho open meeting law, he or she couldn’t “knowingly” violate it. This interpretation came into play when an open meeting complaint was filed against the state Board of Education in 2008, and Wasden, after an extensive investigation, concluded that while the board may have violated the law, he couldn’t prove that they’d done so “knowingly.”

While many states have “knowingly” language in their Open Meeting Laws, in most cases it is a trigger for more severe penalties than simple violations that don’t carry that modifer. Florida’s law, for example, has a two-tiered approach in which violations are punishable by fines of up to $500, but knowing violations are subject to misdemeanor criminal penalties.

Idaho already had a two-tiered system for violations; in the current law, first-time violations are punishable by a fine of up to $150, while repeat violations are subject to a fine of up to $300. SB 1142 sets out a new two-tiered violation system, to allow all violations to be sanctioned, but to set a very low civil fine of up to $50 for the first-time or simple violation. The more egregious, intentional or repeated violations would bring civil fines of up to $500.

You can read the full bill here: https://www.legislature.idaho.gov/legislation/2009/S1142.htm

From the Twin Falls Times-News

By Jared S. Hopkins
Times-News writer

BOISE – A bill that would put teeth in Idaho’s Open Meeting Law is on its way for Gov. C.L. “Butch” Otter’s signature, despite opposition Wednesday from a handful of House members.

Supporters say the bill, which passed 59-10, will make the law clearer for public officials to understand while strengthening the safeguards against violations. It already passed the Senate without a dissenting vote.

The revisions, the first in 17 years, were crafted by Idaho Secretary of State Ben Ysursa, Attorney General Lawrence Wasden and media groups.

“This legislation provides the teeth,” said Rep. Erik Simpson, R-Idaho Falls.

First adopted in 1974, the Idaho Open Meeting Law guarantees all citizens the right to observe and participate in meetings of public entities.

The bill now on its way to Otter clarifies some aspects of the law and spells out stiffer penalties, including:

• Fines of up to $50 for governmental bodies that violate the law, regardless of intent.
• A civil penalty of as much as $500 for public bodies that knowingly violate the law.
• A civil penalty of as much as $500 for those who violate the law twice within 12 months.
• The start of an executive session – a closed-door meeting – must be cited in meeting minutes. It would also require a governmental agency to list the specific reason for the closed-door meeting. Currently, agencies must only list a general description.

House members who opposed the bill said they didn’t mind a stronger open meetings law, but were concerned about a provision that allows meeting agendas to be changed during the meeting. Opposition came despite the fact that the bill would require a motion to amend the agenda, which currently is not required.

“I don’t think they ought to monkey with it after they get started. One man’s good faith is another man’s bad faith so I don’t accept that,” Rep. Lenore Barrett, R-Challis, said. “If the press wants to come to my local meeting and sit there and write and do what they want to do and if they want to follow me home and check on the color of my pajamas, I’m fine with that.”

The 35-year-old open meeting law has surfaced in recent months in the Magic Valley.

The city of Twin Falls is currently streaming all council and advisory committee meetings through its Web site, as well as increasing the number of meetings broadcast on the city’s public-access cable channel, Channel 17 on Cable One.

Meanwhile, in Burley, the Idaho Attorney General’s Office determined that the Burley council had not violated open meeting law when it awarded a bid for a sewer line. And Burley Mayor Jon Anderson has removed City Councilman Jay Lenkersdorfer from committee assignments, saying, in part, that he has violated the open meeting law by calling unannounced sub-committee meetings.

“It is good legislation,” said Rep. Stephen Hartgen, R-Twin Falls, who is a former newspaper publisher. “The Attorney General’s Office has struggled for many years to advise local agencies of government.”

From the Twin Falls Times-News

Editorial from the Idaho Mountain Express

Blaine County Prosecutor Jim Thomas and Twin Falls County Prosecutor Grant Loebs owe the public an explanation as to why they are automatically disqualifying Fifth District Judge Robert Elgee from hearing any and all felony criminal cases that originate in their counties.

While disqualifying a judge automatically—without a stated reason—is allowed under court rules established by the state of Idaho, it is unusual for prosecutors to disqualify a particular judge in every felony case without exception.

It is more unusual that Blaine’s prosecutor sought out other prosecutors in the 5th Judicial District to lay out his reasons for the blanket disqualification—but refuses to explain to the public why the judge should not be allowed to do his job.

The fact that Twin Falls County Prosecutor Grant Loebs joined Thomas in disqualifying Judge Elgee from felony cases cries out for an explanation.

Thomas refuses to discuss the matter in public beyond saying that he won’t discuss it in order to protect the judicial system from undue criticism.

Loebs also refuses to discuss his reasons in public and rightly points out that the automatic disqualification rule says prosecutors don’t have to.

Judge Elgee says he is prohibited by judicial ethical canons from discussing it.

The Idaho Supreme Court says only that it will not suspend the rule allowing automatic disqualification in the 5th District—despite the fact that other states have outlawed the practice because of the potential for prosecutors and law firms to “punish” judges that consistently rule against them.

All of the zipped lips leave the public in the dark about how 5th District Court is operating—and that’s not right.

The public deserves an explanation. After all, it’s the public that employs both the prosecutors and the judge—all elected officials—who are at odds.

Why do the prosecutors believe the judge should be disqualified from hearing all felony cases—not just some?

On what matter of law do the prosecutors and judge disagree so mightily as to justify blanket disqualification? Is it a matter of law that needs clarification by the courts or by the Idaho Legislature?

How do the prosecutors justify the increased costs of travel to bring outside judges in to replace Judge Elgee in felony cases?

Why and how did this judicial warfare begin and why did it boil out of Blaine County and into Twin Falls County?

If these questions are left unanswered, the public can only surmise what may be going on—and wild guesses are usually more harmful than the truth.

Editorial from the Idaho Mountain Express

From the Idaho Statesman

Advocates say the bill’s requirements are easy for officials to interpret.
BY KATHLEEN KRELLER – kkreller@idahostatesman.com
Published: 04/02/09

Idaho’s open meetings law just got a little tougher under Senate Bill 1142, which passed the House on a 59-10 vote on Wednesday and now goes to Gov. Butch Otter.

Under the bill, boards, councils and commissions could face fines of $50 if they make a simple mistake and close a meeting or alter an agenda without proper action. They could correct a mistake afterward to avoid the fine.

An elected official now must “knowingly” violate the Open Meeting Law to face civil penalties – a high legal hurdle. The bill eliminates the requirement that the first offense to be a “knowing” violation but lowers the fine, currently $150. It raises the fine for subsequent offenses to $500 from $300 for officials shown to be “knowing” violators.

A 2007 Idaho Supreme Court ruling that the Ada County Commission had not “knowingly” violated open meeting rules when they gathered behind closed doors to discuss a proposed housing project spurred open government groups to change the law.

“What we are doing is adding to protections,” said Rep. Lynn Luker, R-Boise.

Advocates also say the bill puts its requirements in clear, laymen’s terms for small boards and commissions that can’t afford attorneys to interpret the law.

Opponents, like Rep. Judy Boyle, R-Midvale, argued that a provision in the bill allows public commissions and boards to make last minute changes to agendas, which doesn’t serve the public.

“I think the press needs to be wherever they want to be when they want to be, except in our caucus,” said Rep. Lenore Hardy Barrett, R-Challis. “If they want to follow me home after the meeting and check on the color of my pajamas, I’m fine with that. … Our concern is our county commissioners post the agenda on the courthouse door.”

Kathleen Kreller; 377-6418

From the Idaho Statesman

From the Idaho Statesman

Eight years after opening party caucuses, Democrats meet privately on fuel taxes.
BY DAN POPKEY – dpopkey@idahostatesman.com
Published: 04/01/09

A Statesman reporter was denied entry to the brief closed caucus held Tuesday, but Caucus Chairman Bill Killen later apologized and said the party’s open-door policy has not changed.

Killen, D-Boise, said he was unaware of the reporter’s request to observe the caucus. “I’m sorry you got locked out,” Killen told the reporter. “For what it’s worth, the vote was to stick to the caucus position.”

Democrats asked for a five-minute recess just before the House was to vote on an amendment to increase the fuel tax by 4 cents a gallon, up from 2 cents in the original bill. The 18 Democrats entered a room just off the floor and closed the door.

Upon a knock by the reporter, Rep. Phylis King, D-Boise, opened the door and was asked, “Is this caucus open?”

“No,” replied King, shutting the door. The meeting broke up within minutes and Democrats returned to the floor to reaffirm their opposition to fuel-tax increases.

Just three of 18 Democrats supported the 4-cent increase, which was widely defeated. Democrats oppose GOP Gov. Butch Otter’s fuel-tax increase proposals because of the recession and their objection to raising transportation taxes while schools are suffering budget cuts.

In 2001, as majority Republicans were under fire for closed caucus meetings, Democrats opened their doors. Typically, party caucuses are announced on the floor and held during more extended recesses.

Dan Popkey: 377-6438

From the Idaho Statesman