911 tapes are public record, judge rules

BRISTOL -- The public has a right to hear the 911 call made by a mother accused of killing her son, a Virginia judge ruled.
"The press needs to know," retired Circuit Judge Robert Stump said. "The 911 tape is a public record."
Authorities said Andrea Jennings Petrosky, 39, kept her 6-year-old son, Garrett, home from kindergarten last April, choked him until he blacked out and then held him underwater in the bathtub. She called 911 a few minutes later and confessed, police said.
The Bristol Herald Courier asked for a copy of the 911 tape under the state Freedom of Information Act. The city refused, and the newspaper filed a lawsuit.
The case went to trial April 13, nearly a year later.
"We’re obviously pleased with Judge Stump’s ruling," said Steve Kaylor, the newspaper’s editor. "We look forward to getting the tape."
"The city didn’t have a big dog in this fight," said Walt Bressler, city attorney. "We’ve always taken the position that anything that might be evidence in a criminal case, we don’t release. That was not the court’s reading of the statute."
He said the case was the first public records lawsuit he’s ever lost.
The city won’t pay any fines or court costs under the judge’s ruling. He found no evidence that officials knowingly violated the law.
"They were trying to cooperate with law enforcement, which they should do," he said. "I’m an old softie. I’d like to see the city and the Bristol Herald Courier live amicably with each other."
City Manager Paul Spangler turned down the newspaper’s request, writing in a letter that releasing the tape "would be inappropriate as it is evidence in a pending trial."
That explanation didn’t satisfy the newspaper or the judge.
Authorities said they worried that making the tape public would wipe out any chance of putting together a fair jury for Petrosky’s trial, set for Aug. 7.
The mother, charged with capital murder, remains in jail and could face the death penalty if convicted.
"Once those kinds of things get out to the public, people are going to immediately form an opinion," Commonwealth’s Attorney Jerry Wolfe testified. "If they go ahead and use it before we have a trial, that’s going to make it difficult to find a jury anywhere. I think that tape was evidence from the moment she spoke it."
"Was it not also a public record from the time it was made?" asked Craig Merritt, the newspaper’s lawyer.
"That’s what we’re trying to decide here," Wolfe said.
Prosecutors also claimed they didn’t want to give out information on an underage victim.
Spangler, the city manager, testified that he relied on advice from prosecutors, relayed through Police Chief Bill Price, in withholding the tape and didn’t talk with the city attorney about it. He said the city doesn’t have a written policy on public records requests.
"It does not exist on paper," he said. "It exists in my direction that I give to my department heads."
"So it exists as something that you carry around in your head and tell people how to execute it?" Merritt asked.
"The only policy I have, sir, is that all information requests come to my office," Spangler said. "That’s the policy of the city."
The judge said the tape might be evidence but remains a public record, whether or not it would prejudice a jury pool.
"The only harm I can see is tainting a jury, and my view is that a judge can always find a fair and impartial jury," he said. "There are ways, methods, and procedures for that."
He said that’s a job for judges, prosecutors and defense lawyers to worry about, not the press.
"I’m looking at the bottom line here," the judge said. "The Freedom of Information Act is a sunshine law that says the public should know."
By Matt Lakin
Bristol Herald Courier