NORMAN — The Oklahoma Highway Patrol has asked a district judge to empty the courtroom if testimony comes up regarding the agency’s pursuit policy in a felony murder trial involving a state trooper’s death — another instance in which the agency has vigorously protected that document.
A Tulsa World reporter had to leave an open public court hearing Monday afternoon in Cleveland County that was convened for just that — to argue how protected OHP’s pursuit policy may be once the trial arrives. An attorney for the Highway Patrol objected to anyone being present during an OHP major’s testimony and arguments in the courtroom who wasn’t a trooper or involved in the case.
District Judge Jeff Virgin asked that the Tulsa World reporter exit the courtroom. The reporter complied, later filing a written objection with the judge regarding closure of the proceeding and the motion to remove the public from portions of the pending trial.
Virgin is taking the matter into consideration, with another court hearing scheduled for Oct. 1.
D’Angelo Burgess is charged with felony first-degree murder in OHP Lt. Heath Meyer’s death in July 2017. Meyer succumbed to critical injuries 10 days after a pursuing trooper’s cruiser struck Meyer at a roadblock on Interstate 35 in Moore as the Highway Patrol chased a vehicle that fled a traffic stop for following too closely.
The suspect made it through the road block and continued fleeing. The two pursuing troopers’ cruisers collided at the roadblock, one of which veered off and hit Meyer as Meyer attempted to remove a set of stop sticks to let the troopers through, according to OHP documents previously obtained by the Tulsa World in an open records request of the agency.
An Oklahoma Department of Public Safety motion contends disclosure of its pursuit policy would harm troopers and the public because certain provisions may encourage a suspect to “greatly increase their speed” or “flee into oncoming lanes creating a safety hazard.” A future suspect also could “reasonably deduce” tactical actions, the motion states.
The motion would require the pursuit policy be filed under seal and only available to personnel directly involved with trying the case.
But the request goes beyond a sealed document:
“(A)ny time such material is shown, read or described in open court, whether during examination, argument, or otherwise, the court room will be cleared so no person other than the Judge, court personnel, attorneys, Defendant, witness testifying, and jurors are present.”
The Department of Public Safety oversees the Highway Patrol.
A state open records law exemption specific only to DPS allows the Highway Patrol to keep secret items considered to be of a “tactical nature.” DPS contends the pursuit policy is a tactical document that should be kept from public scrutiny.
Joseph Claro, acting deputy general counsel for DPS, after the hearing said it’s not uncommon to make this sort of request in a criminal proceeding in which confidential material is needed for a case. Confidential information becomes “open to the world” if it is submitted as evidence in a trial, he said.
“The only way that you can protect yourself is with a protective order,” Claro said. “The protective order is good for the written document that you file in the court, but as to the transcript itself, it can be transcribed or someone sitting in the court making notes of that confidential matter can defeat the purpose of the confidentiality.
“And that’s what the judge is going to determine, whether or not this meets the standard of being a tactical policy that is entitled to that type of confidentiality.”
Burgess’ defense attorneys in August filed a motion to compel DPS to provide its pursuit policy as part of the discovery process in which the defense and prosecution obtain and share potential evidence.
James Radford, an attorney for the Oklahoma Indigent Defense System in Cleveland County, wrote that DPS “willfully and contumaciously refused to produce” its pursuit policy.
In a written response, Claro stated that within a half month’s time in late May both the agency’s general counsel and deputy general counsel resigned. About 30 days later the “supervisory and day-to-day operations person” over the unit responsible for collecting and answering information requested via open records, subpoenas and discovery also resigned.
That left “the vacancy unfilled and the ability of the Unit to fulfill its mission severely curtailed and with open records requests, subpoenas and discovery requests being delayed and sometimes misplaced,” Claro wrote. He said that upon finding the subpoena he requested additional time to draw up a motion with terms of a protective order.
“The attorneys have communicated by telephone and email and, though seemingly close to an agreement, have been unable to reach an agreement on an agreed order, the main issue being the provision providing for the partial clearing of the courtroom,” Claro wrote.
Claro noted the protective order request may prove moot.
Prosecutors have filed a motion to prohibit statements that infer OHP’s pursuit policies or deployment of stop sticks are “to blame for Lt. Heath Meyer’s death.” Claro said a ruling favorable to the prosecution would negate the need for an order protecting the pursuit policy.
Burgess’ defense team isn’t the first to encounter issues in trying to obtain a copy of OHP’s pursuit policy and procedures. The Tulsa World has had its requests for the document denied by the agency.
In a 14-month span, state troopers led seven vehicle chases that resulted in eight deaths — two were uninvolved motorists — with the latest one being Lt. Meyer’s death. No discipline was handed down in any of the seven pursuits as all troopers’ actions were deemed by DPS to be OK and within its policy and procedures.
Other agencies, such as the Tulsa Police Department, have their vehicular pursuit policies available online for public consumption. The Tulsa County Sheriff’s Office previously has released its chase protocols to the Tulsa World.
A brief snippet of a previous version of the Highway Patrol’s policy was revealed in 2010 as part of an Oklahoma Supreme Court decision that clarified law enforcement officers can be tried in civil court for liability during a vehicular chase.
However, appendices were sealed by the state’s high court because of “sensitive material,” which likely included OHP’s pursuit policy in effect at the time of the fatal crash in 2005.
The civil lawsuit — State ex rel. Oklahoma Department of Pubic Safety v. Gurich — was filed by the widow of a passenger in an uninvolved vehicle that was struck by a motorist fleeing at a high rate of speed from a state trooper. The trooper had attempted to pull over the car to conduct a field interview with its driver regarding a stolen SUV the car appeared to be following, according to the facts of the case.
“… any decision to pursue or continue a pursuit involves striking a balance between law enforcement effectiveness and the risk of injury to the public,” the Oklahoma Supreme Court wrote in its decision. “That balancing is reflected in the pursuit policy of the OHP which acknowledges that ‘[t]he decision to terminate a pursuit may be the most rational means of preserving the lives and property of … the public’ and that a ‘[p]ursuit shall be immediately terminated [when] the danger posed by continued pursuit to the public … is greater than the value of apprehending the suspect(s).’”