Why Was the Ukwuachu Indictment Sealed?

(UPDATED Feb. 11 to add Twitter conversation with Paula Lavigne, author of the OTL piece on Baylor)

Since the August conviction of Sam Ukwuachu for sexual assault, much has been written about Baylor and its response to investigating sexual assault, especially those involving athletes.

But a question has remained since August 2015, when Ukwuachu was convicted and then later sentenced: Why was crucial public information regarding Ukwuachu’s indictment withheld in June 2014? Who withheld it? Why?

More important, why is nobody asking why?

He was indicted for the crime, whose victim was an unidentified Baylor athlete, on June 25, 2014.  The list of indictments for that date does not include his name among the 100-plus released.

What happened was that Ukwuachu apparently was indicted first, then arrested and charged via a “direct indictment,” which shields the suspect and others from the open records of a pre-indictment arrest report.  The name was then redacted from the indictment list released to the public.

According to the attorneys that I talked to, a direct indictment, or any such situation where the case is sealed, is usually used when a juvenile or someone else involved in the case (usually the victim) needs shielding for their own protection.

Under what logic could that be applied to Ukwuachu’s case?  Concern for the victim?  The other sexual assault cases also involved victims, but the DA’s office did not seem to show the same reticence in publishing the names of those defendants.

And anyway, this is all speculation without a specific arrest report.  Remember that the information gap existed between the unreported indictment and the week before the trial began.  The arrest, never reported, falls into the same void.

UPDATE: After reading Paula Lavigne’s Outside the Lines report on Baylor’s response to sexual assault cases involving athletes, I linked her to this article and asked her if she had any idea why the Ukwuachu indictment had been sealed.  She replied via Twitter:

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I do appreciate Lavigne’s taking the time to reply, but I don’t see the connection between an unreported indictment/arrest and a gag order.  A gag order is a frequent ruling in a high-profile trial.  But it relates to behavior outside of the court, not to the release of arrest information.

If the judge did want to limit public comments on the case, why not release the indictment/arrest (as is typically done) and simultaneously issue a gag order to all participants, as the judge did when Ukwuachu’s trial actually began?  Wouldn’t that accomplish the same goal, while providing the Waco and Baylor communities with important information?

Still, with the indictment information not released, as she pointed out, the Waco Tribune-Herald would not be in a position to know about the indictment:

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(NOTE: The rest of these paragraphs were part of the original post.)

The on-campus student affairs office investigation had apparently been closed by the time of the indictment.  The various reports do not give specific dates on that investigation, but a university representative said they try to complete them within 60 days of reporting.

Were Baylor student affairs personnel aware of Ukuwachu’s indictment?  Would this provide the “new information” that allows a university to reopen a disciplinary case?

The broader issue here involves the openness of the legal system.  The Supreme Court has defended the open courts system — setting some sky-high hurdles for closing a trial.  That’s not a service to the media; it’s a right of the people.

Always, but especially these days, Americans need to know what is going on with their legal system.  When information is withheld, there needs to be an excellent reason for it.  Otherwise citizens might lose faith in the fairness of their legal system.

Now that they know, however, the media need to treat this more seriously.  It involves the withholding of sexual assault-related information to the Baylor and Waco community — to young women, to their parents.  It hindered the media from doing their job.

This editorial from the Waco Tribune-Herald asks some important, direct questions, but seems to breeze past the issue of the sealed indictment with little acknowledgement, as if it were a mundane legal procedure instead of an ethical decision that deserves scrutiny.

Perhaps there is a good reason for sealing the indictment and not disclosing the arrest, and if that reason is offered, I will share it.  (Update: Seven months later, a satisfactory reason still has not been shared.)  For now, it looks like the same cozy relationship between police and college football team that has been cited and criticized on other campuses — though for an issue like sexual assault, it is particularly unthinkable that any college or its surrounding community would tolerate the strategy used by the Waco police and DA.

Even more frustrating is when no one cares enough to ask DA Abel Reyna or Assistant DA LaBorde.

Baylor has faced and has tried to answer a lot of questions following the Ukwuachu and Tevin Elliott cases.

Let’s not ignore questions about another question: a published indictment list that omitted the name of an accused felon.

 

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The Watchdog vs. The (Baylor) Bear

The Texas Monthly expose on Baylor and Sam Ukwuachu will produce enough troubling questions — for head coach Art Briles and Baylor associate dean Bethany McCraw in particular.

The story, or lack of it, should also trouble sports journalists.  According to reports, the assault happened in October 2013.  The Waco Police Department did not press charges and sent the case to the district attorney for evaluation.  In March 2014, the assistant DA Hilary Laborde decided to move ahead.  On June 25, 2014, a grand jury indicted Ukwuachu, and he was arrested.

This Deadspin article, great work by Diana Moskovitz, provides helpful details, including a copy of the true bill of indictment returned by the grand jury.

This is where things begin to get murky.

As Moskovitz points out, prosecutors’ choice to go the grand jury route does invite questions, because a grand jury process is, by nature and law, more secretive than a public arrest.  When an athlete, or any suspect, is arrested, the accompanying mugshots, and sometimes even “perp walks,” draw attention.

Still, in McLennan County, once someone is indicted, it is publicized.  Supposedly.

The Waco Tribune-Herald posts indictments twice a month to its website, and those indictments remain available for public viewing.  The report of June 25, 2014, indictments, when Ukwuachu was indicted, mentions more than 100 names, and five specifically mention some form of sexual abuse.

Ukwuachu’s name does not appear in this list. Why not? Was the name redacted from the list before it was given to the Waco newspaper?

According to Texas Monthly, when the requested information on Ukwuachu’s indictment and arrest, the received “a letter declaring that all information outside of the Incident Report following Doe’s visit to Hillcrest Hospital the day after her encounter with Ukwuachu was exempt from the law requiring disclosure.”

Still, if that’s the case, under what judgment was Ukwuachu’s name deleted from a public list, and not the rest?  If it’s exempt from “the law requiring disclosure,” why publicize indictments at all?  The 100-plus folks whose arrests were publicized would wish they got the same break as Ukuwuachu.

True, McLennan County DA Abelino Reyna is a 1997 graduate of Baylor Law School. With no specific response on his office’s part, however, the question remains, and is troubling.

It should also be mentioned that the prosecuting DA, LaBorde, also went to Baylor, but that did not stop her from investigating and then prosecuting Ukwuachu

I have reached out to the Waco Tribune-Herald via e-mail.  The McLennan County DA’s office (no e-mail listed) has refused all interview requests.

The first report appeared in the Tribune-Herald on Aug. 5, more than 13 months after the indictments were handed down.  The lag time invites questions, particularly related to the local newspaper’s function as a watchdog.

As any competent sports writer, college or pro, will tell you, the good reporters know how to uncover such information. Whether through strategic Web searches or well-placed sources, they know when players are arrested amazingly soon after it happens and can guide their readers through the court process.

Court-related documents are available online through databases like Scribd, as Moskovitz demonstrated in her article.

But before casting too much blame on the newspaper, realize that no reporter’s system can do everything, and an insular community like Waco is a prime culture to thwart such information gathering.  For whatever reason, the public did not learn of the announcement until twelve days before the trial itself began.

According to the Deadspin article, Judge Matt Johnson did issue a gag order, but that did not happen until Aug. 7 of this year, shortly before the trial began.

As the handling of the Ukwuachu case is discussed, concern will be directed at Baylor personnel, who admitted a player with problems at his previous school.  Dan Wolken rightly took Briles to task in a USA Today column for putting Ukwuachu’s victim, and every female at Baylor, at risk by allowing him to transfer in.

This concern relates closely to constitutional guarantees for open trials.  This right belongs not to the media, but to the public.  Community members have a right to know what is going on in matters that relate to their public safety, and it is the news media’s duty to provide that information.

When information is withheld from the public, as it was in the list of indictments published on the WacoTrib.com website, the system has failed, and citizens deserve to know how and why.

Is Disclosing Medical Records an Unhealthy Reporting Method?

First published on al.com.  Click here.

Note: This column includes implied obscenity in a tweet presented later in the article.

To anyone who doesn’t know, ESPN NFL reporter Adam Schefter caused quite the ethical dust-up when he ran a tweet showing Jason Pierre-Paul’s medical records.

To quickly dismiss one objection: no, Schefter did not break the law.  He did not violate the Health Insurance Portability and Accountability Act (“HIPAA”) by showing it.  The medical professional who leaked the info to Schefter did.

Schefter is not in legal hot water for disclosing information, even if someone else obtained illegally.  The Supreme Court decided that in Bartnicki v. Vopper, where a radio station played illegally wiretapped conversation between teachers union officials during tense negotiations in Wilkes Barre, Pa.

The court found “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”  Schefter operates under the same shield.

That might sound like the equivalent of accepting stolen property and getting away with it, but the Supreme Court treats news-related information differently.

But law does not equal ethics.  The question is, did Schefter violate journalistic ethics here?  As with many such questions, the answer is determined by where you stand on ethics.  There is, however, another issue here, a constant with ESPN: ethical transparency.

Many argue that Schefter should have declined to show Pierre-Paul’s medical records and merely reported the information, anonymously sourced.  Showing an individual’s private medical information crossed a line, to them.

What is troubling to me — and always has troubled me — is that ESPN ignored its commitment, as a news media organization, to be transparent about this ethical decision.  I watched Schefter’s live report on ESPN SportsCenter.  It was all news, zero reflection.

In its September 2014 revision to its code of ethics, less than a year ago, the Society of Professional Journalists added the words “and transparent” to its fourth major standard, “be accountable.”

The resulting exhortation, “Be Accountable and Transparent,” includes the following sentences of explanation and application: “Ethical journalism means taking responsibility for one’s work and explaining one’s decisions to the public. … Explain ethical choices and processes to audiences. Encourage a civil dialogue with the public about journalistic practices, coverage and news content.”

As I write this blog, ESPN has not done this and certainly did not choose to do this early in its reporting.  It could have been handled so simply — with two or three sentences of explanation by Schefter.  But for whatever reason, Schefter and his producers decided not to take the time, even with the existence of ethical disagreement within the profession and the audience.

I wrote about this in al.com a couple of years ago — regarding Joe Schad’s reporting of alleged autograph selling by Johnny Manziel.  It is sad to see that apparently nothing has changed.

Don’t expect to hear from ESPN on this through its ombudsman blog.  The network has not updated the blog since Dec. 3, 2014, when Robert Lipsyte ended an excellent stint.  It is a sad, and telling, omission.

So where does it go from here? Nowhere?  Maybe not.

I see another layer to this debate, and it relates to Schefter’s relationship with his anonymous sources within the league.  Note the following tweet by former Steeler James Harrison:

Apologies for Harrison’s language, but it does raise the question: How will Schefter’s sources within the league respond to this?  One reason a journalist never breaks a pledge to an anonymous source, even risking imprisonment, is because of the damage it would cause to other source relationships, and these are an investigative journalist’s lifeblood.

It will be interesting to see if Schefter gets any pushback from his sources — players, agents or team officials — because of this.  Players might punish him for damaging an unsigned colleague’s negotiating power.  Agents and team officials might be more likely to look the other way.

All of these considerations weigh in to a serious ethical discussion in a matter like this.  And as the SPJ code encourages, and ESPN once again ignored, it’s best to include your audience in that ethical discussion.

John Carvalho is an associate professor of journalism at Auburn University.  A former sports journalist himself, he discusses sports media issues at @John_P_Carvalho.