When is the investigative file in an unsolved criminal case open to the public? The State of Arkansas is taking the position that the file is never open, not even for the family of the murder victim, and that's outrageous.
That's the situation in the case of Francis Ruby Stapleton, who was murdered near her Searcy home on Oct. 8, 1963 -- almost 51 years ago. No one has ever been charged in the case, and yet the Arkansas State Police contends that it's still "open and ongoing," thus not subject to disclosure.
The Arkansas Democrat-Gazette reported Thursday on a hearing before Pulaski County Judge Mackie Pierce after Stapleton's granddaughter filed a Freedom of Information lawsuit against the State Police. The judge said investigators must prove to him that the investigation is "open and ongoing."
If so, it must be the quietest murder investigation ever. Except for that Thursday story no major search engine turns up any mention of Ruby Stapleton's murder. The Searcy Citizen's Web site shows only one -- a 2005 story saying that her case was to be mentioned on a CNN program spotlighting unsolved murder cases.
Of course, there was no Internet in 1963, and newspapers didn't start digital, searchable archives until the 1990s.
Nevertheless, Assistant Attorney General Jennifer Merritt, arguing for the State Police in a motion to dismiss, said the case is "open and ongoing," therefore falls under an exemption to the Arkansas FOIA.
She presented a sworn statement from Gregory Downs, general counsel for the State Police, who said the case file has not been administratively closed and is assigned to the Special Investigations Unit.
"Disclosure of the contents of the Stapleton case file would hamper ASP's ability to investigate this crime, which would be contrary to the public interest," the Downs statement said.
That's a pitiful argument for denying access to the victim's family. If the State Police is still following leads after more than 50 years, where is the progress? Why can the family not review the case file to see what, if anything, is being done to bring justice to Ruby Stapleton?
Sometimes our government simply makes no sense.
Attorneys for Stapleton's granddaughter pointed out that the family is not asking to share the file with the rest of the world, just to review it.
The State Police position is even more curious because some Stapleton family members had been allowed to see the file in 1993.
My own family had a similar experience. My sister, Linda Edwards, was murdered in 1976 in Hot Springs, where she was a Garland County Sheriff's Department dispatcher, and the case remains unsolved. Therefore, it's "open and ongoing" by the State Police definition since there is no statute of limitations on murder.
Her remains weren't found for more than six months -- in another county, another court jurisdiction. At one point a suspect, a Hot Springs police officer, was charged in her death, but the case was dropped when the state Supreme Court ruled that some key testimony, including my sister's own written words, were hearsay and therefore inadmissible.
We filed a civil suit to make the suspect testify on the record, but nothing came of it. If the case is ongoing, we've heard nothing from the State Police in many years.
However, in the early part of the investigation the State Police detective heading the case gave me access to the file. I was allowed to take notes, just not to make copies of the various documents, and was given no other restrictions. Later, the prosecutor who took over the case allowed our attorney and me to review the file again. And finally, the prosecutor who followed him offered us file access.
Years later, Linda's son, by then grown and very interested in his mother's case, asked the State Police to see the file. His request was denied.
That's a policy change, not a matter of law -- probably the same issue in the Stapleton case. The State of Arkansas does not serve its citizens well when it adopts and follows such a dubious policy.
If a family member is a suspect in a murder case, refusing access to the case file would be understandable, even advisable. But that's not so in either the Stapleton case or my sister's (Stapleton's husband, who died in 1968, was out of state at the time of her death). Family members have good reason to see the file in an unsolved murder and might even be able to add relevant information.
After 40 or 50 years you can only conclude that the police investigation has failed. The state should be willing to anything and everything logical to solve the case. Getting involved in a lawsuit with the families of the victims isn't a wise strategy.
The state stands on this exemption to the open public records law: "Undisclosed investigations by law enforcement agencies of suspected criminal activity."
That's pretty ambiguous on its face since a murder case is almost never "undisclosed," and it's more than suspected. But in a 1990 case, John Lee Martin Jr. vs. Dennis Musteen, City of Rogers and David S. Clinger, the state Supreme Court held that it applied to "open and ongoing" investigations. Further, the court said, whether the file should be open for inspection must be decided on a case-by-case basis.
Common sense says 50 years is long enough.
ROY OCKERT IS EDITOR EMERITUS OF THE JONESBORO SUN.
Commentary on 09/02/2014