A judge Monday sealed tapes of hours of jailhouse phone calls made by chart-topping Lauderhill musician XXXTentacion. The decision is an affront to anyone who believes in open-record laws. It also violates state law.
In Miami-Dade circuit court, Judge Richard Hersch ruled that the tapes, which are at the heart of a witness-tampering case against one of America's hottest recording artists, shouldn't be given to the media or any member of the public for four months even though they have already been introduced as evidence. Hersch's terse, two-page order doesn't say why the tapes are being withheld, nor does it cite a specific exemption to the Florida's Sunshine Law, which says records are assumed to be open to the public.
“The judge's order doesn't follow the law,” says Scott Ponce, a media attorney who represents New Times in other cases but did not appear before Hersch for this one. “It doesn't identify the reason that he is finding these are not public records. It gives New Times and the public no way of knowing why these aren't public.”
XXXTentacion, whose real name is Jahseh Onfroy, was accused in 2016 of aggravated battery on a pregnant woman, strangulation, and other crimes. After the woman withdrew her claim, prosecutors charged him with witness tampering and, as evidence, provided the tapes of his calls from jail.
Authorities had agreed to provide the records, which were entered into the court record, to New Times for a $2,600 charge — a cost that is legal under state law. But after Onfroy's attorney, David Bogenschutz, filed a motion to seal the records, Hersch called a hearing Monday.
The Republican-dominated Florida Legislature has whittled down the state's so-called Sunshine Law in recent years, but to seal public records, the defense generally must prove they qualify under an exemption to the Sunshine Law.
Bogenschutz claimed two exemptions prior to the hearing: (1) that the phone calls relate to active criminal intelligence or investigation and (2) that they amount to a confession.
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When it came time to consider the arguments, Hersch called the lawyers into his chambers and left the media outside. Several hours later, the judge issued the ruling. It cites one case — WESH Television Inc. v. Freeman — and a judicial rule but makes no mention of alleged exemptions to the law that Bogenschutz cited.
The rapper has claimed the family of his victim demanded $300,000 for her silence.
Justice should not be administered in private. Judges should follow state laws. And the Legislature should stop trimming the Florida Sunshine Law, which is among the best in the nation. The public has a right to know.
It seems Bogenschutz and Hersch don't believe this, though.