Justice questions seal on Vanderbilt rape trial as unusual

A court order sealing all evidence presented during the public trial of two former Vanderbilt University football players who raped another student is so unusual even the Tennessee Supreme Court is curious about it.

Nashville Criminal Court Judge Monte Watkins initiated the order, which seals all evidence and testimony presented at the more than two-week trial in January when a jury found Brandon Vandenburg and Cory Batey guilty in the rape.

At the time, media advocates labeled the court order unprecedented. Supreme Court Chief Justice Sharon Lee took time during a related case on Thursday to question the order as unusual.

The reason some legal minds say the order stands out is because the rape trial was open to the public.

It was shown live on TV and the Internet. Reporters rapidly tweeted tidbits of testimony. Anyone could have walked in to watch.

Watkins has not said why the order sealing all trial evidence and testimony was needed. Two other protective orders were agreed upon to keep graphic images of the rape victim from getting out to the public. The Tennessean is not seeking those images in its case, which is now before the Supreme Court. Watkins' office has also refused to release trial transcripts.

On Thursday, the five justices of the Tennessee Supreme Court heard arguments whether records — such as text messages between Vanderbilt coaches and players — are public record (as the newspaper and a media coalition argue), or if they are exempt from release by laws protecting the privacy of victims and allowing exemptions for ongoing investigations (as the victim and government argue).

Their questions turned to what information is already public, given three protective orders in the criminal case.

Lee asked if surveillance tapes of the dorm where the rape took place were public records. Deputy Attorney General Janet Kleinfelter said they were not, because of an initial protective order issued by Watkins.

Justice Gary Wade asked if text messages or emails from third-parties, which were obtained via subpoena or search warrants in the rape investigation, were subject to the existing protective order.

Kleinfelter said "possibly." But she said that the protective order issued after the trial was so broad she did not know what third-party evidence was presented at trial.

"There's not enough evidence in the record for that determination to be made, because after the trial of the two defendants was completed, the trial court entered a protective order that sealed all evidence that had been entered into the record throughout the entire proceeding," she told the justices.

"Is that not very, very unusual?" Lee asked.

"Your honor, I don't normally practice criminal law, so I couldn't say," Kleinfelter said. "I do think that it's not something that occurs on a regular basis."

"Well, it's an open trial, people can go..." Lee started to say.

"It was an open trial, your honor," Kleinfelter said. "It may be the fact that there are still two defendants left to be tried."

Two other former football players, Brandon E. Banks and Jaborian "Tip" McKenzie, are both awaiting trial on charges of rape related to the June 2013 assault at Vanderbilt.

The case against Batey and Vandenburg, which was delayed multiple times before trial, could be far from finished. This month, Watkins will hear motions to declare a mistrial based on what defense attorneys say was a biased juror. An appeal is likely if that doesn't go in the defense's favor.

Don Cochran, an associate professor at Belmont School of Law, said he has seen judges seal cases while appeals are ongoing.

"To me it's certainly not the norm. It's unusual, but it's not unheard of," he said. Cochran, a former state and federal prosecutor in Alabama, said some of his cases were sealed for years after a trial.

The question, he said, is how long the judge has jurisdiction to keep the protective order in place. He said there was no clear-cut answer to that.

"To me the question is, when is the case over?" he said.

Reach Stacey Barchenger at 615-726-8968 or on Twitter @sbarchenger.