Thursday, August 6, 2015

Undisclosed Kurt Cobain Crime Scene Photos and Judicial Intervention

King County Superior Court - Seattle, Washington.

Given the graphic nature of the Kurt Cobain crime scene photos and the significant privacy and public interest issues raised by a potential public release of them, it's of course entirely understandable that impassioned debate would ensue from the recent lawsuit that sought to compel their disclosure. Importantly, that lawsuit was dismissed by the Court on procedural grounds, rather than on the substantive question of whether or not those images belong in the public domain. (All this means is that the person seeking disclosure of the images apparently did not “follow the rules” in bringing the suit, so the Court was simply unable to proceed to the main question at hand.)

Also, as a preliminary matter in this article, while I understand the instinct to raise it, the character of the requester or the purpose for which the requester seeks the records is, as a matter of law, ultimately not of issue here. (See, for example, WAC 44-14-04003“Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose of the request.” There are some limited exceptions to this rule with regard to “purpose of the request,” but they are not pertinent.)

This all said, there can be no reasonable argument at this juncture as to whether or not these images should be subject to expert review so as to ascertain the value of the evidence contained within them. The potential forensic value therein cannot be understated and they must be subject to such inquiry. The problem in this regard is that despite compelling evidence indicating a renewed and full review of Kurt Cobain's death is required, local agency resistance over the years to doing so has been unyielding.

This is a real predicament of considerable legal and moral significance, squarely impacting upon various public interests. The law in this regard, at least with respect to questions bearing on whether such a release would be detrimental to privacy interests (see RCW 42.56.50), plainly states that for privacy concerns to be violated such records must not be of “legitimate concern to the public.” It goes without saying, with respect to the forensically invaluable crime scene photos in the death of Kurt Cobain, and the twenty-one year roadblock imposed in obtaining a competent investigation into his death, that these images are of considerable concern to the public.

At the most basic level in this regard, we have an individual who has lost his life without it ever being meaningfully investigated by those bestowed with the obligation to do so; in addition, while all lives are equal, this individual's cultural, social and artistic contributions to society are of an extraordinary magnitude – this of course ought not ever be taken for granted nor the ongoing societal loss with regard to future artistic contributions this person would have gifted to us had he not died so young. Certainly the public has an interest in ensuring Kurt Cobain and other violent death victims be afforded a thorough review as to how they met their end.

In addition, the public interest in ensuring a correct determination on cause of death as it relates to the copycat suicide phenomenon is also paramount and very real. This is so not only for the sake of all those kids who have already ended their lives, but also because these young individuals are almost certainly continuing to do so, particularly given Kurt Cobain's heightened media presence of late and certain media events that inappropriately validate the misplaced suicide verdict.

Further, there are genuine and significant public interest concerns as to whether certain individuals within the Seattle Police Department responsible for ensuring proper public disclosure of records with respect to the death of Kurt Cobain can meet this obligation. This is evidenced by the vested interest some in the Department have to ensuring Kurt Cobain's death is not re-investigated: such a position is maintained in order avoid subjecting the Department and individuals therein to embarrassment and other potential liabilities. By way of example, one need only turn to Detective Mike Ciesynski's 2014 dismissive reaffirmation of the suicide verdict or the agency's withholding of the “Phoenix Note,” which – irrespective of whether it was authored by Kurt Cobain or Courtney Love – is soaked in considerations bearing on motive.

There are of course other public interests at play here, but one need not run through all of them for the point to be made that there are compelling reasons that all the evidence bearing on Kurt Cobain's death be thoroughly re-evaluated. And, naturally, review of the unreleased crime scene photos would be a vital and necessary component of any such investigation.

All this said, taking into consideration various public interests, the understandable privacy concerns in the matter, and the very real questions bearing on whether certain segments of the Seattle Police Department can responsibly carry-out their public disclosure obligations, I believe the Court would be entirely justified in releasing at least some of these images into the public domain.

In this regard, as provided for in the Washington Public Records Act (RCW 42.56.550) and in the Washington Administrative Code (WAC 44-14-08004) (see image below), the Court could conduct a private “in camera” review of each individual undisclosed photograph and, in the Court's discretion, make a determination as to which photos may have been wrongly withheld and should be in the public domain. Doing so would immediately enable independent expert review of the forensic data contained in the released images, which could shed enormous light on the highly suspicious nature of the victim's death.  Importantly in this respect, the WAC plainly states that "Court's are encouraged to conduct an in camera review because it is often the only way to determine if an exemption has been properly claimed."

Washington Administrative Code (WAC) 44-14-08004.

In conclusion, for twenty-one years the deceased has been denied a meaningful inquiry into his passing, the circumstances of which being indicative of Homicide. The Court, accordingly, would be well within its legal and ethical prerogative to insert itself where appropriate, such as in the aforementioned manner, to help effectuate a just outcome to this individual's premature end.

No comments:

Post a Comment