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A recorded conversation between an assistant Polk County Attorney and area law enforcement has some asking if prosecutors are over-stepping their authority by trying to control the release of information.

A subpoena is a court order, commanding you to appear in court or produce specific documents.  Failing to comply, can result in jail time.  That’s why this phone conversation between Assistant Polk County Attorney, David Porter and a person in charge of evidence at the Johnston Police Department caught our attention.

David Porter:  Any time you all receive a subpoena or a letter that’s not a D.O.T. subpoena, don’t produce it.

Johnston Police:  We’ve always produced.

David Porter:  I understand.

Johnston Police:  Um, because we called and asked the County Attorney’s Office if that was a problem and they said no. We prefer them to go through here, but if you want to do it, go ahead.

David Porter:  I’m not sure who you spoke with, but I’m telling you no.

Robert Rehkemper is the attorney who triggered that phone call.

We started making requests directly to agencies for various police reports, video tapes or other documentary evidence primarily in O.W.I. investigations,” says Rehkemper.

Rehkemper’s request was made under the Open Records Law, Chapter 22 of the Iowa Code.  There are limitations, but in general, it guarantees public access to all public records.

“And there’s no exception for attorneys, or the media, or Republicans or Democrats, or anyone,” says Kathleen Richardson, the Secretary of the Iowa Freedom of Information Council.  “Every person is allowed to have access to public records.”

Traditionally, the defense and the prosecution exchange information on witnesses and evidence through a process called reciprocal discovery.  Generally, it means if the prosecution gives the defense information the defense has to do the same.  Rehkemper says he decided to get the information directly from local law enforcement – rather than prosecutors – for two reasons.

“Defending somebody accused of a crime, my goal is to get as much information about the allegations as possible, as soon as possible.”

The other reason:  To prevent the destruction of evidence, particularly in cases where video tapes and blood tests can mean the difference between a conviction and acquittal.

“And that happens more often than you might think in those types of cases,” says Rehkemper.

Jeff Noble, the Bureau Chief of the Intake Division of the Polk County Attorney’s Office disagrees.

“I don’t believe that’s a situation that happens often all.”

But that’s exactly what happened to Andrea LaForge.

“The blood that my attorney had requested to be saved so we could test it and things like that had been destroyed.”

LaForge lost control of her car at the Northeast 14th Street exit ramp to Interstate 80-35.

“I hit a patch of black ice, lost control of my car and we rolled several times into the ditch,” says LaForge.  “A good friend of mine, Jamie hill ended up passing away as the result of the accident.”

LaForge was charged with vehicular homicide by O.W.I., even though tests taken at the hospital after the crash placed her blood alcohol level below the legal limit.  LaForge faced 25 years in prison.

“It was a nightmare,” says LaForge

But after four years of court proceedings, the case was dismissed, due in part to the destruction of her blood sample.

“I never thought something like this would happen,” say LaForge.  “I think I was very unfairly treated.”

That brings us back to that phone conversation between Assistant Polk County Attorney, David Porter and Johnston Police.

Johnston Police:  They said it wasn’t an issue to provide that as long as we had the subpoena.  So that’s what we’ve always gone with.

David Porter:  Uh, irrespective of the subpoena, it doesn’t matter.  If you all receive a request for any discovery for any case, you let us know and you give it to us and we will produce what we think is pertinent to be produced.

Noble says he understand the tape alone makes it look as if the State is trying to hide information, when it’s just the opposite.

“We’re the ones trying to get all the cards from both sides on the table.”

Noble believes Porter’s conversation was entirely appropriate.  He says attorneys like Rehkemper aren’t following the rules of discovery and therefore, the subpoenas they issue in cases like this are illegal.

“This was an attempt to circumvent the rules and maybe it was clever, maybe it was creative, but it was unfair because it was trying to get information in the dark of night rather than in the light of day.”

Robert Rigg, a professor of law at Drake University, says if that’s the County Attorney’s position, prosecutors need to go through the proper channels to address the problem.

“They need to go to court and secure some type of court action.”

That action, according to Rigg, would begin with the Polk County Attorney’s Office filing a motion to quash the subpoena or deny the open records request, rather than tell the agency that received the request not to comply.

“You’d have a hearing, the court would make a decision and then you would get a ruling.  If you didn’t like that ruling you could appeal that ruling.  But you don’t unilaterally get to decide what is discoverable and what isn’t discoverable on your own,” says Rigg.  “You can’t just ignore a subpoena.”

We asked Rigg to listen to the phone conversation between Porter and Johnston Police.

“I don’t think I would have made that phone call and I don’t think I would have said what was said on that tape,” says Rigg.

The most concerning portion of the conversation is when Porter advises the Police Department to direct all requests for information to the Polk County Attorney’s Office.

Johnston Police:  Okay, we’ve also had requests, also subpoenas from private persons.

David Porter:  I don’t care.

Johnston Police:  Okay, so we should direct all private entities to the county attorney’s office.

David Porter:  Private entities, attorneys, uh media requests, anything like that has got to go through our office.

That doesn’t sit well with Richardson.

“It’s certainly not the attitude you would want and expect, especially in a government agency that is supposed to be ensuring the law is being followed and that government is open to the citizens as much as possible.”

Noble says the phone call as a whole was intended to address concerns with defense attorneys.

“I don’t think David’s statements were intended that broadly.”

So are Polk County prosecutors trying to restrict attorneys, the media, even the general public from accessing information, many believe is public record?

“It makes me question and makes me concerned,” says Rehkemper.  “Why don’t they want us to have basic information about a case?”

According to Noble, there’s nothing nefarious going on – far from it.

“This office tries very hard to make sure both sides get a fair trial,” says Noble.  “If we find there’s something unjust or inappropriate about a criminal case, there’s no hesitation to dismiss a criminal charge.”

LaForge isn’t so sure.

“I always thought that way.  I was raised that way.  You know, police are good, the law and I don’t have that view so much anymore.”