April 8, 2011 in City

Judge rejects request to unseal FBI affidavit in Harpham case

By The Spokesman-Review
 
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A federal judge ruled Thursday that preserving a fair trial for domestic terrorism suspect Kevin W. Harpham outweighs the public’s right to know what evidence the federal agents gathered to justify charges against him.

U.S. District Court Judge Justin L. Quackenbush decided against a request brought by The Spokesman-Review, with support from the Seattle Times and the Associated Press, to unseal the 35-page probable cause affidavit that describes why federal investigators arrested Harpham in connection with a bomb left along the planned route of the Jan. 17 Martin Luther King Jr. Day Unity March in downtown Spokane.

Spokane TV station KXLY had filed a similar request, which also was denied.

“I do recognize the importance of the First Amendment and the role the press plays in informing people,” said Quackenbush, who hadn’t read the affidavit. However, he added, “I don’t see that the press’s role will be diminished if the information in the complaint is disclosed after the trial.”

Harpham, 36, was indicted by a federal grand jury on charges of attempted use of a weapon of mass destruction and possession of an unregistered destructive device. His trial is set for May 31 but prosecutors say the investigation is “ongoing.”

Assistant U.S. Attorney Joseph Harrington said he’s already turned over 2,014 pages of documents to Harpham’s defense attorney, Roger Peven. Harrington also, for the first time, revealed that the FBI on March 25 seized 75 additional pieces of evidence related to the case. He said much of that evidence has been sent to the FBI lab in Quantico, Va., but did not explain its contents.

Having that evidence in the lab caused Quackenbush to inquire whether the information would be available to the defense in time for them to prepare for trial.

“When someone is charged and is in custody … fairness and justice dictates that they just don’t sit in lockup as the Department of Justice and FBI prepares a case against them. There has to be an end to this at some point,” Quackenbush said.

Peven, executive director of Federal Defenders of Eastern Washington and North Idaho, said “the sooner the better for the trial date.”

“I think (federal prosecutors) are working diligently to give us the records the court requested,” Peven said.

On the issue of unsealing the charging documents, however, Peven noted that “a fair trial and a free press are not inconsistent with me,” but said, “I’m not offended by the government’s decision to withhold it.”

Quackenbush said, “The difficulty with pretrial matters, whether it is grand jury or affidavits submitted prior to indictment, they are replete with hearsay … and innuendoes, all of which are not admissible in court.”

But Jeff Humphrey, a reporter with KXLY, argued that federal agents had to go before a judge with the information they use to obtain search warrants or seek arrests.

“This is not gossip. Someone had to swear this was the truth as they understood it,” said Humphrey, noting a recent case against a member of the Hells Angels was unsealed. “This was an attack on the public.”

Quackenbush wondered aloud if there was some half measure where attorneys could review the 35-page document before it was released. “I think in fairness, I should read it,” said Quackenbush, who did not say when or if he would revisit the issue.

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