District Attorney David Lozier has sent a letter directly to the chambers of a Beaver County judge, asking that he keep from public view a Beaver Police dash cam video that shows Officer Jeffrey Wijnen-riems’ arrest of James Edward Cicco in August of last year.
Common Pleas Judge Dale Fouse dismissed the remaining felony charges filed by Officer Wijnen-riems against James Cicco following a hearing last month that saw the man’s defense attorney play the dash cam video frame-by-frame in open court. Judge Fouse determined there was no evidence to substantiate charges filed by Offier Wijnen-riems that Cicco had resisted arrest or taunted his police K-9 Czar during the incident. Cicco was hospitalized for three days as a result of bite wounds sustained during the encounter.
The Beaver Countian had sought a copy of the dash cam video for publication following a March 28th hearing for pretrial motions in the case; while Clerk of Courts Judy Enslen at first said she would provide a copy of the exhibit that had been filed with her office, she ultimately failed to make arrangements and never returned a phone call to provide an explanation as to why she was withholding the record.
A court docket for the case was subsequently updated to show that the video exhibit was being stored in a safe inside of the Clerk of Courts Office rather than in the case file itself.
A Right-to-Know request was then filed by the Beaver Countian on April 5th seeking any emails, faxes, or correspondence between the District Attorney’s Office and the Clerk of Courts, that produced a letter written on March 29th by District Attorney David Lozier to Judge Dale Fouse. Lozier’s letter shows it had been copied to Clerk of Courts Judy Enslen and James Cicco’s defense attorney.
District Attorney Lozier’s letter to Judge Fouse asked him to not release the dash cam video to the public, reasoning the exhibit may be the subject of a motion to suppress and could unduly influence a potential jury. Lozier informed Judge Fouse that he had denied a Right-to-Know request previously submitted by the Beaver Countian for the video.
“My office refused that request pursuant to the ongoing criminal investigation exception,” wrote Lozier. “I reasoned that the raw video created or collected during a criminal investigation should be withheld from public release due to the possibility that some or all of the video could later be suppressed by the court.”
The video has since been played as an exhibit in open court by both the prosecution and defense during hearings on criminal charges that had been filed against Cicco.
“That open records request is ongoing,” continued District Attorney Lozier in his letter. “The open records request is the proper forum for such a request and such a release.”
Although the Beaver Countian has purposefully chosen to follow directives by the District Attorney’s Office during the open records request process, the office’s actions and assertions over the course of several months remain in apparent contradiction to the Pennsylvania Right-to-Know Law (see: Editorial: Our Efforts To Show You The Beaver Police Dash Cam Video That Officials Really Don’t Want You To See).
The Beaver Countian’s efforts to obtain the video from the District Attorney’s Office through open records procedures is separate and distinct from its efforts to obtain the exhibit from the court system itself. Despite District Attorney Lozier’s assertions to Judge Fouse, the Pennsylvania Right-to-Know act is not applicable to the judiciary and does not govern court documents. The Pennsylvania Supreme Court has separately held that the public has a presumptive right to most court records including exhibits shown in open court regardless of their potential admissibility.
District Attorney Lozier argued in his letter that the dash cam video itself was not a part of the official record in the case against James Cicco.
“At the hearing, defense counsel, Gerry Benyo, presented the videos in support of his arguments to dismiss [criminal charges],” wrote Lozier. “At no time, however, were the videos entered into evidence by Attorney Benyo.”
Judge Fouse reviewed the video in chambers and referred to it in detail in his written opinion dismissing charges in the case. It is unclear how Judge Fouse could have lawfully considered the video in that manner when making his decision if it had not been officially provided to the court. It is generally unlawful for a judge to conduct his own investigations into matters pending before the court or to consider items not otherwise officially provided to him — it is similarly unlawful for the court to be given such evidence in an informal manner that would effectively create a de facto secret court system.
According to a pretrial motion filed by the District Attorney’s Office in the case, the video was first physically provided to the judge by their own office, “the Commonwealth will provide the video from Officer Wijnen-Riems vehicle to the Honorable Dale M. Fouse to expedite the suppression/habeas hearing.”
A pretrial motion filed by Cicco’s defense attorney noted that the dash cam videos were being, “incorporated by reference herein in their entirety as provided through Discovery from the Commonwealth without editing,” making the videos an inseparable part of the original court filing and as such appearing to make them part of the official record as well.
It is unclear what office or person currently maintains custody and control of the copy of the video provided to Judge Fouse by the District Attorney’s Office.
Following a hearing on those motions, District Attorney Lozier’s letter to Judge Fouse accused James Cicco’s attorney of being engaged in a conspiracy to make public records public, although Lozier provided no evidence for his claims of misconduct by defense attorney Gerald Benyo.
“Following the hearing defense Counsel Benyo ‘filed’ some digital format of the videos for the purpose of making a ‘public record’ available for dissemination to the media and to the community at large,” wrote Lozier. “I object to the Defense Counsel’s filing and his apparent intention to release these videos through this procedure.”
Defense attorney Gerald Benyo told the Beaver Countian he filed the video before — not after — the hearing for the purpose of preserving the official record should he need to pursue an appeal on behalf of his client. Attorney Benyo declined to provide comment about Lozier’s letter for this article.
District Attorney Lozier concluded his letter to Judge Fouse by insisting the video should not be released.
“Until the Clerk’s Solicitor [attorney Stephen Colafella] and this Court has an opportunity to fully and fairly evaluate this matter the videos should not be released by the Clerk of Courts,” he wrote.
The private correspondence from District Attorney David Lozier to Judge Dale Fouse, Clerk of Courts Judy Enslen, and James Cicco’s defense attorney, was not an official court motion asking that the video exhibit be sealed, was not a properly filed formal objection, does not appear on a court docket for the case, and is not otherwise part of the official record, leaving no practical way for the general public or a higher court to know about the existence of the extrajudicial communication.
The Beaver Countian is currently in consultation with attorneys on how best to proceed in dealing with the entire situation on behalf of the public.
District Attorney David Lozier’s prosecution of James Cicco has been wrought with apparent legal irregularities, which included prosecutors permitting a Solicitor for Beaver Borough and the Beaver Borough Police Department to argue that the defendant should be made to file a Right-to-Know request for potentially exculpatory evidence in his case which the police department should be allowed to deny.