The only part of the Jack Hudson Murder Case, as it came to be known, that I had a part in was our office’s battle with the high-priced lawyers from Phoenix who descended on our rural county representing the news media who wanted every public record that there was, and they wanted everything NOW. It didn’t matter to the news media who cloaked themselves in their First Amendment sanctimony that our small government office had some equally serious constitutional duties of its own in what was likely going to be a capital murder investigation and prosecution.

Long gone were the days, if they ever existed, when local authorities could ask the media to keep some information from being immediately printed or broadcast so that the government could make sure that the constitutional rights of the accused and the constitutional rights of the crime victims and the best interests of the public at large could be carefully safeguarded. Today, the news organizations compete with one another to get an increasingly demanding public every scrap of information first and to publicize what they get the loudest no matter what the cost to criminal defendants’ and crime victims’ equally important rights of due process of law, as well as the first duty of government to help ensure the public’s safety.

I’m not whining or complaining, mind you. I’m as distrustful of government as the average citizen, probably more so. But I also know that governments are not things. They are people, almost always trying to do their best for the common good of the communities in which they live and are a part. But the modern news media are an especially pushy bunch and their high priced attorneys who want to insert themselves into an already extremely stressful situation where usually ordinary people are just trying their level best not to make costly or irreversible mistakes are something else. They are, themselves, a special lot. In private, they call themselves “The Big Dogs.” Their advice for little country and government lawyers is, “If you can’t RUN with The Big Dogs . . . STAY on the porch!”

Under Arizona law, everything a government agency like the police departments or prosecutors’ offices does is open to the public for the asking. It’s not this way in every state of our nation, but it is in Arizona, a state that was birthed in an early twentieth century Progressive Era’s distrust of government and big corporations. There are only three situations where the government can withhold information from the public, and those three instances require the government to be able to articulate to a court’s satisfaction specific, not speculative, harm that will follow a release of public information to the privacy of individuals, confidentialities protected by law, or the best interests of the state.

Other than those rare instances, the governments in Arizona must divulge any information that is requested or face huge attorneys’ fees when they eventually do if the government is found to have withheld public information in bad faith or to have acted in an arbitrary or capricious manner. In short, “The Big Dogs” mean business. They have voracious appetites for public information. And they ain’t cheap if you mess with them in the wrong way!

When the news media requested all the police reports and government public records in the Hudson Murder Case, the Yuma Police Department and Yuma County Attorney’s Office and the Yuma County Sheriff’s Office released to them everything except: (1) the urine test for Jack Hudson taken after he was arrested which showed an extremely high level of methamphetamine in his system; (2) the crime scene video that police made that depicted both the inside and outside of the drug task force offices, including the bloody places in the parking lot where Hudson gunned down Mike Crowe and the little office cubicle inside of which Dan Elkins engaged in a very brief and desperate hand to gun combat with his murderer Jack Hudson; and (3) twenty four hours of a surveillance video from inside the task force’s evidence locker that showed Hudson entering and exiting it on the night before and the day and night of July 4, 1995, as well as a few other undercover agents entering and exiting the locker during that time period, and, finally, Jim Ehrhardt entering and exiting with his sawed off shotgun.

That early in the investigation and beginning of the prosecution, the prosecutors and the defense team didn’t want Jack Hudson’s drug tests out in the public domain possibly tainting the potential pool from which his trial jury would be selected. And the police agencies didn’t want the insides of a normally secure and inaccessible government office that regularly stored guns, ammunition, drugs, and money on the premises to be seen and, perhaps, studied by future would-be burglars. Were these concerns overblown. Who knows? They were, however, sincere and not fabricated. Other than the mere sensationalistic exploitation of these items of public record to sell newspapers or lure radio listeners and television viewers, surely a simply commercial interest, why did the news media have to have them? To serve “the public’s right to know?” Please, give me a break. Wasn’t the provision of a fair trial looming in the future more important or not revealing the inside of government offices that the public isn’t allowed to enter without authorization and in a way that could lure more crime to them after the media publicizes the videos also a more important public interest?

Ultimately, a trial judge and then three appellate court judges ruled in favor of the plaintiff news media on two out of the three public record items, but the big surprise came in the courts’ unanimous denial of attorneys fees for the victors, the meaty bone that “The Big Dogs” almost always get to enjoy at the end of such litigation. The Big Dogs got no bone this time because we had researched the statute and published cases arising from the Arizona Public Records law before beating the media lawyers to court to ask a trial judge to decide if the state was lawfully withholding these few items of public record. Going to court before getting sued was key and doing so in an honest manner was essential so that the Yuma County taxpayer didn’t have to foot the bill of some very high priced law firms. This time the news media had to pay their own damned lawyers. Yuma County didn’t.

When David Ellsworth was informed of the appellate court’s decision, he asked his Chief Civil Deputy County Attorney, John White, why Yuma County wasn’t getting socked with a huge bill from the news media lawyers like so many other counties had been soaked in big media cases in Phoenix and in Tucson.

“Because, David,” John White told our boss, “Mark did this right!”

If you want to read this David and Goliath published opinion it’s entitled, KPNX TV v. Superior Court. We got to celebrate this tiny victory for our office for about a day. And then it was back to work for our office prosecuting the biggest murder case in Yuma County since the Tison Gang Murders about twenty years before, as well as the hundreds of other criminal cases that our small band of prosecuting attorneys handled that year.

The next year, the media giants in Phoenix and Tucson successfully lobbied the Arizona legislature to change our state’s Public Records Law to help ensure that they never had to suffer such a financial loss again.