Court seals Topeka police affidavit in Mickel Cherry murder case after Zoey Felix death
The public will remain in the dark on what Topeka police know about the death of Zoey Felix that led Shawnee County prosecutors to charge Mickel Cherry with child rape and capital murder.
Cherry, who could face the death penalty if convicted, successfully got the Topeka Police Department affidavit sealed in Shawnee County District Court.
He has been accused or raping and killing 5-year-old Zoey, who had recently become homeless, earlier this month. But police, prosecutors and the state's child welfare agency have released little information on what happened.
A copy of the order was emailed to the Topeka Capital-Journal and three other news outlets that had requested the affidavit. The order, and any other filings, are not readily available online to the public because of the Kansas court system's ongoing technology issues due to a network security incident.
Under Kansas law, affidavits or sworn testimony in support of probable cause are considered public records that can be requested by anyone. However, both the defense and prosecution can request redactions or sealing of the document.
“The presumption of access to court records under the First Amendment requires detailed explanations, on the record, as to why a court record is sealed,” said Max Kautsch, a Lawrence attorney and Kansas Press Association legal adviser. “This order fails to articulate those reasons, leaving the public in the dark as to why a seal was necessary.”
Who wanted the Mickel Cherry affidavit sealed?
The order notes that defense counsel submitted — under seal — proposed redactions to the affidavit, reasons to support the proposed redactions and a motion to seal the affidavits. Prosecutors did not object to the sealing or redacting of the affidavit.
Cherry is being represented by public defenders on the Death Penalty Defense Unit. District Attorney Mike Kagay has not yet decided whether he will pursue the death penalty.
Why is the affidavit sealed?
Magistrate Judge Christopher Turner opted to seal the entirety of the affidavit instead of releasing either a redacted or an unredacted version.
Public disclosure of the affidavit would "jeopardize the safety or well-being of a victim, witness, confidential source or undercover agent, or cause the destruction of violence," Turner wrote in a Tuesday order. It also would "interfere with any prospective law enforcement action, criminal investigation or prosecution" and would "endanger the life or physical safety of any person."
Further, releasing the affidavit would "reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense" and "reveal the name of any minor."
It is unclear why redaction of the affidavit would not be sufficient to address those concerns.
More: Mickel Cherry charged with rape, murder in Zoey Felix death. DA could pursue death penalty
More: Topekans demand 'Justice for Zoey' after 5-year-old's rape and killing by homeless man
Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.
This article originally appeared on Topeka Capital-Journal: Affidavit sealed in Mickel Cherry murder case after Zoey Felix death
