Category Archives: Legal Affairs

Veteran Boston Investigative Reporter Detained in Russia

by Categorized: First Amendment, Law Enforcement, Legal Affairs, Media, Non-profits Date:

Joe Bergantino, executive director of the New England Center for Investigative Reporting and a long-time Boston television reporter, was detained in Russia Thursday while conducting a training session for fellowBergantino journalists, according to a release from the New England First Amendment Center.

Bergantino and Randy Covington of the University of South Carolina were leading a workshop with Russian journalists when authorities interrupted the session and took the two men away, the release states, citing Beth Daley, a reporter for NECIR who has spoken with Bergantino.

Daley said the men were accused of “teaching an educational workshop illegally because they were using the wrong visas,” according to the release. The men were then taken to a Russian court and ordered to halt the workshop and leave the country.

Bergantino, a former reporter for WBZ-TV and ABC News, co-founded the non-profit New England Center for Investigative Reporting in 2009.

The Practice Book Rule That Connecticut Judges Rarely Obey

by Categorized: First Amendment, Law Enforcement, Legal Affairs, Media, Transparency/FOI Date:

The arrest affidavit detailing the criminal case against Southington teenager Eric Morelli, who unwittingly caused a fatal fire by tossing firecrackers at a friend’s bedroom window, was ordered sealed three different times in the last month and half, until a Superior Court judge lifted the secrecy order late last week after acknowledging there was no good reason to keep the document under wraps.

This happens too osealedfileften, despite a legal mandate that favors openness in the courts, and clear rules establishing the hurdles that must be cleared and the process that must be followed when judges take what should be the extraordinary step of shutting off public access.

So as a public service, The Scoop would like to publicly remind the state’s judges, prosecutors and defense attorneys of their obligations under the Connecticut Practice Book when seeking to seal arrest warrants and other court documents.

Section 42-49A of the Practice Book begins: “Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.” That presumption is echoed in the commentary of the section, which summarizes the findings of various court cases that make up the established and non-discretionary law of the state. “The public and press enjoy a right of access to attend trials in criminal cases and to access documents filed in connection with such cases,” the Practice Book notes. “This right is well settled in the common law and has been held to be implicit in the first amendment rights protecting the freedom of speech [and] of the press.”

That right, of course, is not absolute – as indicated by the phrase “Except as otherwise provided by law” – and there are various reasons why at least portions of a court document may legally be sealed, such as to protect witnesses or preserve an ongoing criminal investigation that would truly be jeopardized if certain details became publicly known.

But the Practice Book recognizes that is a momentous step and mandates that judges work to minimize the impact on the public’s right to know. As such, a sealing order can be entered “only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such material. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.”

And the Practice Book requires judges to pay more than lip service to that principle by spelling out exactly what they’re doing and why. In sealing a document, “the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order.” In addition, “the judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.”

There are no transcripts or memoranda in Eric Morelli’s file and veteran criminal court reporters will tell you that in practice, there is little resembling the formality and gravity envisioned by the Practice Book rules.

In the Morelli case, the initial seal was requested by the prosecutor in what sometimes seems like an automatic action in higher-profile cases. Such requests are rarely rejected by judges. The last extension to the seal order was requested by Morelli’s defense attorney, who said he feared pre-trial publicity could poison a jury pool and that details in the warrant might be embarrassing to those involved.

Defense attorneys are duty-bound to promote their clients’ interests, but seasoned lawyers certainly know those are almost never valid reasons for keeping an arrest warrant secret. Nevertheless, some judges apply an inappropriately low level of scrutiny to such requests. And as in the Morelli case, they often are overturned only after intervention by a newspaper lawyer.

That’s not how it’s supposed to be. So in this, the 223rd year of the Bill of Rights, I offer a modest proposal that the state’s criminal bar and judiciary give Practice Book Section 42-49A a fresh read and recommit to the transparency that has been a hallmark of a reputable judicial branch for centuries.

So What Exactly is John Rowland Accused of Doing?

by Categorized: Law Enforcement, Legal Affairs, Politics Date:

I got an email the other day from a former political press aide from another state, expressing befuddlement over exactly what laws former Gov. John Rowland is accused of breaking in his dealings with former Congressional candidate Lisa Wilson-Foley.

“I still don’t get what Rowland’s crimes were,” the former aide wrote. “Is the crime some type of illegal campaign assistance? Is it a lack of proper income reporting on the part of Rowland? Is it some type of non-transparency of the assistance given that violates some law?”

Good questions. Federal criminal law can be complicated, so here’s a primer on the government’s legal theory and the specific accusations lodged in Rowland’s indictment.

There are seven counts in the indictment, but they all flow from the requirement that candidates forRowland_Court federal office must accurately report where campaign money is coming from, and where it’s going. And if the general factual allegations are true – that Rowland performed paid work for Wilson-Foley’s campaign but was paid with funds secretly provided through a third party, and that neither the money in nor the money out was reported on campaign-finance forms – then that would appear to be a violation of the reporting requirements. In brief: the government alleges that money controlled by Lisa Wilson-Foley or her husband Brian Foley essentially was given to the campaign and then passed on to Rowland, and neither of those transactions was listed on the forms.

So it’s evident why Wilson-Foley, the candidate, would be in trouble in a situation like that, and she has in fact already pleaded guilty. But does her illegal activity attach to Rowland?The government says it does, and in Rowland’s indictment, there are both direct and indirect allegations.

Within the seven criminal counts, there are four different allegations:

1. Conspiracy. The government alleges that Rowland was the one who proposed the arrangement with Wilson-Foley (and did so specifically to avoid the mandatory public reporting of campaign spending information), and then participated in developing the details of the sham arrangement. So this is a typical conspiracy charge: Rowland wasn’t required to file a campaign-finance report and didn’t file a false campaign-finance report, but is accused of conspiring to violate the reporting laws.

2. Falsification of Records in a Federal Investigation. Rowland is charged with two counts of falsifying records, based on two allegedly sham consulting contracts (one for Wilson-Foley and a proposal two years earlier involving another Congressional candidate, Mark Greenberg). The government’s theory is that those contracts were drafted “in order to conceal from the [Federal Election Commission] and the United States Department of Justice” that the payments were actually for campaign work, and were made “with the intent to impede, obstruct, and influence the investigation and proper administration” of federal campaign-finance laws. That, they say, makes the creation and execution of those contracts illegal under federal law – and, therefore, a criminal act by Rowland – even if no “federal investigation” was underway when they were drafted (and, in the case of the Foley contract, even if the bulk of the document was created not by Rowland, but by a lawyer working for Brian Foley’s company).

3. Causing False Statements (two counts). These counts relate to two separate campaign-finance filings in which Wilson-Foley did not record payments to Rowland. So why is that Rowland’s legal problem? Under the government’s theory, it’s part and parcel of the conspiracy. By proposing and participating in the scheme, they say he’s criminally liable for “causing” the inaccurate FEC filings to be made, even if someone else was responsible for preparing and filing those reports.

4. Illegal Campaign Contributions (two counts). As above, these are decidedly indirect charges, based on the legal theory that the funds used to pay Rowland were, as a matter of law, funds donated by the Foleys to the campaign. Since those donations weren’t reported, the government considers them illegal campaign contributions. And since the government accuses Rowland of proposing and participating in a conspiracy by which money would be provided for the campaign’s use in such a way that it wouldn’t be reported, they say that makes him legally liable for the allegedly illegal donations. So the government isn’t claiming Rowland made or accepted illegal contributions, but rather that he’s criminally liable for allegedly illegal contributions made by the Foleys, based on his involvement in the alleged conspiracy.

Rowland’s attorney, Reid Weingarten, has proclaimed that his client will be “fully vindicated.” Federal officials, meanwhile, appear to be betting on significant jail time for a public official who has seen prison bars before. Absent a plea bargain – and a trial seems likely at this point – it will be up to a jury to declare which side has the law on their side.

Affidavits Tell Sad Tale of Collapse of Hurley Scholarship Foundation

by Categorized: Education, Government, Legal Affairs, Non-profits, Uncategorized Date:

The inevitable dissolution of the battered Doc Hurley Scholarship Foundation came a step closer Thursday with Judge Carl Schuman’s order barring the foundation from engaging in any official acts while he considers the fate of the once-revered scholarship fund.

On April 7, barring objection – and no objection has been registered so far – Schuman may formally eliminate the organization Walter “Doc” Hurley dreamed up four decades ago to help needy high school students reach their college dreams. The foundation – which held more than $1 million in assets seven years ago – is now penniless, and Hurley’s daughter, Muriel, is facing a civil suit brought by the attorney general accusing her of looting the charity.

The collapse of the Hurley foundation is on stark display in a series of affidavits filed by nine Hurley scholarship winners who didn’t receive the money they were promised. As part of the Courant’s investigation of the foundation, we tracked down more than a dozen winners who were shortchanged, and lawyers for the state then soon followed up.

Utsarga Bhattarai was awarded a $2,000 scholarship when he graduated from West Hartford’s Hall High School in 2008. But he said the money never came. “On multiple occasions, up and through my junior year of college, I contacted the Foundation through multiple telephone calls and e-mails, but never was contacted by the Foundation,” he wrote.

That sentiment is repeated over and over. “I sent multiple e-mails and made multiple telephone calls to the Foundation and left messages, but never received e-mails back or any return telephone calls,” wrote Alyssa Cusano, who received $500 of the $2,000 she was promised.

Brittany Cavaliere left phone and e-mail messages after her aid stopped. So did Jermaine Thomas and Amanda Trothier. And several other students. But they said they either received no response, or were assured that the scholarship money was on its way. But it never arrived.

The affidavits are included in the dissolution lawsuit merely to bolster the state’s case that the Hurley Foundation was no longer operating as a charitable organization and should be shut down. There is no means through that process to make the students whole.

State officials aren’t foreclosing the possibility of recovering assets that could be distributed to past scholarship winners. But the foundation’s bank accounts are empty, and finding any seizable assets is proving to be a difficult feat.

The students’ affidavits are below:

HurleyExhibits (Text)

Sedensky Formally Drops Appeal on Newtown 911 Tapes

by Categorized: First Amendment, Government, Law Enforcement, Legal Affairs, Media, Public Safety, Transparency/FOI, Uncategorized Date:

Danbury State’s Attorney Stephen J. Sedensky III Wednesday formally abandoned his argument that state law gave him the authority to withhold recordings of 911 calls made during the Sandy Hook Elementary School shooting, ending a nearly yearlong battle that highlighted tensions between transparency and privacy.

The Freedom of Information Commission had ordered the tapes released, and they were made public a week ago after a judge ruled he would not keep them secret pending an appeal by Sedensky of the commission’s ruling. Although Sedensky could have pursued the legal arguments even after the tapes were released, he dropped the appeal Wednesday, submitting a one-page form to the court declaring that he was unilaterally withdrawing the suit.

After the Associated Press filed a Freedom of Information Act request for tapes of the 911 calls, Sedensky ordered Newtown police not to release them. Although such tapes are routinely provided, Sedensky argued to the Freedom of Information Commission that the tapes were legally exempt from disclosure because their release would harm a prospective law-enforcement action and because they contained confidential evidence of child abuse and were the equivalent of signed witness statements.

The FOI Commission unanimously rejected those arguments and Sedensky appealed to Superior Court, asking Judge Eliot D. Prescott to stay enforcement of the commission’s order to release the tapes while the appeal was pending. Prescott turned him down, declaring that parts of Sedensky’s argument “bordered on the frivolous” and amounted to a claim by the prosecutor that the tapes are exempt from disclosure “because ‘I say so.’ ”

The tapes became a raw battleground in the emotional aftermath of the mass shooting, with some family members of those killed urging that the recordings never be made public and some transparency advocates saying prolonged efforts to keep them secret had merely fed conspiracy theorists and exacerbated the families’ anxiety over their release.

Prescott wrote that media attention following release of the tapes would probably be “a searing reminder of the horror and pain of that awful day.” But he said access to the tapes would also allow the public to evaluate the response by police.

“Delaying the release of the audio recordings, particularly where the legal justification to keep them confidential is lacking, only serves to fuel speculation about and undermine confidence in our law enforcement officials,” he wrote.

The tapes revealed the terror inside the school in the moments after the shooting began and the steely resolve of several staff members as they alerted police. Officers arrived quickly, although five minutes passed before the first entered the building. Sedensky said that with initial reports of multiple shooters, the actions of the earliest responders was appropriate.

More Frustration at Privacy/Transparency Task Force

by Categorized: First Amendment, Government, Law Enforcement, Legal Affairs, Media, Politics, Public Safety, Transparency/FOI Date:

The old adage that watching laws being made is like watching sausage being made was on display Wednesday during a 2½-hour meeting of the state’s Task Force on Victim Privacy and the Public’s Right to Know, at which frustrated members found themselves struggling with parliamentary bureaucracy and entrenched disagreements.

Half-way through the meeting, after a lengthy and complicated series of motions and amendments, Quinnipiac University law professor William Dunlap tried to suggest a way to move toward a vote on a proposal by state Victims Advocate Garvin Ambrose.

“Once we dispose of the Storey amendment, then Ms. Mozdzer-Gil’s amendment is entirely in order, because it’s an amendment to your original motion, as amended to conform with Sen. Fasano’s proposal,” he said.

But by then, Ambrose had given up.

“I have a solution,” he said. “I’m going to take the entire issue off the table and just withdraw my motion completely so we can start fresh, because this is getting beyond ridiculous at this point.”

But it wasn’t quite so easy. Instead, the panel spent another two minutes discussing whether Ambrose could in fact unilaterally withdraw his motion or whether the full task force had to vote on whether or not the full task force could stop considering the issue.

The task force, which will make recommendations to the legislature, was created during the last legislative session, following the mass shooting at Sandy Hook Elementary School and fears that records related to victims and witnesses would be released publicly. The same legislation that created the task force also temporarily amended the state’s Freedom of Information Act to exclude from mandatory disclosure “the identity of minor witnesses” in records created by police during criminal investigations.

State Sen. Leonard Fasano, a member of the task force, said at an earlier meeting that that language was added at the request of Bridgeport lawmakers in response to the 1999 murder of Leroy “B.J.” Brown, an 8-year-old city boy who witnessed a shooting and was killed before he could testify.

The boy’s name came out as part of the criminal trial, not as a result of a Freedom of Information Act request, and the recent change in the law would have no impact on a similar scenario. But it has become something of a line in the sand between privacy advocates and transparency advocates on the task force.

Transparency advocates say existing law already allows police to withhold the names of witnesses of any age who might face intimidation or threats. Privacy advocates say minor witnesses and accusers deserve special protection and a presumption that their identities should be confidential, just as juvenile defendants are afforded special protections. During Wednesday’s meeting, those points were made over and over.

As the gathering neared the one hour and 45 minute mark, co-chairman Don DeCesare’s patience was wearing thin, as illustrated in the video below, from CT-N. DeCesare said the group was “bunkered in” and seemingly unable to move forward.

Forty-five minutes later, after a discussion of whether or not they had to take a vote on whether to take a vote, the deeply divided panel did in fact call the roll on a proposal to restrict access to the identify of witnesses under age 13 – but to make that information releasable once the witnesses turn 18.

The vote: Seven in favor. Seven opposed.

In Three-Minute Auction, Attorney Joe Elder Loses House to Rival

by Categorized: Legal Affairs Date:

A long-running battle between two well-known Hartford criminal lawyers reached a new milestone Saturday afternoon when one of the lawyers won the other’s house in a three-minute foreclosure auction.Sidney

As the Courant reported in this morning’s paper, attorneys Wesley Spears and Joe Elder have been in a years-long court fight spawned by a bizarre episode nearly a decade ago in which Elder claimed to be Spears in telephone calls with a police sergeant. Spears sued and won a $73,000 jury verdict that has ballooned to more than $125,000 with interest and legal fees.

Motions and appeals and counter-claims and a bankruptcy filing kept the dispute alive. In 2011, with the judgment unpaid, Spears went after Elder’s West Hartford home, and shortly after noon Saturday, a dozen people gathered in front of the house as a court-appointed attorney opened the bidding.

“No. 1 bids $40,000,” said a man in blue jeans with a cell phone pressed to his ear.

“No. 2, 50,000,” said another man.

“No. 1 bids 55,000.”

“No. 2 bids 60.”

And so it went between the two bidders. A third person had registered for the auction and submitted the required $20,500 deposit, but did not place a bid.

In the end, bidder No. 2 offered $96,000 and bidder No. 1 topped that with an even $100,000. There was no counter.

“Final bid. That’s it. $100,000,” the auctioneer said.

But that may not be it. The successful bidder was attorney Kevin J. Burns, who represents Spears. Once the auction is approved by the court, Spears could try to sell the house and recover more of what he is owed, even after paying off an existing $47,000 mortgage.

But all of that, of course, assumes that Elder doesn’t have one last trick up his sleeve.

Stay tuned.

At Typically Genial FOI/Privacy Task Force, a Rare Burst of Frustration

by Categorized: Ethics, First Amendment, Government, Law Enforcement, Legal Affairs, Media, Politics, Public Safety, Technology, Transparency/FOI, Uncategorized Date:

The 17-member Task Force on Victim Privacy and the Public’s Right to Know is typically a cordial bunch, despite having strong voices at polar opposites on the issues. Garvin G. Ambrose, the state’s victim advocate, for example, evaluates victim privacy and media rights through a completely different lens than, say, James H. Smith, a former newspaper editor and now executive director of the Connecticut Council on Freedom of Information. And Chief Public Defender Susan O. Storey sits right next to Chief State’s Attorney Kevin T. Kane, leading to frequent side-by-side disagreements, but also to occasional friendly banter.

But despite the normally civil tone, the task force, created in response to the Sandy Hook shootings, “can be a pressure cooker,” Smith said. And that below-the-surface tension made a rare and dramatic appearance during a marathon hearing Wednesday, when a frustrated DebraLee Hovey, a task force member and state representative from Newtown, laid into a transparency advocate who suggested that civil laws might already address the sort of harmful behavior members of the committee were looking to curtail.

Rosanna Cavanagh, a lawyer and executive director of the New England First Amendment Coalition, told task force members that relatives of the Newtown victims had seemed to indicate through their attorney that they were primarily concerned about graphic details of the crime being misused by those on the fringe who were intent on causing pain to the families. She said those actions could run afoul of laws already on the books that punish the intentional infliction of emotional distress.

That earned a sharp rebuke from Hovey, who assailed Cavanagh’s perspective – and lawyers in general. You can view the exchange below, and watch the entire hearing on CT-N.com, the website of the Connecticut Network.

The task force was established by the legislature to “consider and make recommendations regarding the balance between victim privacy under the Freedom of Information Act and the public’s right to know.” Those recommendations are due Jan. 1.

Prosecutors Say Order to Release 911 Tapes from Newtown Could Aid Criminals

by Categorized: First Amendment, Government, Law Enforcement, Legal Affairs, Media, Public Safety, Transparency/FOI Date:

State prosecutors and transparency advocates will square off next week as the state Freedom of Information Commission considers a proposed order to release tapes of 911 calls made during the December shooting at Sandy Hook Elementary School in Newtown.

In advance of the Sept. 25 hearing, Danbury States Attorney Stephen J. Sedensky III has filed a brief saying the proposed order misinterprets state law and, if upheld, could be a boon to criminals trying to figure out what evidence investigators have collected.

Sedensky argues that the tapes are protected from disclosure by laws related to investigations of child abuse, and by exemptions to the state’s Freedom of Information Act covering records to be used in a future law-enforcement action. Kathleen K. Ross, a lawyer with the Freedom of Information Commission, rejected those arguments during a hearing in June.

The full commission typically upholds the decisions of its hearing officers, but Sedensky will have an opportunity next Wednesday to try to persuade them to reject Ross’s proposed order. Either way, the matter may not be settled for a while. Whoever loses next Wednesday can appeal the commission’s order to Superior Court.

Our full story on Sedensky’s legal brief is here. And the full document can be read below.

Download (PDF, 1.31MB)

FOI Lawyer Chastises Newtown, State Prosecutors over 911 Calls

by Categorized: First Amendment, Government, Law Enforcement, Legal Affairs, Media, Public Safety, Transparency/FOI, Uncategorized Date:

As we reported in this morning’s paper, a hearing officer for the state’s Freedom of Information Commission has issued a preliminary ruling finding that Newtown police illegally withheld publicNPD Badge access to 911 calls made from inside Sandy Hook Elementary School during the Dec. 14 attack.

The hearing officer, Kathleen K. Ross, chastised Newtown for failing to evaluate whether the records were exempt from disclosure, instead deferring to state prosecutors who instructed the town not to release the tapes.

At a commission hearing in June, nearly six months after the Associated Press sought access to the tapes, Newtown and state officials argued that the recordings should not be released, citing a variety of exemptions, including a claim that releasing the tapes would prejudice a prospective law-enforcement action. Ross rejected all of those assertions, setting up a Sept. 25 hearing at which the full commission will decide whether to adopt Ross’s report.

Lawyers for the state Division of Criminal Justice will be back at the commission’s offices, making the case for why the tapes should not be released. And even if the commission upholds the hearing officer’s report – as they usually do – the state could appeal that decision to Superior Court, a step that would add months if not years to the resolution of the matter.

The full hearing officer’s report appears below.

Download (PDF, 515KB)