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.

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