Category Archives: Legal Affairs

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, 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.

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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.

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In the Newtown Clerk’s Office, a Dishonorable End to Six Months of Lawlessness

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

If you were a government official, how far would you go to push back against a law you disagreed with?

Would you openly defy the law?

Would you be willing to violate your oath of office?

Would you go so far as to badger those who favored enforcement of the law?

Until today, those questions earned a shameful “yes” in the Newtown clerk’s office, where officials for six months illegally withheld access to death certificates after deciding their personal sense of right and wrong trumped the statutory demands of their office.

This morning, the clerks finally relented, turning over dozens of heartbreaking photocopies bearing witness to the sad duty of doctors in the Chief State Medical Examiner’s Office to apply, over and over, a clinical description to the violence that stole so many innocent lives.

As I write this, a reporter is driving back from Newtown with the documents. When they arrive, they’ll be somberly analyzed for anything that might improve our understanding of that awful day – though it’s not likely the sparse documents will do much to peel back the mystery. We will wince at the now-familiar names, and think of the parents that we have come to know, but don’t really know. We’ll do our best to avoid flashes of the terror inside that school. And then the documents will be filed, along with hundreds or thousands of other sheets of paper amassed in our investigation and coverage of this obviously important, internationally significant story. [Update: Courant editors tell me that, following a review of the death certificates, no story will be written based on their content.]

That is what we will do with the records. And the town should have given them to us as soon as we asked last December. Continue reading

‘Conspiracy Nuts’ Relish Sandy Hook Secrecy Bill

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

It surely wasn’t their intention – and it’s clear they really don’t care what those on the fringe think – but a new bill developed by top state officials that would shield parts of the Sandy Hook investigation is proving to be a big hit with conspiracy theorists.

“The conspiracy nuts are going to love this,” a colleague had predicted the night details of the bill surfaced.

He was right. The legislation – drafted in secret and promoting secrecy – has unintentionally tickled the minds of those who feel buoyed by believing they’re in the know about some spectacularly massive government cover-up.

“In my estimation,” wrote a commenter on The New American website, “what they are trying to hide is that what happened at Sandy Hook (as well as at the shooting at the Batman movie not long before that) was a False Flag perpetuated by this administration for the purpose of furthering their on-going attacks upon our Constitutional freedoms and nothing less!!”

On the Courant’s site, a poster from Toronto asked: “Since when in the history of the world do they not publish a DEATH CERTIFICATE? I’ll tell you when… When the death certificate DOES NOT EXIST!”

And on, the granddaddy of conspiracy sites, hundreds of comments have been posted in response to the legislation, with many posters knowingly shaking their heads at the obviousness of it all.

“Nice how criminals get to cover up their own crimes and tracks,” one wrote. “Fortunately internet investigators have enough proof of what may have happened that day. One thing is certain: everything around Sandy Hook is a lie, a cover-up or a deception.”

Proponents of the legislation say they merely want to spare the relatives of  those killed at Sandy Hook the trauma that could come from having crime-scene photographs or other grisly details widely released. While typical media outlets refrain from publishing particularly disturbing images, proponents fear that the extraordinarily high profile of the Dec. 14 rampage would attract interest from others who would be willing to splash the images on the Internet.

As drafted, however, the bill goes beyond shielding images, and includes 911 recordings, police transmissions that describe the victims, and the death certificates issued for the 20 students and six educators killed at the school. The bill does not protect images or other records related to shooter Adam Lanza, who fatally shot himself in the school, or his mother, whom he also killed.

Transparency advocates have roundly criticized the proposal, particularly its extension to 911 recordings, which are often used to gauge law-enforcement response. The bill includes a provision for transcripts of such calls, though it is not clear if those transcripts could accurately reflect the tone and timing of the communications. Others question the fairness of legislation aimed at protecting the Sandy Hook families, but not the grieving relatives of other homicide victims.

Lawmakers are debating those points, and the bill might be amended if and when it comes up for a vote. In the meantime, those on the edge are relishing the fresh fodder.

“We already know they lied about assault rifles being used. That’s a proven fact,” one Huffington Post commenter confidently declared. “What are they covering up now?”

A Crime Like No Other, Followed by Secrecy to Match

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

For many, the horrible massacre at Sandy Hook Elementary School five months ago was a crime like no other in the state’s history.

So is that a reason to treat its investigation with a level of secrecy like no other?

Connecticut’s top prosecutor thinks so, as do some gubernatorial and legislative leaders, as well as some of the relatives who lost loved ones in the school. As my colleagues Jon Lender and Ed Mahony report, officials have been working behind the scenes for weeks on legislation that would establish special rules for Sandy Hook, blocking release of certain details from the investigation that would be released for other crimes.

The officials are asking the legislature for permission to withhold images of the victims, recordings of 911 calls and any other audio transmission that describes the physical condition of the victims, and the name of any minor witness.

Chief State’s Attorney Kevin Kane told the Courant that major news outlets typically don’t publish or broadcast crime-scene photographs or other gruesome images, but he said the Newtown killings “rose to a whole different level,” attracting wide interest from bloggers and the public. Proponents also say releasing the 911 tapes would unfairly show the anguish of those who called.

Another provision would give Newtown officials permission to refuse media requests for copies of death certificates for those who died at Sandy Hook. Remarkably, the bill would grant that permission retroactively, meaning the legislature could take a vote in May 2013 that would establish what the laws of the state were in January 2013. That sort of ex post facto lawmaking is typically frowned on.

As the community tries to cope with its incomprehensible loss, access to those death certificates has become a curious line in the sand, and perhaps a cathartic battle for town officials rightly steeped in grief. State Rep. Mitch Bolinsky called reporters “jackals” for requesting the records. Town Clerk Debbie Aurelia defied decades of law by simply refusing to turn them over. And a recent poster on this site declared “I don’t want to or need to read a 6 year old’s death certificate explaining how his head was blown off.”

But that is almost certainly not what any of the death certificates contain. As those who have worked with death certificates know, the records typically include extremely brief and clinical descriptions of the cause of death. “Atherosclerotic heart disease” is common. Or “malignant neoplasm of the lung.” Or, tragically, “multiple gunshot wounds to the head.”

Withholding that detail may not bring much solace to those most affected by last December’s rampage. But as officials strive to navigate the sensitivities of Newtown, that may not much matter.

Officials say the bill could be voted on at any time. The full text of the legislation is below.

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The Curious Logic of State Rep. Mitch Bolinsky

by Categorized: Legal Affairs, Media, Politics, Transparency/FOI Date:

Imagine there were a bill under consideration in the legislature that, if approved, would legalize marijuana use in Connecticut.  Would the existence of that debate mean we’re all free to spend the next few days firing up joints, without waiting to see if the bill actually becomes law?

Or let’s say lawmakers were thinking of raising the speed limit to 65 mph on the entire length of I-84. Would the introduction of such a bill be legal justification to immediately start blowing through Hartford at that top speed?

These would not qualify as difficult civics questions, and yet, under the curious logic of state Rep. Mitch Bolinsky, the answer to both questions would seem to be “yes.”

Bolinsky, a Newtown Republican, has introduced legislation that in most cases would set a six-month waiting period before a town clerk could release the death certificate of a child under 18. The bill was drafted after news reporters requested copies of death certificates for those killed inside Sandy Hook Elementary School – and after Newtown Town Clerk Debbie Aurelia, in a bow to the sensitivity of the tragedy, refused to release them.

Bolinsky famously called reporters seeking the records “jackals.” But perhaps more intriguing is the logical path he is following in defending Aurelia. Bolinsky told the Danbury News-Times‘ Dirk Perrefort that he does not believe Aurelia’s actions violate state law because there is pending legislation that would change the rules, and she hasn’t yet broken that potential, future law.

“She is still within that six-month window that is being proposed,” the newspaper quoted him as saying. “I would argue that she is well within her rights and I support what she’s doing.”

There is no serious dispute that death certificates in Connecticut are public records and town clerks are bound by their oaths of office to release them. So this is more the municipal equivalent of civil disobedience, where a town official has concluded that the interests served by disobeying the law are greater than the interest served by adhering to the statute.

Those are individual decisions, and it will be up to the Freedom of Information Commission to decide what consequences, if any, there will be for a town clerk who makes a principled decision to break the law.

But a legislator who endorses the practice on the chance that the action will stop being illegal some time down the road may not like what he finds following that concept to its logical conclusion.

In January, Bolinsky introduced another bill that, if approved, would repeal the state’s $250 business entity tax. Would Rep. Bolinsky be sympathetic to a company that stops paying the tax immediately, under the argument that, hey, there’s pending legislation?

I’ve left a telephone message for Bolinsky. When I hear back, I’ll ask him.

Brilliant South Florida Sun Sentinel Investigation Wins Top Pulitzer Prize

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

In Feb. 2012, I singled out a “stunningly clever” series of stories in the South Florida Sun Sentinel that exposed dangerously reckless driving by hundreds of off-duty police officers across the state. I named it an investigative-reporting “best of the week.” Today, the Pulitzer Board declared it the best of the year.

The Sun Sentinel was awarded the Pulitzer Prize for Public Service for “Above the Law,” a three-day project meticulously reported by investigative reporter Sally Kestin and database editor John Maines. The project used data from toll transponders – like those used with the EZ-Pass system – to determine how fast off-duty officers were driving  when they were off the clock. (By analyzing how long it took for a vehicle to pass from one toll location to the next, Kestin and Maines could calculate the average speed each car was traveling.)

The paper found 800 officers from 12 police agencies routinely driving 90 to 130 mph on roads with a top speed limit of 70 mph. One officer routinely traveled 100 mph or more on his commute into work – until a state trooper pulled him over for going 120mph in a 65mph zone. It was that traffic stop that sparked the series.

This was not simply gotcha journalism. Florida officers have been involved in hundreds of accidents while off-duty, and the Sun Sentinel reported that 21 motorists have been maimed or killed by speeding cops in Florida since 2004.

The series prompted reforms that will make Florida’s roads safer. Now that’s public service.