The Newtown elementary school shootings have gripped Connecticut as no other crime, enduring as constant front page news.
On the lawns of the state Capitol, chants ring out from gun-control activists "Pass the law" — when there is no law in sight. And while lawmakers meet to consider gun safety and mental health legislation, Governor Dannel Malloy is impatiently shouldering forward his own legislative proposals, with predictions they could come to a vote in mid-March.
But responses to the Sandy Hook massacre are being debated without most people knowing all the facts. Policymakers, the press and the public don’t know what police were looking for — and what they found — when they searched the home of shooter Adam Lanza, and his first victim and mother, Nancy Lanza.
This normally-public list of what the search found remain under seal in the Danbury clerk’s office. Danbury State’s Attorney Sephen Sedensky obtained a 90-day sealing from Superior Court Judge John F. Blawie on Dec. 27. In five identical orders, the judge ruled that because this is an "ongoing investigation, the State’s interest in continuing nondisclosure substantially outweighs any right to public disclosure at this time."
But some members of the media are questioning that decision. A lawyer for The News-Times of Danbury, Stephen Yuhan, wrote to Blawie on Jan. 24, a letter that was joined by the New York Times, the Washington Post Company, the Associated Press and the Journal News, of Westchester County, N.Y.
They politely requested Blawie reconsider his order on the grounds that, with no living suspects, there’s no pressing legal reason to keep the documents sealed, and the public right to know should prevail. A continuing investigation, by itself, is not reason enough to seal, Yuhan wrote.
Yuhan cites Practice Book section 42-49A, which covers sealing of files in criminal cases, and says, "except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public."
If reasons for sealing existed in the weeks right after the shooting, they don’t anymore, Yuhan contended, and "any limited, speculative interest served by the continued sealing is outweighed by strong public interest in disclosure."
No Arrests ‘On Horizon’
In his defense, Sedensky has told reporters and the governor’s Sandy Hook Advisory Commission he could not talk about the case, due to Rules of Professional Conduct 3.6 and 3.8, which govern prejucial pre-trial publicity that could harm a defendant. Furthermore, he has asked to seal the search warrant file to protect the integrity of the police investigation until it’s completed, Sedensky told the Law Tribune.
"When you have an ongoing criminal investigation, I’m obligated to not talk about it, on the off-chance that there may be a criminal prosecution," he said. "As I told the people on the Sandy Hook advisory committee, while I have nothing appearing on the horizon, until the investigation is complete, you can’t categorically say there will be no more prosecutions."
He concluded: "The police have to be able to do their job, or finish their job."
Sedensky asked the court to dispense with the requirement of giving a copy of the warrant to the homeowner — presumably an estate. Nancy Lanza’s ex-husband reportedly allowed his home to be searched by granting permission to the police, dispensing with the warrant process.
Sedensky said in his sealing application the investigation is continuing, that no arrests have been made and "none are anticipated, but have not been ruled out." He states there is information in the affidavit "that is not known to the general public and any potential suspect(s)" and disclosing it would jeopardize "chances of solving any crimes involved."
Disclosure would "divulge sensitive and confidential information known only to investigators and any potential suspect(s) and also identify persons cooperating with the investigation thus possibly jeopardizing their personal safety and well-being."
Asked whether information from the searches would benefit lawmakers currently mulling policy issues of mental health and gun safety, Sedensky noted that the make and model of the guns involved have already been released. He added: "If any present threat to public safety emerged from the investigation, it would be announced immediately."
The information clampdown goes beyond the search warrants.
In an February 14 email to lawyers representing Newtown, Sedensky requested they not release 911 police phone call recording, which are routinely provided through Freedom of Information requests. Sedensky wrote: "This is an ongoing criminal investigation and materials related to this investigation such as 911 calls are not subject to a Freedom of Information Act request. Please do not release any materials at this time."
Proloy K. Das, a Hartford appellate lawyer with the firm Rome McGuigan, has worked for both the Freedom of Information Commission and the Office of the Chief State’s Attorney’s Office as an appellate prosecutor. He sympathizes with Sedensky’s position.
"It’s a difficult balancing act, both for the prosecutor and the courts," Das said. "Generally, investigations are done in private and prosecutions are done in public. This is a unique situation in that there is an investigation without the possibility of a prosecution. I’m not sure in that equation where the need for secrecy ends and the need for openness begins."
Wesley W. Horton, a Hartford appellate lawyer and former chair of the Connecticut Bar Association’s Ethics Committee, addressed the issues of prosecutorial statements and sealing the search warrants.
Horton noted that Rules 3.8 and 3.6 cover prosecutors’ duties and pre-trial publicity. In general, he said, a prosecutor has to refrain from making extrajudicial statements that would prejudice a criminal case.
"That rule says if a lawyer is participating in an investigation, he’s required to keep his mouth shut" if his comments could prejudice a future court proceeding, Horton said. "I agree with [Sedensky] that he needs to be concerned about rule 3.6a, if he’s making a statement [to the Sandy Hook commission]. Talking to the governor’s commission is an extrajudicial comment."
The rules governing prosecutorial conduct have nothing to do with the sealing of search warrants. But speaking generally, Horton noted two reasons why a prosecutor would want a warrant sealed. One is that "that you’re concerned potential targets would find out about it and impede the investigations." A second reason, said Horton, is that releasing the warrant would ruin someone’s reputation.
In Horton’s view, neither circumstance applies to this case. "I don’t see a reason to seal the search warrants at all, let alone for 90 days," he said.
There has been a partial vacuum of hard facts about Newtown. However, plenty of speculation has swept in. There are already groups forming on the Internet and YouTube videos being produced that attempt to deny that the Newtown tragedy ever even occurred. Sedensky said he didn’t have much respect for news outlets that write about the existence of conspiracy theories.
In his letter, Yuhan, The News Times’ counsel, made four arguments to Judge Blawie. First, as Sedensky said, "No arrests have been made and none are currently anticipated," and both Adam and Nancy Lanza are now dead. Secondly, the fact that the police have searched the Lanza home is a well-known matter of public record, and the police interest in the home’s contents is neither a secret nor a mystery.
Third, since searches were made so soon after the shootings — within hours at first, and then two days later — the letter states that "it is unlikely that the investigation by that point had progressed where the Search Warrant Records would contain anything but basic facts that are already known to the public at this date."
Fourth, public interest in the case is "extremely strong." Even if the state once made a showing of "exigent circumstances" to justify the sealing, the value of continued sealing is outweighed by the public interest in disclosure.
Yuhan cited a 2009 New Haven Superior Court case, State v. Raymond Clark III, in which sealed arrest warrants were contested by the Hartford Courant. In that case, Superior Court Judge Roland D. Fasano wrote that "Extensions may be granted….for no longer than reasonably necessary to deal with the exigency that warrants the issuance."
Sealing Limit Proposed
In 2006, when the state Judicial Branch was the subject of two commissions investigating court openness, the routine sealing of arrest and search warrants was an issue of concern.
The Public Access Task Force, created by then-acting Chief Justice David M. Borden, recommended that arrest warrant affidavits clearly list "the date a sealing order terminates," and that the affidavit form be revised to require that information.
Three years later, the Judicial Branch reported that this initiative had stalled. In a 2009 summary, it said, a proposed two-week limit on sealing arrest warrant affidavits "is not workable because the date of the defendant’s arrest would not be known and, therefore, it would not be possible for a judge, when signing an order sealing an arrest warrant affidavit, to set a specific termination date for the order."
According to active prosecutors, some judges still seal warrants "until further notice" or for an indeterminate amount of time. Most of the case law about sealed warrants pertains to arrest warrants, not search warrants.
In State v. Adam Gault, a complaining witness in a sex crime case attempted to invoke the Victims Rights Amendment to the Connecticut Constitution, become a party in the case, and then argue for the sealing of the arrest warrant, which contained personal and sexually explicit details. The trial judge, Hartford Superior Court Judge David Gold, redacted the personal data, but declined to permanently seal the warrant.
The state Supreme Court later held that victims do not have a right to party status under the Victims Rights Amendment, but the justices agreed that Gold’s compromise was a fair way to both document the grounds for criminal prosecution and respect the dignity of the witness.
Attorneys can recall only one recent case in which an affidavit was permanently sealed. That involved former state Representative Jefferson B. Davis, who was accused of sexually asaulting a minor. His accuser won a permanent sealing of the sexually explicit arrest warrant affidavit. The judge ruled against releasing a redacted version, because the document would then leave no record of the basis for arresting Davis.
The state Supreme Court upheld that decision in a 2003 ruling.•