After 22 years of gathering news for the Connecticut legal community, I want to take this opportunity to express my heartfelt thanks.
It's been deeply satisfying to work with the newspaper's publishers, editors and writers, addressing hot legal news of the day and enduring public policy issues. Throughout, it has been a pleasure and a privilege to explore the thinking of Connecticut's most interesting lawyers and jurists.
For me, this closes a rich chapter of a career blending lawyering and writing.
I appreciate this chance to say farewell to my Law Tribune readership, and to explain a bit about myself after all these years. After some 8,000 bylined stories, I've seldom used the first person singular except in a direct quote. As I look back over my journey so far, interesting and coherent themes emerge. Throughout, I've been fighting the powerful human tendency to slip toward murk: striving for clearer expression, fair notice, open records and government accountability.
I was in high school in Pennsylvania when I first fell in love with newspapering. It was a Quaker boarding school, Westtown, with the bland motto, "Turn to the light."
This was during the Vietnam war, before Watergate. My wife and I didn't marry until 1980, the same year I concluded a seven-year stint of daily newspapering, graduated from law school and passed the bar. The year was also capped by winning a national Investigative Reporters and Editors Award with the talented investigative reporter Gary Webb —whose too-short life may soon be made into a movie featuring actor Jeremy Renner.
While I was in law school full time and newspapering part time, Gary and I wrote a 17-part series on organized crime in the Kentucky coal industry. It's recently been published in book form — The Killing Game. Our research revealed that while law enforcement attempted to battle coal swindles on a state-by-state basis, their information was often gathered in vain.
Some of the most notorious con men, we found, were able to reinvent themselves with new swindles every few years, and the lawmen couldn't connect the dots. In our research, state and federal Freedom of Information law proved to be a vital tool, generating reams of documentation for "The Coal Connection" series. I would make use of FOI laws and other legal tools for unearthing information time and again in my journalistic career.
From Reader To Writer
After law school, I spent a decade restoring historically certified condominiums in the Art Museum neighborhood of Philadelphia. That line of work ended abruptly, due to tax law changes in the late 1980s, and the onset of a real estate and banking downturn.
Although I was only admitted to practice in Pennsylvania and New Jersey, I'd longed to move closer to the Berkshire Hills of western Massachusetts, the site of our family vacation preserve. Since law school, I had been mentally working on a trust to forestall that all-too-frequent fate of much family land — fracturing and partition.
Following my heart, we settled in Manchester, Conn., in 1989. I first got to know the Law Tribune as a subscriber. I remember being struck by how lively a publication it was. More than the other legal newspapers I'd seen, it seemed like a cohesive force holding together the state's legal community.
And it was ambitious. When I first saw the "Trib 10" results, listing the annual revenue and average partner profits of the state's top firms, I thought to myself, "You simply can't get these figures!" (I couldn't know at the time that digging for that data would soon become my very own annual chore.)
On impulse, I called the Law Tribune's Hartford bureau, and reporter Vivian Martin told me she was just about to move on. Editor Laurel Leff hired me after I contributed an essay on farm and forest open space tax policy. Robinson & Cole land use expert Dwight Merriam was a top source. (Later, in 1992, I finally drafted the family land trust, opening membership for future generations to share 500 acres, a waterfall, a pond and three houses. The trust's legal costs average less than $75 a year.)
Early in my Law Tribune reporting, Laurel encouraged me to write about the controversial decision of a cocaine-using pregnant mother who had her parental rights summarily terminated. The case, in re Valerie D, attracted 66 amicus curiae. But all the appellate briefs were sealed to protect the infant's privacy. My publishing company's lawyers in New York said we'd have to hire First Amendment ace attorney Floyd Abrams to get those documents, and it would cost thousands. Furthermore, I was told, we'd fail.
Nevertheless, encouraged by a young lawyer on the case, I filed a special motion with the Supreme Court. Chief Justice Ellen Ash Peters granted it, allowing release of the briefs without the child's personal identifiers. That was a great decision by Peters. Our readership wanted to know about the constitutional issues raised in the case, not the baby's name.
This was the journalist's job — to shed light. The fact that knowledge is power naturally makes the powerful want to control or hide information, create cost barriers, or downplay the need for an accountable public record. There's a continuous battle between the public's right to know and legitimate privacy interests. I had a wonderful time on that front.
Owning The Law
One big issue in the mid-'90s was the purchase of West Publishing by Thompson, an international conglomerate with U.S. headquarters in Stamford. The Law Tribune took the lead in covering the antitrust efforts by the U.S. Justice Department, and the subsequent copyright battle by West to gain a proprietary interest in the way legal cases are cited in court. Some of the headlines from those days were: "Who Owns The Law?" and "Librarians At The Gates."
By a single vote at the U.S. Court of Appeals for the Second Circuit, West's system of citation was deemed not inventive enough to deserve copyright protection.
If, in theory, the public is expected to know the law — the user's manual in a participatory democracy — it seems to me it shouldn't be burdened by private add-on costs to access it.
My seven-part series on the West-Thompson merger was nominated for a Pulitzer — a rare day for the Connecticut Law Tribune. To the credit of American Lawyer Media, I was never pressured to treat West Publishing with kid gloves, even though it was a big potential advertiser.
Sometimes the story was about too much information. As more court decisions wound up on CD discs, computer search created new privacy issues. For juveniles in the criminal justice system, a closed court system assured anonymity. Not so for children in a family custody battle.
They had committed no offense, but their names, birthdates, and detailed accounts of sexual victimization were routinely reported in family court decisions. This was a new vulnerability of innocents. In the old days of paper opinions, you simply couldn't do a name search.
I explored the issue in the article "Private Hell On The Public Record," which pointed up the lack of any privacy guidelines for children in family decisions.
Sometimes I pursued stories simply because they were too good to miss. At first, I wasn't assigned to cover the 2002 Beth Carpenter murder-for-hire trial in New London, but I couldn't stay away. Beth, a young associate, persuaded her smitten senior partner and lover, Haiman Clein, to hire a law firm client to kill her brother-in-law.
During breaks at the trial, I worked on my other previously assigned stories by pay phone. When my reporting from the trial began to hit the editor's desk, I was given unlimited space. In the years since, I've repeatedly been asked to comment on the Carpenter case for TV programs, most recently this spring in the current series Blood Relatives, on the Investigation Discovery channel.
Later in 2002, I got wind of a secret files system used in Connecticut courts. In the "super secret" Level One category, no docket number was created and court clerks were instructed to deny the very existence of the case, if asked. Divorce and custody matters of influential people — such as a UConn president — were given this special treatment.
The first time I wrote about this, it was barely noticed. A few weeks later, when the December holiday parties were abuzz with a rumor that then-Governor John G. Rowland was the target of a potentially embarrassing civil action, his press office assured reporters that if something had been filed in court, it would surely be public.
Not necessarily so, we responded, and re-explained the system of secret files. In this context, the story took off, and larger papers like the Hartford Courant gave it generous space.
After public hearings over court rules changes, Connecticut's judges voted to do away with wholesale file sealing, and established a process to have notice and a hearing before a document or file was sealed, or a courtroom was closed to the public. In fact, in a Connecticut innovation that is a national first, the Judicial Branch posts notices on its website of all motions to seal files or close courtrooms.
I remember suggesting this reform in an interview with then Chief Justice William Sullivan and Associate Justice Peter T. Zarella. Although their initial reaction was that such a notice posting process would be impossible, they eventually helped make it a reality.
Privacy And Secrecy
Still, even by 2005, the court system remained the most arcane and mysterious branch of government, poorly understood by the public. The constitutional phrase stating "courts shall be open" is riddled with exceptions. Where information is concerned, there will always be people who want to close hearings, seal files, or limit accountability, calling secrecy "privacy."
Not long ago, a sign hung in a New Haven courthouse warning "no note-taking." In West Hartford, a Superior Court judge was irritated by the sound of reporters flipping through their reporters' pads, and ordered them to stop taking notes.
Against this backdrop, the public was ready to believe that all was not right in the Judicial Branch. It came to a head shortly before Zarella was to go before the legislative Judiciary Committee. He was poised to succeed Sullivan as chief justice.
But then word came out that Sullivan, without much thought, instructed the reporter of judicial decisions to delay publication of a controversial FOI decision, Clerk of G.A. 7 v. FOIC.
The courts are only half covered by the FOI. Administrative data is available. Records used for judicial decision-making are not. The line between these categories separates what's in the light and what's in the dark, and the courts get to draw that line.
In the Clerk decision, Sullivan denied a lawyer FOI access to the Superior Court "day book" docket records. In other states, lawyers use this intake data to find new clients. The majority ruled that this docket data was part of the judicial decision-making process and exempt from FOI access. Zarella joined the majority.
Sullivan's "hold" was aimed at sparing Zarella questioning when he went before the Judiciary Committee. Its co-chairs took great offense. (It didn't help that Zarella is a Republican and the co-chairs, then-Senator Andrew McDonald and then-Representative Michael Lawlor, are both Democrats.)
The legislature tried to force Sullivan to appear for questioning, triggering a dramatic clash between branches and subsequent court battles. In the end, two blue-ribbon committees targeting the public accountability of the Judicial Branch offered up scores of recommendations. Not one reform was legislatively imposed. The Judicial Branch, however, under the leadership of acting Chief Justice David M. Borden, voluntarily adopted many of the recommendations.
A court case brought by the Courant and the Law Tribune made it to the Second Circuit, and the resulting decision is the most exhaustive ruling in U.S. law on the public's right to view court docket information. That case, The Hartford Courant v. Pellegrino, was settled under Borden, but the issues of how much court information should be public remain a subject of urgency and relevance.
My interest in open government led to my being invited to serve on the executive committee of the Connecticut Council on Freedom of Information, and in 2008 I was elected president. The CCFOI, founded over 50 years ago by Connecticut publishers lobbying for the creation of a Freedom Of Information Act in Connecticut, currently works to defend the act from being weakened by exceptions and exemptions.
Another group focused on improving public access is the courts' Judicial Media Committee. I served on a task force aimed at making it possible for journalists to make audio recordings of court proceedings. Audio recording is allowed at meetings in the other two branches of government. Unfortunately, journalists were well outnumbered by judges, court reporters and practicing lawyers, and our efforts met with no success. There are plans to have CDs of court proceedings available quickly at nominal cost, but that will require an equipment upgrade that awaits improved Judicial Branch funding.
Why do such efforts matter? I believe we've reached an extraordinarily important moment in history for those who make and shape public policy decisions. As our institutions move from a paper-based information storage system to the digital age, an extremely high-stakes battle is brewing between the what's public — for commercial and government purposes — and individuals' privacy interests.
For me, this is an extraordinarily auspicious and exciting time to be taking a new direction. In many ways, even though it is saddening to say goodbye to the Law Tribune, it couldn't have come at a better moment for me.
In whatever endeavors I next pursue, I hope I have occasion to re-connect with the many members of the Law Tribune community I have come to deeply appreciate. •
Want to get in touch with Tom Scheffey? You can contact him at firstname.lastname@example.org.