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Drawing on his experience representing media outlets in the state for the past 35 years, Ralph G. Elliot said he believes it is unconstitutional for juvenile court records to be allowed confidentiality protection under the umbrella of the state’s statues. Moreover, he added, the common law presumption is that all court records are presumed available to the public. Elliot, an attorney with Tyler Cooper & Alcorn and an adjunct professor of media law at the University of Connecticut Law School, said no one has ever challenged a state statute blocking access to juvenile records because there was never a need or a reason that would justify a suit or the expense of litigation. “It is clear under the United States Constitution that all court files are presumed to be open,” Elliot said. Attorney David B. Fein of Wiggin & Dana may be inclined to agree with Elliot, after his March 21 motion to obtain juvenile court records in the Michael Skakel case was denied by Judge Maureen Dennis. On March 10, Judge Dennis opened Skakel’s reasonable cause hearing to the public, even though the 39-year-old is currently being charged as a juvenile in the murder of former neighbor Martha Moxley, because Skakel was 15 at the time of the 1975 murder. The statutory scheme in place in 1975 has been applied to the case, and at that time youthful offenders were usually offered a chance for rehabilitation instead of jail time. Many laws have changed in the past 25 years, and today juveniles facing murder charges are not as lucky. “When the judge (Dennis) opened up the hearings to the public she never had to deal with the constitution,” Elliot said, speaking to the fact that neither the defense nor the prosecution in the Skakel case objected to opening the proceedings. “It wasn’t a difficult decision.” Six media outlets vying for the confidential information through Fein and his firm include The Advocate of Stamford, The Greenwich Times, The Hartford Courant, The New York Times, Newsday, and the Associated Press. “We are still, at the moment, in a technically juvenile setting,” Fein said. “Our view has been, however, the confidentiality interests that give rise to this case are not present. (Skakel) is a 39-year-old adult who does not need the protection of juvenile laws.” Fein said his clients were mostly interested in the affidavits used to sustain the arrest warrant for Skakel, who was arrested in January on the murder charges. The documents would help inform the public as to the basis of Skakel’s arrest, as well as the quality of evidence against him. In his motion, Fein outlines that the public’s general interest in the high profile case greatly outweighs Section 46b-11 of the Connecticut General Statues, protecting juvenile records, and added the court has the opportunity to open the records for the public. The fact that Judge Dennis opened the court proceedings to the media and general public supports the motion for opening the juvenile records, according to Fein. Skakel’s attorney Michael “Mickey” Sherman has neither objected or consented to opening the court files, although he did express a concern that disclosing the contents of the arrest warrant’s supporting affidavits might prejudice his client. Fein argued that Sherman’s concern was an insufficient reason to deny his motion in light of important public rights at stake, citing State v. Kelly. “The federal constitution’s first amendment right of public access to courts cannot be overcome by a conclusory assertion that publicity might deprive the defendant of a fair trial,” Fein wrote in the motion. “It is beyond dispute that the countervailing interests that would apply to an ordinary juvenile case, and which would justify the presumptive confidentiality of juvenile records under section 46b-124, do not apply to this case.” Fein also highlighted the fact that Skakel’s case may be transferred to criminal court upon conclusion of the reasonable cause hearing; at that point, the issue would be moot, since the records in question would be available to the public. In her memorandum of decision on June 19, Judge Dennis denied Fein’s motion, stating juvenile records must remain confidential even after the subject has reached the age of majority; and that absent consent, the moving party “must show both a compelling need and that the information being sought is not otherwise available.” Judge Dennis also wrote that Fein and his clients failed to demonstrate a compelling need, and have conceded that at least some of the information they seek would be available by virtue of the media and public access in the proceedings. Ruth Mantak, an attorney with Mantak & Christensen, said she was not sure why the court was sticking to such stringent juvenile protection and outdated laws for Skakel, because the same courts today do not offer similar protection to juveniles charged with murder. “Personally I don’t see how a 39-year-old man is entitled to juvenile protection.”

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