To Whom Is State’s Attorney Stephen Sedensky Accountable?

In recent days Governor Malloy has expressed his extreme impatience and displeasure with the length of time it is taking Danbury State’s Attorney Stephen J. Sedensky III to release his own final report of the tragic events of December 14, 2012 at the Sandy Hook Elementary School in Newtown, CT.  (I say “his own final report” because the State Police are preparing their own investigative report, as is customary.  It needs to be released as well.  A highly redacted “executive summary” by Mr. Sedensky is not sufficient.)

Governor Malloy has stated of the prosecutors in the Danbury State’s Attorney’s office, “They don’t work for me. If they did, this report would have been out already.”

Governor Malloy is not passing the buck.  He is absolutely accurate in stating that he does not control Connecticut’s State’s Attorneys.  But if the governor is not in charge of them, who is?

I have previously described Connecticut’s constitutional system of government as a seven-headed hydra, rather than the conventional three-branched government, i.e., executive, legislative and judicial.  Under our system, various functions of government are placed within the executive branch, yet they are deemed independent and are not subject to direct gubernatorial control.

The prosecutorial function is an example of a government function that is technically part of the executive branch, yet independent of it as well.  That function is vested in an entity known as the Division of Criminal Justice, which is “responsible for the investigation and prosecution of all criminal matters in the State of Connecticut.”  But it is also “an independent agency of the executive branch of state government, established under the Constitution of the State of Connecticut.”

In short, the State’s Attorneys are part of the Division of Criminal Justice, which is part of the executive branch of government–of which the governor is the chief executive officer–but the governor has no direct authority over its activities.

This is not necessarily a bad thing.  There is a reason the Connecticut Constitution and the General Assembly give “independent” status to certain agencies that are technically part of the executive branch–these agencies serve watchdog and similar functions and they need to be insulated from direct political control over their activities.

So, back to my earlier question.  If the governor is not in charge of the State’s Attorneys, who is?  In a very real way, the State’s Attorneys, including the Chief State’s Attorney, are their own bosses.  But ultimately, especially if they want to be reappointed, they are accountable to the Criminal Justice Commission:

The Commission makes appointments of statutorily mandated prosecutors, as well as other prosecutors requested by the Chief State’s Attorney, who is responsible for the administration of the Division of Criminal Justice.  The Commission is composed of the Chief State’s Attorney and six members nominated by the Governor and appointed by the General Assembly, two of whom must be judges of the Superior Court.

Significantly, the Commission’s authority is not limited to the appointment of state prosecutors; it includes the power to discipline them as well:  “The Commission is responsible for the appointment and discipline, unless otherwise provided by collective bargaining agreement, of attorneys in the Division of Criminal Justice, according to law.”  Connecticut State Agency Regulations, sec. 51-275a-2.  Section 51-275a-4(b) describes how to file a complaint:

Any complaint concerning the performance or conduct of any employee of the Division of Criminal Justice shall be in writing and sent to the Chairman, c/o OCSA, 340 Quinnipiac Street, P.O. Box 5000, Wallingford, CT 06492. The Chairman shall take whatever action he deems to be appropriate including investigation of the complaint by himself, or referral to the Chief State’s Attorney or appropriate State’s Attorney for investigation. The chairman may call a meeting of the Commission to discuss and act on any complaint or results of the investigation of any complaint. Nothing in this section shall be construed to require the Chairman to take any action on a complaint.

The current members of the Commission are:

• The Honorable Richard N. Palmer, Associate Justice of the Connecticut Supreme Court
• The Honorable Juliett L. Crawford, Judge of the Superior Court
• Mary M. Galvin, Esq.
• Maura Hughes Horan, Esq.
• Moy N. Ogilvie, Esq.
• Ann G. Taylor, Esq.
• Kevin T. Kane, who is the Chief State’s Attorney

Should State’s Attorney Sedensky be removed from office because of the long delay in preparing and releasing his report on Sandy Hook?  No.  Should he be called before the Criminal Justice Commission, which appointed him to his position, to account for the delay and for his persistence in making highly questionable legal arguments to justify his refusal to release 911 calls?  Yes.  The Criminal Justice Commission should demand an explanation of his conduct, and the public is entitled to hear that explanation.

UPDATE (November 17, 2013):

The Hartford Courant reports today that Mr. Sedensky intends to release a highly redacted summary report (just as I predicted) of the Sandy Hook tragedy on November 25.  Reports from family members who have spoken with Mr. Sedensky says his summary report contains little information that was not already known to them.  A much larger State Police report will be released when the investigation is deemed complete–at some indeterminate date in the future.  

This state of affairs is unacceptable.  Given the magnitude of this investigation, it could be many many months before the State Police believe that they have truly “completed” their investigation.  The State Police need to release what they have now.  They can supplement their report if the investigation reveals further details.  The public has waited long enough.