Initial Thoughts On The Sandy Hook Summary Report

As promised, this afternoon Danbury State’s Attorney Stephen Sedensky released his report of the shootings at Sandy Hook Elementary School and the Lanza home on December 14, 2012.  The 44-page report is available here.  The 236-page appendix is available here.   Having read the report, I have a few reactions.  With one exception, my comments are limited to the legal implications of certain statements in the report. 

1.  First, the exception.  The State’s Attorney carefully describes the scope and purpose of his report (p.7):

The purpose of this report is to identify the person or persons criminally responsible for the twenty-seven homicides that occurred in Newtown, Connecticut, on the morning of December 14, 2012 to determine what crimes were committed, and to indicate if there will be any state prosecutions as a result of the incident.

The State’s Attorney’s conclusion (p.7):

It is the conclusion of this State’s Attorney that the shooter acted alone and was solely criminally responsible for his actions of that day.  Moreover, none of the evidence developed to date demonstrates probable cause to believe that any other person conspired with the shooter to commit these crimes or aided and abetted him in doing so.

Unless additional–and at this time unanticipated–evidence is developed, there will be no state criminal prosecution as result of these crimes.

Respectfully, this conclusion was known to the general public–and to the State Police and the State’s Attorney–many months ago.  In fact, from the outset of the investigation, when the State’s Attorney signed off on several search warrant applications, he acknowledged that a criminal prosecution in this case was unlikely because the person who committed the heinous acts at issue, Adam Lanza, had killed himself at the scene.  Yes, the possibility existed that someone had assisted Lanza and the police had to investigate that possibility.  But it did not take the State Police or the State’s Attorney until today, or last week, or last month, to conclude that investigation.

In short, if the purpose of the report was to identify the person or persons criminally responsible for the Sandy Hook homicides and to determine whether the state would prosecute anyone, the long delay in the issuance of the report is extraordinarily difficult to fathom or justify.

2. The State’s Attorney states (p.43), “With the issuance of this report, the investigation is closed.”

This statement is legally significant because it removes a possible justification for withholding information under the Freedom of Information Act.  Under what is often referred to as the “law enforcement exemption” to the FOIA, records of law enforcement agencies compiled in connection with the investigation of a crime may be withheld if “disclosure of said records would not be in the public interest because it would result in the disclosure of information to be used in a prospective law enforcement action if prejudicial to such action.”  See Conn. Gen. Stat. section 1-210b(3)(C).  As there will be no “prospective law enforcement action,” i.e., no criminal prosecution, this exemption is unavailable.

3. The report states (p.6) that “the federal authorities have stated that under federal law many of their reports and materials cannot become part of the public record due to rules regarding the dissemination of information obtained pursuant to grand jury subpoenas, sealed search warrants, and federal Freedom of Information Law.”

This statement raises many questions.  Our state FOIA recognizes exemptions based on federal law, but the person asserting the exemption needs to identify the federal law or laws at issue so that the assertion of a federal exemption can be challenged, if appropriate.

4.  The report states (p.7):

Many witnesses to this case have expressed great concern that their identities will be disclosed publicly and make them susceptible to threats or intimidation as a result of their cooperation or connection with the investigation.  This cooperation has been essential and greatly appreciated.  As a result of the witnesses’ concerns, this report will not identify lay witnesses, except where necessary.

Footnote 9 adds, “In fact some witnesses have had that occur to them.”

These are very serious statements.  The argument that witnesses fear being intimidated or threatened if their identities are disclosed has been made throughout the pendency of the Sandy Hook investigation.  But the report does not tell us how many witnesses to this case have expressed such concern.  It does not tell us anything about the specific contents of the threatening or intimidating statements.

5.  Very often the most interesting legal arguments appear in footnotes, and the State’s Attorney’s report is no exception.  In particular, footnote 12 (pp.7-8) is very troubling.  It purports to justify the State’s Attorney’s decision to exclude certain information from his report based on state child abuse laws.

I have written critically of the argument that the state’s child abuse laws are legally relevant to the Sandy Hook investigation.  In particular, I have questioned the State’s Attorney’s argument that the Sandy Hook 911 calls contain information “relative to a child abuse investigation,” as that phrase is defined under state law.  Footnote 12 is a continuation of this highly questionable legal argument.

One of the problems with this argument is that is has no logical end point.  If the 911 calls contain information relative to a child abuse investigation, again as defined under state law, and if such information is exempt from public disclosure, then why isn’t the State’s Attorney’s summary report in its entirety subject to non-disclosure for the same reason?  Doesn’t everything in the report relate to a child abuse investigation, as the State’s Attorney interprets that phrase?

In footnote 12, the State’s Attorney recognizes this problem with his own argument.  He writes:

To conclude that all such information, including the basic facts of the incident itself is confidential would prohibit even the disclosure of children being killed.  Such an interpretation would be unworkable and is not taken here.  It is concluded that the C.G.S. Sec. 17a-101k(a) is  applicable in the present case and will be applied in the manner described.

In other words, the State’s Attorney said that he will decide what information relevant to “child abuse” he will include in the report and what information relevant to “child abuse” he will not include.

Superior Court Judge Eliot Prescott, who is hearing the FOIA case involving the Sandy Hook 911 calls, will soon issue his ruling on the State’s Attorney’s interpretation of the state’s child abuse laws.  I strongly suspect that he will firmly reject them.

Let me conclude with one last point.  I have been critical of the Danbury State’s Attorney in several posts on this blog.  I want to be clear that I have no personal or professional “axe” to grind with Mr. Sedensky.  By all accounts he is a dedicated public servant who has served his state with distinction and honor.  But no public servant is above or beyond criticism (nor am I, for that matter), provided, of course, that the criticism is offered respectfully. I hope my criticisms have satisfied that standard.