Lessons Learned, Lessons Forgotten–The Sealing (And Unsealing) Of The Sandy Hook Search Warrants

After a three-month delay due to a judicial sealing order, state officials last Thursday released five slightly redacted search warrants related to the Sandy Hook Elementary School tragedy.  Having reviewed the disclosed information, it seems to me that most of it could have been revealed months ago without jeopardizing the investigation (or causing unnecessary pain to the families of the victims).   It is fair to ask whether the legal predicates to sealing the search warrants and supporting affidavits in their entirety were satisfied.  I think not.

In 2003, a controversy erupted when the Connecticut Law Tribune learned that certain Superior Court judges were making cases disappear–literally–from the docket.  Subsequently, the Hartford Courant and the Law Tribune successfully sued the Judicial Branch in federal court, arguing that the public had a First Amendment and common law right of access to docket sheets.  (I represented the Law Tribune in that lawsuit.  The late, brilliant Ralph Elliot represented the Courant.)  Under acting Chief Justice David Borden, and then Chief Justice Chase Rogers, the Judicial Branch began an enormous, and in my opinion highly successful, effort to improve the transparency of judicial operations.

One of the lessons learned from the super-secret sealing controversy was this: Before a judge can seal a judicial document or close a courtroom to the public, she must make specific factual findings, on the record, that show why the need for secrecy outweighs the public’s interest in access and disclosure.  The Judicial Branch enshrined this requirement in its own rules of procedure (Practice Book sections 11-20 and 11-20A (civil cases) and 42-49 and 42-49A (criminal cases)).  Although reflected in the Practice Book, this requirement is constitutional in nature and long predated the 2003 controversy.  See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”)

Unfortunately, this lesson appears to have been forgotten in the Newtown case.  In its December 27, 2012 order granting the Danbury State’s Attorney’s motion to seal the search warrants, the Superior Court wrote simply this: “The court finds that due to the nature and circumstances of this case and the ongoing  investigation, the State’s interest in continuing nondisclosure substantially outweighs any right to public disclosure at this time.”

That is a conclusory statement, not an articulation of specific factual findings that are constitutionally required to justify nondisclosure.

The public, including the General Assembly, has been clamoring for information about the Sandy Hook shooting, not because of a prurient interest in the details (although there are certainly some individuals with such an interest), but because information is necessary in order to make intelligent decisions about how to respond to the tragedy, particularly with respect to gun control and mental health legislation.  The Superior Court’s conclusory sealing order, while no doubt well-intentioned and made in good faith, interfered with that essential democratic objective.

I propose a remedy to address future sealing orders that lack the specific factual findings the federal constitution and the Practice Book require: The appellate tribunal should deem them per se invalid.  To be clear, I am not suggesting that the parties or court personnel ignore a judicial sealing order without such findings.  I am suggesting that if a sealing order is appealed (and Practice Book section 77-1 currently provides for expedited appeals of such orders–although not in cases involving the sealing of search warrants), and if the order lacks the necessary findings, the Supreme or Appellate Court should summarily hold, without need of oral argument, that the sealing order is null and void.  The reviewing court can retain jurisdiction over the appeal, yet remand the case with direction to the trial judge to articulate the required findings (subject to further appellate review) or deny the motion to seal.

Superior Court judges do not like to be reversed, especially summarily.   The proposed procedure will create an incentive for judges to make the legally required findings in the first instance, and thereby encourage them to think hard about whether the situation at hand truly justifies overriding the presumption of public access.

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