Editorial: Prosecutors Shouldn’t Be Hiding Crime Records

The following editorial appeared in the Connecticut Law Tribune.  It is republished here with the permission of the Trib.

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Prosecutors Shouldn’t Be Hiding Crime’s Records

December 17, 2013

Danbury prosecutor Stephen Sedensky and Michelle Cruz, a former prosecutor and State Victim Advocate, have recently been talking up the need to protect Newtown survivors from sights or sounds that bring back the events of that horrifying day.

Sedensky had been working to block the release of the 911 calls from Sandy Hook Elementary School. Cruz is avidly supporting a new exception to the Freedom of Information Act for crime scene videos and photographs. The measure was engineered in the last two weeks of the legislative session, without any public hearing, with support and assistance from the offices of Gov. Dannel Malloy and Chief State’s Attorney Kevin Kane. It is currently being reworked by a legislative task force.

In these battles, prosecutors are positioning themselves as advocates for the families of the victims, taking an adversarial stance against the media, the interested public, and open records laws.

This is certainly outside the prosecutor’s basic role – the purely public one.

At their best, our state prosecutors are representing the collective social interest of the people of Connecticut, bringing meritorious criminal cases in the name of the state. Their job is to fairly impose the legislatively-created criminal laws through the state court framework – an essential function that is empowered and legitimized by its highly public nature.

If they do their job right, prosecutors can never lose. When a criminal trial is conducted competently and fairly, an acquittal for a defendant is not a loss for the prosecutor, it’s a victory. It’s an example of the system operating as it was designed.

Our prosecutors derive their authority from the people of the state of Connecticut. They are working for all of us — not just individuals directly injured by a crime.

There are plenty of lawyers who make a living advocating or lobbying for some subset of the public, serving private civil clients and interest groups. But this isn’t a prosecutor’s job.

That’s why it is unseemly for them to lend their prestige to a campaign to suppress public access to the documentary records and facts surrounding criminal incidents. Those records include 911 tapes, crime scene photographs and videos. For one thing, hiding this information makes it that much more difficult for the public to evaluate law enforcement’s response to crime-like activity. The public, which has the ultimate control over the quality of our criminal justice system, can’t increasingly be kept in the dark.

That, unfortunately, is the trend. When it was created 40 years ago, Connecticut’s Freedom of Information Act was regarded as the nation’s best. But it has been whittled away by 27 exemptions and weakened by court decisions. One recent study by Arizona professor David Cuillier has found that Connecticut’s government transparency, based on a dozen open government criteria, has drifted to 25th among the states.

In October, Cuillier, who is also the president of the Society of Professional Journalists, spoke to the legislative task force that is considering a permanent ban on crime scene photos and certain 911 tapes. If this new FOI exemption is added permanently, Cuillier says Connecticut will drift downward into what he calls the “dark states.”

Fortunately, we have courts that can keep the lights on, and protect what remains of the Freedom of Information Act. That was demonstrated recently. In November, Sedensky argued to New Britain Superior Court Judge Eliot Prescott that the Newtown 911 tapes should be suppressed. Sedensky raised creative exemption theories to contend the Associated Press and the public is not legally entitled to hear the tapes.

One was that the 911 callers were making a confidential report of child abuse. Another was that the callers were like witnesses who required anonymity for their own safety. The judge said the latter bordered on the frivolous, and in a carefully-reasoned decision, ordered the release of the 911 tapes.

Most recently, Hartford lawyer and former victim advocate Cruz, in a Law Tribune opinion piece, has contended that the FOI act injures crime victims because the press uses the law to pointlessly invade their privacy. Her provocative charge is a string of generalities and not backed up by a single real-life example.

Cruz implies that the press or the public has used the FOI to obtain crime scene photos that wind up on the Internet. Daniel Klau, the president of the Connecticut Foundation For Open Government, has found otherwise. First Amendment lawyer Klau teaches a course on privacy law at the University of Connecticut School of Law. His research determined that there has not been a single instance of crime scene photos being obtained through FOI and winding up on the web. Not from the Connecticut Lottery shooting. Not from Cheshire. Not from the Manchester Distributors rampage.

This suggests that the new Freedom of Information exemption targeting crime scene photos is a remedy in search of a problem.

It’s easy to understand that lawmakers yearn to shield Newtown survivors from new reminders of the horror. Newtown’s victims have unquestionably suffered more than enough. But to respond by hiding all homicide scene photos and 911 tapes, is ill-advised and destined to yield unintended consequences.

One unremarked consequence of Newtown is a subtle distortion of the prosecutorial role.

The Newtown tragedy has invited state prosecutors to become self-appointed champions of the peace and quiet of victims and families, pushing for more secrecy and less accountability. Compelling as it is, this is an invitation they should decline

Law Tribune Editorial Board chair Joette Katz recused herself from both the discussion and the vote on this editorial.

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For my previous posts on this and related issues, click here.

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