Monday, October 29, 2007

Is the Connecticut Judiciary going to "seal" a case of murder to protect police?

The below in pdf form found [here]

The crux of the below case [found here]

[click here] for Steven G. Erickson youtube.com videos

THIS OPINION IS SUBJECT TO REVISIONS AND EDITORIAL CHANGES, NOT OF A SUBSTANTIVE NATURE, AND CORRECTIONS OF A TECHNICAL NATURE PRIOR TO PUBLICATION IN THE CONNECTICUT LAW JOURNAL.
IN RE JUDICIAL INQUIRY NO. 2005-02

Flynn, C. J., and Bishop, DiPentima, McLachlan and Gruendel, Js.
Argued September 6 ⎯ officially released October 25, 2007

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GRUENDEL, J. Before us is a petition for review of the order of the panel of judges appointed pursuant to General Statutes § 54-47b (4) to receive applications for investigations into the commission of crimes (panel) denying the request for disclosure filed by the state of Connecticut (state). For the reasons that follow, we grant review, reverse the determination of the panel and remand the matter for further proceedings.

The facts are undisputed. In the fall of 2005, John Connelly, state's attorney for the judicial district of Waterbury, filed with the panel an application for an investigation into the commission of a crime stemming from the shooting death of Jashon Bryant on
1 October 25, 2007, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

May 7, 2005. The panel approved the application and the Honorable George N. Thim, a judge of the Superior Court, was appointed as an investigatory grand jury. Pursuant to General Statutes § 54-47e, both the application for the investigatory grand jury and a copy of the panel's order thereon were sealed. In addition, the original order and a copy of the application were transmitted to the investigatory grand jury, as required by General Statutes § 54-47d (b).

Judge Thim thereafter conducted an investigation, at the conclusion of which he issued a report which concluded that there was probable cause to believe that the petitioner, Hartford police officer Robert Lawlor, committed a crime.2 On that basis, an arrest warrant signed by the court, Damiani, J., subsequently issued that charged the petitioner with one count of manslaughter in the first degree in violation of General Statutes § 53a-55a (3) and one count of assault in the first degree in violation of General Statutes § 53a-59 (5). The petitioner was arrested on June 22, 2006.

On June 14, 2007, the state filed with the panel a request for disclosure of "a copy of the application for the appointment of a grand juror filed by [Connelly] and a copy of the order issued by the [panel] appointing the [investigatory grand jury]." That filing concluded that "it is requested that for the purpose of full and fair discovery, such material be ordered unsealed for viewing by this office and the [petitioner]." In denying

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The ultimate task of the investigatory grand jury is to make a finding to the court; it cannot indict. As our Supreme Court has explained, "[i]nvestigative grand juries neither try nor condemn nor accuse; they only inquire and report." In re Investigation of the Grand Juror, 188 Conn. 601, 605, 452 A.2d 935 (1982). "The inquiry . . . is made by an independent judicial officer and is investigatory and nonadjudicative. An inquiry is conducted and a report is made to the court. The inquiry has no other purpose or function . . . ." State v. Moynahan, 164 Conn. 560, 566, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).
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that request, the order of the panel stated: "[The] request for disclosure is denied, pursuant to § 54-47e, which specifically requires that any application filed with the panel and any order authorizing the investigation 'shall be sealed.'"

From that judgment, the petitioner appealed to this court by way of a petition for review of the panel's order.3 The panel subsequently filed a motion to intervene, which we granted. The petitioner, the panel and the state all have submitted memoranda of law, which present three issues for our consideration. They are: (1) whether this court lacks subject matter jurisdiction over the petition for review; (2) whether the petitioner is aggrieved by the order of the panel; and (3) whether the petitioner is entitled to disclosure of the requested materials.4 We address each in turn.

I
The panel contends that this court lacks subject matter jurisdiction to consider the petition for review. Specifically, it claims that "the Investigatory Grand Jury Act makes no provision for appellate review of the panel's order denying the state's request for disclosure." Both the state and the petitioner disagree, maintaining that § 54-47g (a) contains such a provision.
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks
3Sealed exhibits from the investigation were filed with this court. We have not unsealed those exhibits and, therefore, are unaware of precisely what materials they contain.
4The petitioner also argues that he is entitled to disclosure of the requested materials under his state and federal constitutional rights to exculpatory information and due process, and in order to properly move to suppress the evidence produced by the investigatory grand jury. In light of our disposition of the third issue in this appeal, we do not address those claims.

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omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). It involves a question of law over which our review is plenary. Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). Jurisdiction of the subject matter "cannot be waived or conferred by consent either in the trial court or [on appeal]. . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. . . . Moreover, whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to previous rulings." (Citations omitted; internal quotation marks omitted.) In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning & Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006).

Section 54-47g (a) provides: "Within sixty days of the conclusion of the investigation, the investigatory grand jury conducting such investigation shall file its finding with the court of the judicial district designated by the Chief Court Administrator pursuant to subsection (a) of section 54-47d, and shall file a copy of its finding with the panel and with the Chief State's Attorney or a state's attorney if such Chief State's Attorney or state's attorney made application for the investigation. The stenographer shall file any record of the investigation with the court of the judicial district designated by the Chief Court Administrator pursuant to subsection (a) of section 54-47d and the panel and the Chief State's Attorney or a state's attorney, if such Chief State's Attorney or state's attorney made application for the investigation, shall have access to such record upon request made to the clerk of the court without a hearing. Such finding shall

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state whether or not there is probable cause to believe that a crime or crimes have been committed. Except as otherwise provided in this section, any part of the record of the investigation not disclosed with the finding pursuant to subsection (b) of this section shall be sealed, provided any person may file an application with the panel for disclosure of any such part of the record.

Upon receipt of such application, the panel shall, after notice, hold a hearing and the panel, by a majority vote, may disclose any such part of the record when such disclosure is deemed by the panel to be in the public interest, except that no part of the record shall be disclosed which contains allegations of the commission of a crime by an individual if the investigatory grand jury failed to find probable cause that such individual committed such crime unless such individual requests the release of such part of the record.

Any person aggrieved by an order of the panel shall have the right to appeal such order by filing a petition for review with the Appellate Court within seventy-two hours from the issuance of such order." Simply put, § 54-47g (a) sets forth the mechanism by which "any person" may seek disclosure of "any part of the record" of the investigatory grand jury, as well as the right of an aggrieved person to appeal to this court in the event that the panel denies the request for disclosure.

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The panel claims that the order at issue in the present appeal falls outside the ambit of § 54-47g (a). Its argument is two-fold. First, it insists that the requested

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Accord Practice Book § 78-1, which provides that "[a]ny person aggrieved by an order of a panel or an investigatory grand jury pursuant to General Statutes § 54-47g may seek review of such order by filing a petition for review with the appellate court within seventy-two hours after the issuance of the order. The filing of any such petition for review shall stay the order until the final determination of the petition. The appellate court shall hold an expedited hearing on such petition. After such hearing, the appellate court may affirm, modify or vacate the order reviewed."

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documents are not part of the record of the investigatory grand jury. Second, the panel posits that § 54-47e forbids disclosure of those documents at any time and under any circumstances.

A THE RECORD OF THE INVESTIGATORY GRAND JURY

The panel claims that the application for the investigatory grand jury and its order thereon are not part of the record of the investigatory grand jury. Because § 54-47g (a) charges the stenographer with the responsibility to "file any record of the investigation," the panel argues that the record is limited to testimony and exhibits presented to the investigatory grand jury. Our examination of the relevant statutes indicates otherwise.

Unlike other terms concerning the investigatory grand jury, the term "record" is not defined in General Statutes § 54-47b. In the absence of a statutory definition, "it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) State v. Boyd, 272 Conn. 72, 79 n.5, 861 A.2d 1155 (2004).

Black's Law Dictionary (7th Ed. 1999) defines the record as "the official report of the proceedings in a case, including the filed papers, a verbatim transcript of the trial or hearing (if any), and tangible exhibits." (Emphasis added.) Cf. Practice Book § 61-10 (term "record" includes all trial court decisions, documents and exhibits necessary and appropriate for review). Thus, the term generally has an expansive meaning.

General Statutes § 54-47d (a) provides that, once the panel approves an application for an investigatory grand jury and orders an investigation, the chief court administrator is required to "(1) appoint an investigatory grand jury to conduct the

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investigation, and (2) designate the court location in the judicial district where any motions to quash and any contempt proceedings shall be heard and any findings and records of the investigation shall be filed." (Emphasis added.) Even more significantly, the panel is obligated to "transmit to the investigatory grand jury . . . the original order and a copy of the application filed with the panel." General Statutes § 54-47d (b).

Accordingly, the investigatory grand jury had in its possession the documents requested by the state in the present case. Upon completion of the investigation, the investigatory grand jury is required to "file its finding with the court of the judicial district designated by the Chief Court Administrator . . . and shall file a copy of its finding with the panel . . . . The stenographer shall file any record of the investigation with the court of the judicial district designated by the Chief Court Administrator . . . ." (Emphasis added.) General Statutes § 54-47g (a).

The repeated references to "any record" and the specific legislative mandate that the application and order be transmitted from the panel to the investigatory grand jury at the outset of the investigation persuade us that those materials constitute part of the record of the investigatory grand jury. The statutes do not indicate otherwise.

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The panel's contention that the "record" includes only testimony and exhibits presented to the investigatory grand jury is a restrictive reading of that term. We refuse to impute to the legislature an intent to so limit that term where such intent does not otherwise appear in the language of the statute. Stein v. Hillebrand, 240 Conn. 35, 40, 688 A.2d 1317 (1997). We conclude that the application and order transmitted by the

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The legislative history of the investigatory grand jury act sheds no light on whether the term "record," as it is used therein, encompasses the application for the investigatory grand jury and the panel's order thereon.
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panel pursuant to § 54-47d (b) are part of the record of the investigatory grand jury.

B
GENERAL STATUTES §§ 54-47e and 54-47g

Alternately, the panel claims that § 54-47e forbids disclosure of the application and order at any time and under any circumstances. Section 54-47e provides:

"Any order authorizing the investigation into the commission of a crime or crimes and any application filed with the panel pursuant to section 54-47c or subsection (c) of section 54-47d shall be sealed. The panel shall submit to the Chief Court Administrator a summary of the scope of the investigation, any recommendation as to the court location at which any motions to quash and any contempt proceedings are to be heard and the finding and record of the investigation are to be filed. Such summary shall be public unless the panel determines, by majority vote, that such summary be sealed for purposes of (1) ensuring the public safety of any individual, (2) ensuring that the investigation would not be adversely affected or (3) complying with other provisions of the general statutes or rules of court which prohibit disclosure of such information. Any investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest."

The panel argues that the statute evinces an absolute prohibition by the legislature on the disclosure of applications for an investigatory grand jury and orders thereon.
Before entertaining the merits of that argument, we note that the panel's position presents a question of statutory interpretation, which, as a question of law, is subject to plenary review. Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 166,

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927 A.2d 793 (2007). "The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply." (Internal quotation marks omitted.)

Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 231, 915 A.2d 290 (2007). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. State, 278 Conn. 77, 82, 896 A.2d 747 (2006).

When the meaning is ambiguous, "we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . [O]ur construction of the [act] should make every part operative and harmonious with every other part insofar as is possible . . . . In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result. . . . In the interpretation of a statute, a radical departure from an established policy cannot be

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implied. It must be expressed in unequivocal language. . . . Finally, it is our judicial responsibility in considering a statutory scheme . . . that has obvious and significant gaps and inconsistencies in it, to attempt to make sense of it as much as possible." (Citations omitted; internal quotation marks omitted.) Fredette v. Connecticut Air National Guard, 283 Conn. 813, 821-22, 930 A.2d 666 (2007).

The respective arguments of the parties underscore the ambiguity in the statutory scheme governing the investigatory grand jury. Although § 54-47g (a) permits any person to file an application with the panel for disclosure of any part of the record of the investigatory grand jury, which we have determined includes the application and order, § 54-47e provides that those two documents "shall be sealed." Because the statutory scheme "is difficult to construe with complete consistency"; id., 820; we consider extratextual evidence in resolving the issue before us.

The investigatory grand jury, like the panel, is entirely a creature of statute. See Connelly v. Doe, 213 Conn. 66, 70, 566 A.2d 426 (1989). First enacted in 1941, the statutory scheme governing the investigatory grand jury underwent significant revision two decades ago. As our Supreme Court explained in State v. Rivera, 250 Conn. 188, 736 A.2d 790 (1999): "[T]he legislative genealogy of § 54-47g reveals a distinct trend away from a policy of rigid nondisclosure in grand jury matters. The first statutory provision to include procedures for investigatory grand juries, which was enacted in 1941, allowed the proceedings, testimony and final report to be made public in
the discretion of the trial court. . . . In 1985, the legislature significantly expanded the statutory provisions relating to investigatory grand juries for the purpose of streamlining the grand jury process, increasing the accountability and openness of such

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investigations and expanding public access to the findings and records. . . . In 1987, the legislature further increased the accessibility of grand jury materials by adding a provision that allowed state's attorneys to receive the record and transcripts of grand jury proceedings upon request and without a hearing. . . . In 1988, the legislature cut back even further on the confidentiality of the grand juror's findings and conclusions. Public Acts 1988, No. 88-345 (P.A. 88-345), provides in relevant part that '[t]he finding of the investigation shall be open to public inspection and copying . . . seven calendar days after it has been filed, unless within that period the chief state's attorney or a state's attorney . . . [requests] that a part or all of such finding not be so disclosed.

The finding may include all or such part of the record as the investigatory grand jury may determine . . . .' This amendment, in effect, established a rebuttable presumption of disclosure . . . . In the same public act, the legislature also authorized 'any person' to 'file an application with the [grand jury] panel for disclosure of any . . . part of [a grand jury] record' . . . and empowered the panel to grant such application if, after notice and a hearing, it determines, by a majority vote, that disclosure would be in the public interest. . . . This development of § 54-47g demonstrates that, over time, the legislature has provided for increased disclosure of grand jury proceedings and testimony. Recognizing the purposes behind the common-law presumption regarding the confidentiality and secrecy of grand jury proceedings, the statute favors disclosure after the grand jury has completed its investigation." (Citations omitted; internal quotation marks omitted.) Id., 203-206.

At first blush, that documented policy favoring disclosure seemingly conflicts with the mandate of § 54-47e that the application and order shall be sealed. A closer

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examination reveals otherwise.

The statutory scheme surrounding the investigatory grand jury delineated in General Statutes §§ 54-47a through 54-47h proceeds in a chronological manner. Section 54-47c details the procedures by which an application for an investigation is submitted and approved, while § 54-47d concerns the appointment, duration and scope of the investigatory grand jury. Next comes § 54-47e, which by its plain language, prefaces both the actual investigation, the conduct of which is governed by General Statutes § 54-47f, and the resulting finding of the investigatory grand jury filed pursuant to § 54-47g.

Because § 54-47e prefaces the actual investigation, one justification of the mandate requiring the sealing of the application and order contained therein is simply an affirmation that, prior to the conclusion of the investigation, secrecy is of paramount concern. Our Supreme Court has emphasized the importance of safeguarding the confidentiality of grand jury proceedings and recognized the significance of secrecy

"when it was necessary to further the purposes of grand jury confidentiality."

State v. Rivera, supra, 250 Conn. 202; see also State v. Canady, 187 Conn. 281, 287, 445 A.2d 895 (1982) (traditional secrecy of grand jury proceedings well entrenched in common law). At the same time, our Supreme Court has observed that "[w]hen the investigation has been completed, the persuasive force of the arguments in favor of secrecy are greatly diminished." State v. Rivera, supra, 203. Consistent with that critical distinction, the sealing mandate in § 54-47e serves to protect the confidentiality of a pending investigation of the grand jury.
Notably, § 54-47e is directed at the conduct of the panel. The statute directly preceding it indicates that not one, but two copies of the application and order are

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promulgated. See General Statutes § 54-47d (b). One is transmitted to the investigatory grand jury; the other is retained by the panel. A fair reading of § 54-47e is that the legislature, mindful that the investigatory grand jury obtains copies of the application and order, inserted the sealing provision in that statute as a check on the panel's conduct to further safeguard the work of the investigatory grand jury.

In that vein, it is significant that § 54-47g (a) is directed at the concluded investigation. The provision permitting any person to file an application with the panel for any part of the record of the investigatory grand jury pertains to the investigatory grand jury's copies of the application and order, not those of the panel. Moreover, § 54-47g (b) provides in relevant part that the finding of the investigation

"may include all or such part of the record as the investigatory grand jury may determine, except that no part of the record shall be disclosed which contains allegations of the commission of a crime by an individual if the investigatory grand jury failed to find probable cause that such individual committed such crime unless such individual requests the release of such part of the record."

As the application and order transmitted from the panel to the investigatory grand jury pursuant to § 54-47d (b) form part of the record before it, § 54-47g (b) authorizes the investigatory grand jury to include those materials in its finding.7 The panel's contention that § 54-47e prohibits disclosure of the application and order at any time and under any circumstances yields a bizarre result in light of that statutory authorization. It is axiomatic that we decline to read statutes so as to reach bizarre or absurd results. State v. Rivera, supra, 250 Conn. 200.

7
The finding of the investigatory grand jury generally is made public. See General Statutes § 54-47g (b).

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Section 54-47e, which provides that the application and order "shall be sealed," contains another crucial provision: "Any investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest." That provision comports with the policy favoring disclosure discussed by Rivera. Moreover, that provision complements the disclosure provision contained in § 54-47g (a).8 Both reflect the legislative determination that disclosure is warranted when the panel, in its discretion, determines that it is in the public interest.

"In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language." (Internal quotation marks omitted.)

Fredette v. Connecticut Air National Guard, supra, 283 Conn. 822. The policy underlying § 54-47g is one favoring disclosure once the investigation is concluded. As our Supreme Court stated in Rivera, "the statute favors disclosure after the grand jury has completed its investigation." State v. Rivera, supra, 250 Conn. 206. Had the legislature wanted to prohibit disclosure of the application and order at any time and under any circumstances, it could have explicitly and unequivocally done so, as it has elsewhere in that statute. See General Statutes § 54-47g (b) ("no part of the record shall be disclosed which contains allegations of the commission of a crime by an

8
General Statutes § 54-47g (a) provides in relevant part: "Except as otherwise provided in this section, any part of the record of the investigation not disclosed with the finding pursuant to subsection (b) of this section shall be sealed, provided any person may file an application with the panel for disclosure of any such part of the record. Upon receipt of such application, the panel shall, after notice, hold a hearing and the panel, by a majority vote, may disclose any such part of the record when such disclosure is deemed by the panel to be in the public interest . . . ."

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individual if the investigatory grand jury failed to find probable cause that such individual committed such crime unless such individual requests the release of such part of the record"). That it has not informs our analysis.

Our aim is to interpret §§ 54-47e and 54-47g so as to make every part operative and harmonious with every other part insofar as is possible. Fredette v. Connecticut Air National Guard, supra, 283 Conn. 822. We therefore conclude that the application for the investigatory grand jury and its order thereon must be sealed at the outset of the investigation and remain so unless, following the conclusion of the investigation and the filing of the finding and record of the investigatory grand jury, a majority of the panel deem their disclosure to be in the public interest.

In the present case, the state filed with the panel an application for disclosure of part of the record of the investigatory grand jury pursuant to § 54-47g (a). When the panel denied that request, the petitioner filed a petition for review with this court, as directed by that statute. Accordingly, this court is vested with jurisdiction of the subject matter.

II
The state raises the question of whether the petitioner is aggrieved by the order of the panel denying the request for disclosure.9 Aggrievement implicates a party's standing. In re Allison G., 276 Conn. 146, 156, 883 A.2d 1226 (2005). "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of

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Although the state questions whether the petitioner is classically aggrieved, it nonetheless concludes that "[i]n sum, the [petitioner] may be in the best position to challenge the panel's determination that it does not have to disclose the application and order." (St. Mem. 16)

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substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Two broad yet distinct categories of aggrievement exist, classical and statutory

. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share

. . . . Second, the party must also show that the . . . decision has specially and injuriously affected that specific personal or legal interest. . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.

In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 201-202, 896 A.2d 809 (2006).

Section 54-47g (a) provides in relevant part that "[a]ny person aggrieved by an order of the panel shall have the right to appeal [the] order [of the panel on the request to disclose] by filing a petition for review with the Appellate Court within seventy-two hours from the issuance of such order." The petitioner is such a person. He was the subject of the investigation. The finding of the investigatory grand jury concluded that that there was probable cause to believe that he committed a crime. Moreover, on the basis of that finding, an arrest warrant issued and the petitioner's arrest followed.

In the request for disclosure, the state asserted that the requested materials

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should be unsealed "for the purpose of full and fair discovery."10 The petitioner agrees. In his reply memorandum, he states: "[E]ach allegation of the arrest warrant application is one produced by the investigatory grand jury. If the petitioner is able to demonstrate that the investigatory grand jury was illegal in its creation or acted in excess of its mandate, the petitioner would be able to challenge the evidence gathered. . . . Whether by motion to dismiss, motion to suppress, motion in limine, use as impeachment evidence or by any other use of exculpatory or inconsistent evidence, the only way a defendant can meaningfully access his statutory and constitutional remedies would be to examine the application and order."

11 (Pet.Rep.Mem.7)
As already noted, the legislature has provided for increased disclosure of grand jury proceedings and testimony. See State v. Rivera, supra, 250 Conn. 202. Permitting petitions for review to this court was such an amendment to that statutory scheme. "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.)

West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 25, 901 A.2d 649 (2006). The petitioner faces trial following an arrest predicated on the investigatory grand jury's finding that probable cause existed to believe that he committed a crime. As such, we conclude that he is aggrieved under § 54-47g (a).

10Assuming arguendo that the requested materials are among the sealed exhibits filed with this court, we repeat that we have not examined those exhibits. See footnote 2. As a result, we cannot evaluate the content of those materials or whether they implicate the petitioner's state and federal constitutional rights to exculpatory information and due process, as would the panel in evaluating whether their disclosure is in the public interest.
11Although it presently is not necessary to evaluate the merits of those assertions, they present a colorable claim that the documents could be useful to the defendant's defense.

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III
The remaining issue is whether the petitioner is entitled to disclosure of the requested materials. That question is not for this court to resolve.

When a request to disclose part of the record of the investigatory grand jury is filed pursuant to § 54-47g (a), that statute requires the panel to hold a hearing thereon to ascertain whether disclosure is in the public interest.12 The panel did not comply with that statutory requirement in the present case. Nevertheless, it remains the task of the panel to make that factual determination. "It is axiomatic that it is not the function of this court to find facts."

Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 96 Conn. App. 326, 335, 901 A.2d 49 (2006). Moreover, "[the] panel is in a better position to determine what the public interest requires in this case because of its prior familiarity with the origin and scope of the judicial inquiry ordered by it." In re Grand Jury Investigation by Judge Barry R. Schaller, 20 Conn. App. 447, 451, 567 A.2d 1255 (1990). Consequently, in instances in which the panel failed to conduct the requisite hearing, this court has remanded the matter to the panel for that hearing. See id.; In re Grand Jury Investigation by Judge Hugh C. Curran, 19 Conn. App. 230, 234, 561 A.2d 974 (1989).

The matter is remanded to the grand jury panel for a determination of whether the public interest requires disclosure, and, if so, for a further determination of those to
12"In order for a petitioner to make the required showing to justify the disclosure of the finding and record of a grand jury investigation, a hearing is necessary. A petitioner cannot meet the burden of showing that disclosure is in the public interest without a forum in which to do so." In re Grand Jury Investigation by Judge Hugh C. Curran, 19 Conn. App. 230, 234, 561 A.2d 974 (1989).

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whom disclosure should be made, and the conditions, if any, that should be imposed.
"In this opinion the other judges concurred."
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Saturday, October 20, 2007

A Sealed Case hiding massive official corruption?


Is former Connecticut Governor John G. Rowland really saying, "I tell lies this big"?


Rowland: Case Sealed For Kids' Sake

Associated Press (The Hartford Courant)
October 18, 2007

WATERBURY (Connecticut) - Former Gov. John G. Rowland asked to have his divorce records sealed more than a decade ago to protect his children, according to documents released Wednesday.

Rowland and his ex-wife, Deborah, divorced in 1994.

Their case is one of hundreds of family and civil cases being reviewed by the judicial branch to determine whether they were improperly sealed and whether some information should be available for public review.

The case file itself was not released in the Rowland divorce, only the docket sheets and the motion to seal the case.

Rowland, with the agreement of his former wife, asked in 1993 to have the records from his divorce file sealed. Judge Dennis Harrigan granted the motion.

The docket sheet for the case also includes two motions for restraining orders, but it's not clear who asked for them or why.

The review of sealed cases was announced in May by newly appointed Supreme Court Chief Justice Chase T. Rogers, who said it would balance the rights of parties in the cases with the need for openness and transparency in the judiciary.

About 500 family and civil cases in Connecticut courts were sealed under judges' orders before July 2, 2003, when a rule governing that practice was changed.

Those cases, known as "Level 2" files, are different from "Level 1" cases known as "super-sealed." The super-sealed cases were so secret that court officials were not allowed to confirm their existence and they were removed from all court dockets.

Dockets in many of those cases have since been posted on the Judicial Branch's website, and the same will occur with "Level 2" files if the newly launched review deems it appropriate.

Rowland, who served 10 months in federal prison, resigned three years ago after admitting he accepted more than $100,000 in private flights and repairs to his Litchfield cottage from state contractors.

Copyright © 2007, The Associated Press

* * * *

Steven G. Erickson's comment in the Hartford Courant forum:

The sealed Rowland case might reveal a whole string of domestic disturbances and abuse.

If police were called frequently to the Rowland household and nothing was done, what does that say?

Did Rowland owe top cops in Connecticut favors? Did police under Rowland and now Rell get everything on their grocery list? Police in Connecticut seem to have an unlimited budget, keep growing even though Connecticut population is decreasing, and seem to have no effective internal affairs even for officers abused by other officers.

If the court was sealing cases to help hide Rowland's indescretions, alleged beatings of his first wife, and other cover ups by police of Rowland's illegal behavior what does that say?

If you speak out publicly, stating your name, and want ethics and public service in the Connecticut courts and with police expect to be investigated, arrested, and put in prison.

All that I have known within the system and regular citizens face massive retaliation for questioning the real authority in Connecticut, the police and the Mafia of Judges.

Go to an elected official about police, the elected official is required to contact the police liaison and the Commissioner of State Police is often notified. The citizen is then under investigation and followed around by police.

So if Rowland and now Rell weren't part of the blue wall of silence of the police union and Mafia of Judges in Connecticut, they would have been railroaded out of office.

The only reason Rowland did a year is that the amount of money he took, he probably didn't payback a favor to someone that forked out hundreds of thousands and got nothing in return. And Rowland only got a slap on the wrist for his massive crimes so that he would not sing on the Feds, other officials, police, judges, Connecticut big business, and organized crime wouldn't be named when the something hit the fan.

State Police in Connecticut were out confiscating evidence and threatening PIs that were collecting evidence on Rowland's alleged mistress and former DCF head, Kristine Regaglia.

Judges that could influence Rowland's case from behind the scenes were probably appointed by Rowland.

Rowland as a criminal going through the "justice system" in Connecticut claimed to be penniless. Now an inmate released on society he has a $500,000 home. Who is kidding who?

If you go to your elected officials about this type of corruption, you too, can end up arrested, losing your home, family unity, job, and the sum total of your life's work just for asking questions and exposing the circus of Connecticut corruption.

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Monday, October 15, 2007

War on Free Speech in Connecticut


AVERY DONINGER, a senior at Lewis S. Mills High School in Burlington, speaks to reporters Sunday at the Litchfield Inn in Litchfield, where a fundraiser/rally was held in support of her free speech lawsuit against Region 10 school district officials. (CLOE POISSON / October 14, 2007)

Backing Her Stance
Eclectic Mix Of Supporters Rallies Behind High School Senior's Free-Speech Crusade


By DAVE ALTIMARI | Courant Staff Writer
October 15, 2007

LITCHFIELD (Connecticut) - Avery Doninger didn't want to be a First Amendment champion. All she wanted was to be the secretary for the senior class at Lewis S. Mills High School.

But when she called school officials "douchbags" on one of her blogs, they barred her from running for the office. Rather than back down, Doninger fought back, filing a federal lawsuit claiming her right to free speech had been violated.

As a result, she has become a poster child on Internet sites frequented by teenagers all over the country, and, for some local and national media, an example of an individual fighting the establishment.

As her case heads to the U.S. 2nd Circuit Court of Appeals in Manhattan later this year, some of her friends, her family, and author Wally Lamb gathered Sunday at the Litchfield Inn for an event that was part fundraiser, part rally for her cause.

The eclectic mix of 50 to 60 people at the Poets & Writers for Avery gathering included several poets from Connecticut universities and a few teenage rock bands.

All of the poets read pieces or told stories symbolizing Doninger's plight.

Some people wore buttons that said, "First Amendment, Use It Or Lose It," while others wore black T-shirts that said, "Team Avery, We Refuse To Be Silenced."

"I never expected that this was going to end up being so big," Doninger, of Burlington, said between announcing bands and pulling raffle tickets to raise money for her appeal.

But she has no regrets about suing Region 10 school district officials, even though a federal judge in September denied her attempt to get an injunction that would have forced school officials to recognize her as the winner of the race for class secretary.

"I have a lot more appreciation for my rights and for the First Amendment," Doninger said. "This is an issue that needs to be addressed."

Doninger's problems began last April, when school officials decided to cancel a battle of the bands concert called "Jamfest." Doninger, who was the junior class secretary at the time, wrote on her Internet blog that the concert had been canceled due to the "douchbags"in the central office. In the same posting, she encouraged others to write or call Region 10 Superintendent Paula Schwartz "to piss her off more."

Principal Karissa Niehoff told Doninger to apologize to Schwartz, show her mother the blog entry and remove herself from seeking re-election as class secretary. Doninger agreed to the first two points, but refused to withdraw her candidacy.

Niehoff then told Doninger she would not provide an administrative endorsement of her candidacy, barring Doninger from the race, according to court documents.

Even though her name was not on the official ballot, some students wrote her name in anyway. She was not among the winners when they were announced, though school officials did not tell her how many votes she had received.

Only after filing a Freedom of Information request with the Region 10 Board of Education did Doninger and her supporters learn that more than 50 people had submitted write-in ballots for her. She received more votes for secretary than the candidate school officials had declared the winner.

"All I want is for my win to be acknowledged and for school officials to recognize that what they did was wrong," Doninger said.

She said there haven't been any problems at school, so far, as her notoriety has increased because of the lawsuit against school officials, including the high school principal.

"A lot of the teachers ask me how my case is going as I walk down the halls," Doninger said. "Kids come up to me all of the time and wish me luck."

In his ruling, U.S. District Court Judge Mark Kravitz wrote that Doninger had not shown "substantial likelihood" that she would succeed in challenging the constitutional validity of her punishment.

But Kravitz's ruling didn't address the biggest issues that Doninger's case presents: what kind of expression schools can regulate, whether schools can sanction behavior outside school, and just what can be considered on- or off-campus in the Internet age.

"The whole issue of blogs and off-campus e-mails is coming to the fore. Courts themselves are kind of feeling their way along," Kravitz said. "These are difficult issues."

It's an issue that eventually may end up at the U.S. Supreme Court, meaning that Doninger's time in the spotlight may be far from over.

Contact Dave Altimari at daltimari@courant.com.

Copyright © 2007, The Hartford Courant

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Saturday, October 13, 2007

US Marine arrested for being stabbed in Connecticut



Stephen Murzin came home to Connecticut after serving in the US Marines. He witnessed Phillip Inkel being beaten in handcuffs at the Colchester, CT, McDonald's Hamburger restaurant for Inkel having witnessed the same 2 Colceshester Connecticut officers making a police misconduct complaint for beating a teen for looking "gansta" having been wearing bagging pants.

Ian Murzin for being the US Marine's brother was choked to death, according to Stephen Murzin, in retaliation for Stephen having made a police misconduct complaint against officers.

More information:
[click here for more background video]

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Monday, October 08, 2007

Eminent Domain is Judicial and Official Abuse

[click here] for a video and more that I shot yesterday

Sunday, October 07, 2007

"In the Interest of Justice", A Documentary Primer



If a top lawyer says the system is broken and needs to be fixed. That says it all. Dr. Richard Cordero is part of a growing number of Americans fed up with the way our American Judicial System is operating and is taking action to reform it.

Dr. Richard Cordero spars with US Federal Judge Ralph Winter on the subject of an American Judiciary run a muck. Francis C. P. Knize testifies also and was the primary editor/producer of the above video. The hearing is shut down when Elena Ruth Sassower asks to speak at the hearing for the national issue of judges judging judges in Brooklyn, NY, US Federal Courthouse.


http://judicial-discipline-reform.org/


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[click here] for Dr. Codero's suggested link from the first comment of this post

This blogger's email:
stevengerickson@yahoo.com

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[click here] for a complete list of my youtube.com videos

Apartheid, Connecticut USA


PAVLOVA STEER, a 15-year-old junior at Bloomfield High School, was one of just three sophomores at the school last year to meet state testing goals in all four subjects. "You can automatically tell, for most students, [schoolwork] is not their first priority," said Steer, who takes mostly honors-level courses. (ROSS TAYLOR / October 5, 2007)

Puzzling Racial Gap
By ROBERT A. FRAHM | Hartford Courant Staff Writer [Connecticut]
October 7, 2007

BLOOMFIELD - A generation ago, Bloomfield was heralded as the all-American community. Blacks and whites lived side by side, chasing the American dream of middle-class stability without regard to skin color. There were trimmed lawns and good schools.

Now, Bloomfield operates one of the most racially segregated school systems in the state. Minority students, mainly black children, account for 95 percent of public school enrollment.

And when results were released recently on the state's annual 10th-grade achievement test, this quiet, middle-class suburb found itself confronting a question more often associated with the nation's poorest urban school systems:

Why do black and Hispanic students lag so far behind their white counterparts?

Bloomfield's 10th-graders posted some of the worst results in the state on the annual test of reading, writing, mathematics and science. In a district that had made modest gains in recent years, students this year missed state goals in startling numbers. The results sparked one question after another:

Is it a one-time anomaly?

Is it the exodus of top students to private schools?

Is it a growing number of poor children in the public schools?

Or - in a school system that consists almost entirely of minority students - is it somehow rooted in more profound racial and cultural differences?

Most educators agree that poverty is a powerful underlying cause of the achievement gap. But as experts look at places like Bloomfield, some say that race and culture - apart from income - appear to influence achievement in ways that are not always easily understood.

"The gap is as large among children of the highly educated as it is among the children of the poor," said Harvard University Professor Ronald F. Ferguson, who has conducted extensive studies on the achievement gap.

Lesser Expectations

Poverty is without argument a key factor in academic problems plaguing black and Hispanic children in tough urban centers such as Hartford and Bridgeport.

But the achievement gap also occurs among minority students in middle-class and wealthy suburbs.

On a 2005 nationwide reading test, the gap between black and white high school seniors whose parents were college graduates actually was larger than the gap between blacks and whites whose parents had not finished high school.

Why?

It is one of the most confounding questions confronting America's schools, and Bloomfield is hardly alone.

Sometimes the problem is obscured. At upscale Hall High School in nearby West Hartford, for example, overall test results appeared good this year, but a closer look shows that only 16 percent of black sophomores met the state math goal, compared with 74 percent of white sophomores.

Some experts believe the problem is largely one of expectations - that schools demand less from minority students and channel them into less rigorous courses.

In the predominantly black school system in Maryland's Prince George's County, school Superintendent John Deasy has led an aggressive effort to expand the number of rigorous, high-level courses and to insist that more students enroll in them.

"For children of color, there's more than enough evidence ... [that] there are lower expectations around their performance," he said. "How often do we present [minority] children with role models - who are highly successful, high-powered academic scholars - who look like them?

"I think the answer is, we don't."

Cultural Gaps

Ferguson, the Harvard professor, said he believes other factors, such as family background, cultural differences and child-rearing practices among families of different races can contribute to the achievement gap.

He cites data showing that black elementary school children of various social classes, more often than whites, report watching TV as their chief activity at home. They also report spending less time reading for pleasure than white children do, he said.

And, he said, figures from a federal survey indicate that black kindergartners, including those whose mothers are highly educated, have fewer books in their homes than white children do.

Exactly how any of these factors affect achievement is a matter of debate and - as with most matters involving race - issues such as differing family backgrounds can be difficult to confront openly.

"Achievement gaps are not facts of nature," Ferguson said in an interview published in the Harvard Education Letter last year. "They are mostly because of differences in life experience. We've got to figure out how to get all kids the kinds of experiences that really maximize access to middle-class skills."

In that interview, Ferguson was asked whether focusing on lifestyle factors isn't just a way of blaming the victim. He responded that his motivation is not to assign blame but simply to find ways to reduce the achievement gap.

"I don't care whose fault it is, really," he said. "If it's the case that reading scores could rise if parents pushed their kids to do more leisure reading at home or took the television out of the bedroom, why not do it? Or why not at least tell parents that that's an option. ... I think most parents would want to know."

Pedro Noguera, a professor of education at New York University, said the issue is complex. He said it is clear "there is a substantial amount of evidence that black parents want to see their kids succeed in school."

But, he said, just because students' families have middle-class incomes, that does not guarantee social advantage. Although family incomes may be similar, some families do not have the advantages or stability that comes with inherited wealth or several generations of college education, he said.

"On the face of it, they may not be in the same situation at all," he said.

Another possible factor affecting achievement, Ferguson said, was the rise of an urban youth culture, including hip-hop and rap music, in the late 1980s and early 1990s - about the same time that progress on closing the achievement gap halted.

Across the nation, black and Hispanic students made dramatic academic gains and narrowed the gap throughout the 1970s and 1980s, but progress halted about 1988, and the gap has remained wide since then, Ferguson said.

At Bloomfield High School, Mardi Loman, a reading consultant who teaches review classes for students who failed the 10th-grade test, said some students "aspire to an urban stereotype."

Especially among some boys, schoolwork "is not important," she said.

The Poverty Theory

The answer to understanding Bloomfield's achievement gap also may lie in the town's changing fortunes.

Although Bloomfield is considered a middle-class community, educators and others say the town's schools have seen increasing numbers of foster children, children from single-parent families and children living in poverty.

While Bloomfield's overall median family income grew substantially during the 1990s, the median income of families with children in public schools slipped, according to the state Department of Education. By 1999, the median income for families with children in public schools was $53,448, well below the town's overall median family income of $64,892, according to U.S. Census figures.

"Bloomfield has affluence, but it also has people living on the border of Hartford on Blue Hills Avenue," said James Michel, a school board member and the father of two sons in the school system. He believes the town's scholastic problems are rooted in poverty.

"I really think race has nothing to do with it, absolutely zero," Michel said. "Economics are the biggest reason they are falling behind."

Officials say many families are first-time homeowners, including recent arrivals who are struggling to get by and have less time to monitor schoolwork. The number of low-income students, as measured by school lunch poverty guidelines, has risen to 43 percent, up from 31 percent a decade ago, state figures show.

"This town is not as affluent as Cheshire or Durham," said Loman, the reading consultant at Bloomfield High School. "Whether or not [the 10th-grade test] measures aptitude, [it] definitely measures for economic status."

The school system also may be losing some of its top students. About 15 percent of the town's school-age children attend private schools, well above the 10 percent statewide average. Another 19 percent attend alternative public schools such as magnet and charter schools.

Florence Johnson moved to Bloomfield in 1997 and, by 2002, pulled all three of her school-aged children out of the school system. She sent them to Hartford-area magnet schools.

Schools tried different approaches, made changes in curriculum and generally lacked direction, she said. "They tried too many new things, and then they didn't give them enough time to see if they worked."

Johnson also said some teachers failed to demand enough of students.

"We have people in teaching who don't think some kids are worthy," she said.

Tackling The Problem

Whatever the reasons for the achievement gap, teachers, administrators and parents are pledging to tackle the problem.

Superintendent of Schools David Title speculates that this year's results may be a temporary setback - the result of a sophomore class that had a history of low performance on previous standardized tests.

Title has asked for an item-by-item analysis of the test results.

"We're looking for any clue, any gap ... to help us understand what happened," he said.

On the latest test, boys had far worse scores than girls, especially in reading and writing, the Bloomfield results show. Of more than 160 sophomores who took the state test last spring, only three - all girls - met state goals in all four subjects.

One of those three is 15-year-old Pavlova Steer, who takes mostly honors-level courses.

"You can automatically tell, for most students, [schoolwork] is not their first priority," Steer said. "All they want to talk about is entertainment, their clothes - not `I got 100 on my algebra test.'"

Another ongoing issue in Bloomfield is the steady stream of new arrivals to the schools, including some with limited language skills and educational backgrounds, he said. Of the students who took last spring's 10th-grade test, as many as one-third had arrived in the school system after eighth-grade, he said.

Patricia Davis, whose son, Michael, is a ninth-grader and has been an honor student in the Bloomfield schools, said she was shocked by the recent test scores and wants school officials to make sure parents are involved in tackling the problem.

"There are a lot of parents working two jobs, struggling to get through the day. I think they need to understand you can't let [your children] go," she said. "You've got to stay on top of them."

Experts say the problem begins long before students reach high school or even middle school.

"What I'm pessimistic about is that once kids reach middle school, there's not much you're going to be able to do to close the gaps. ... It's too late in a lot of ways," said David Grissmer, a researcher at the University of Virginia's Center for the Advanced Study of Teaching and Learning.

Citing research showing that much of the gap exists by the time children reach school age, Grissmer said the best hope may be to identify and address problems before children enter kindergarten.

Title agrees.

"My long-term solution is exactly that," he said, alluding to plans for the creation of a new early childhood magnet school in Bloomfield by 2009.

As for the more immediate problem, Title said the district plans to take aggressive steps such as reviewing curriculum, adding before- and after-school classes to bolster skills, and encouraging students to take more challenging courses. The high school this fall also began review classes for students who failed the 10th-grade test, which Bloomfield uses as a graduation requirement.

"I think there are things we can do," Title said. "I'm still an optimist."

Courant Reporter Steven Goode contributed to this story.

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"In the Interest of Justice", The Documentary Series

Francis C.P. Knize is a renowned documentary producer. I am the co-producer and cameraman #2. We plan on exposing injustice in the court system nationally and to see that legislation is passed for judicial accountability. As it is now judges aren't following rules and decide cases as they please. This undermines all that our forefathers intended. By clicking the button below, you would be donating $5. Please donate $5, and we'll continue doing what we are doing, exposing injustice, but in a professionally edited and crafted documentary. The $5 donation will go into Francis C.P. Knize's account for our documentary. We have been in contact with Court TV and other networks. It is up to you to help us get something into production. We are creating real changes in real time, please donate by clicking on button below.

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Here is an example [click here] of Francis' editing, soundtrack, and special effects work meant to show the possible range in an upcoming documentary on what is wrong with the court system in the US and what experts suggest to do to remedy the situation.

Here is some of our raw footage [click here] that we filmed in the last 2 weeks in Brooklyn, New York, at a national hearing debating whether judges should be judging judges.

If you would like to donate by check, the check can be made out to Steven G. Erickson, sent to:
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Saturday, October 06, 2007

Judicial Omerta

Thursday, October 04, 2007

Defending the Right to Be Heard


[click here] for more information on Elena Ruth Sassower's fight for your rights to a better America by fighting for your rights for ethical access and service in American Courts.

Video to be posted on Elena here on this blog in the future.
My email: stevengerickson@yahoo.com

Defending the Right to Be Heard
“Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
First Amendment, U.S. Constitution


On June 28, 2004, Elena Ruth Sassower was sentenced to six months imprisonment in the D.C. Capitol Jail by Judge Brian F. Holeman of the D.C. Superior Court for "disruption of Congress," a federal misdemeanor. Below are details of Sassower's offense, as reported by the Westchester Crusader four days before her sentencing. [click here for more]

It is completely outrageous that she was imprisoned simply for respectfully asking, “Mr. Chairman, there's citizen opposition to Judge Wesley based on his documented corruption as a New York Court of Appeals judge. May I testify?”

There is no Freedom if Judges in Courts can do as they please

Equal Justice Under Law
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Background Case Update More Options

1999 Petition for Recusal
2000 Appeal for Recusal
Attorney Misconduct
Judicial Misconduct
"The ultimate injustice is when the court misstates the facts."

-- Anthony D'Amato (1990)


On Judicial Misconduct and Discipline

WITHOUT MERIT: THE EMPTY PROMISE OF JUDICIAL DISCIPLINE

Elena Ruth Sassower

Judicial independence is predicated on "good faith" decision-making. It was never intended to include "bad-faith" decision-making, where a judge knowingly and deliberately disregards the facts and law of a case. This is properly the subject of disciplinary review, irrespective of whether it is correctable on appeal. And egregious error is also misconduct, since its nature and/or magnitude presuppose that a judge acted wilfully, or that he is incompetent.
How can you make any assessment of how judicial misconduct mechanisms are working unless you reach out to the victims of judicial misconduct who have used them? -- Elena Ruth Sassower

Reprinted by permission of The Long Term View, Massachusetts School of Law, Vol. 4, No. 1, 1997, pp. 90-97. Note: Publication of this critique does not constitute an endorsement of the Center for Judicial Accountability about particular cases.
The most serious misconduct by judges is that which is the least likely to subject them to discipline. It is not what they do in their private lives, off the bench, but what they do on the bench in the course of litigation. The obvious image is the judge who runs his courtroom as if he owns it, who looks down from his elevated bench and treats litigants and their attorneys in an imperious and abusive fashion. But even where a judge is, as he is supposed to be, patient and dignified in his demeanor, every court appearance, just like every written motion, involves a judge ruling on a procedural or substantive aspect of a case. And there are judges who, while presenting a veneer of fairness, are intellectually dishonest. They make rulings and decisions which are not only a gross abuse of discretion, but which knowingly and deliberately disregard "clear and controlling law" and obliterate, distort, or fabricate the facts in the record to do so.
Why would a judge be intellectually dishonest? He may be motivated by undisclosed bias due to personal or political interest. Judicial selection processes are politically controlled and closed, frequently giving us judges who are better connected than they are qualified. And once on the bench, these judges reward their friends and punish their enemies. Although ethical codes require judges to disclose facts bearing upon their impartiality, they don't always do so. They sit on cases in which they have undisclosed relationships with parties, their attorneys, or have interests in the outcome, and do so deliberately because they wish to advantage either one side over another or sometimes themselves.
They exercise their wide discretion in that side's favor. That's the side for whom deadlines are flexible and for whom procedural standards and evidentiary rules don't apply. A common thread running through judicial misconduct cases is litigation misconduct by the favored side. Meanwhile, the other side struggles to meet inflexible deadlines and has its worthy motions denied. In extreme cases, a judicial process predicated on standards of conduct, elementary legal principles, rules of evidence, simply ceases to exist. Intellectual Dishonesty
Every case has many facts, any of which may be inadvertently "misstated" in judicial decisions. But judicial misconduct is not about innocent "misstatement" of facts, and certainly not about peripheral facts. It involves a judge's knowing and deliberate misrepresentation of the material facts on which the case pivots. These facts determine the applicable law. If the applicable law doesn't allow the judge to do what he wants to do, he's going to have to change the material facts so that the law doesn't apply. When judges don't want to put themselves on record as dishonestly reciting facts, they just render decisions without reasons or factual findings.
The prevalence of intellectually dishonest decisions is described by Northwestern Law Professor Anthony D'Amato in "The Ultimate Injustice: When the Court Misstates the Facts" [1]. He shows how judges at different levels of the state and federal systems manipulate the facts and the law to make a case turn out the way they want it to. It quotes from a speech by Hofstra Law Professor Monroe Freedman to a conference of federal judges:
Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.
Afterward, when Professor Freedman sat down, a judge sitting next to him turned to him and said, "You don't know the half of it." The Myth of Recusal
There's next to nothing you can do when you're before a dishonest judge. He's not going to respond to a recusal motion with "Hallelujah, you've shown me the light. I'll step down." His dishonesty will carry through to the recusal motion, which, while asserting his complete fairness and impartiality, he will deny from the bench with no written decision or, if by a written decision, then one stating no reasons or misstating the basis for recusal. And just as making a formal recusal motion entails expense, as any motion does, so does taking an interim appeal, which may not be feasible.
Of course, there's a problem even before making a recusal motion. Your lawyer may not want to make one because it means taking on the judge by accusing him of biased conduct. A lawyer's ethical duty is to zealously represent each client, but lawyers have other clients whose cases may come before that judge. And it is not just their relationship with that judge that they want to protect, but with his judicial brethren, who are part of the judge's circle of friends and may be quite defensive of his honor, which they see as an extension of their own.
Congress has passed two specific recusal statutes proscribing judicial bias and conflict of interest by federal judges. These have been gutted by the federal judiciary. One statute explicitly states that whenever a party files a "timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding...." It seems pretty clear on its face. Yet the federal courts have interpreted this to mean that the judge who is the subject of the recusal affidavit determines its timeliness and sufficiency. The result is predictable. The complained-of judge acts as a censor, ruling that a timely and sufficient affidavit is untimely and/or insufficient so as to prevent its being heard on the merits by another judge.
On top of that, the federal courts have interpreted the recusal statutes to require that the basis for recusal be "extrajudicial." This means that the facts giving rise to recusal can't come from the case itself, but from something outside the case. Thus, if the basis of the recusal motion is that the judge has been oppressive, bullying, and insulting, has wilfully disregarded black-letter law and falsified the factual record -- in other words, that he has engaged in all the misconduct popularly believed to be biased -- that judge need not step down when a recusal motion is made. The litigant or his lawyer has the impossible burden of trying to ferret out information about the judge's personal, professional, and political life so as to figure out the "why" behind the egregious misconduct. Parenthetically, the U.S. Supreme Court, having long ago generated the "extrajudicial" source doctrine out of thin air, has implicitly approved a "pervasive bias" exception to it. This, of course, means nothing to a biased judge, who will pretend he is unable to discern any bias, let alone "pervasive bias." The Chimera of Judicial Discipline
You would think that where a judge consistently abuses his discretion and renders dishonest rulings, including on recusal motions, a formal judicial misconduct complaint would be taken seriously by a disciplinary body. Each of the 50 states and the District of Columbia has a commission, committee, council, or review board, whose purpose is to address complaints of judicial misconduct by state judges within its jurisdiction. There is also a mechanism for complaints against federal judges, which is set forth at 28 U.S.C. §372(c). Because it was enacted by Congress in 1980, it is commonly called "the 1980 Act."
These disciplinary mechanisms frequently dismiss, out-of-hand, complaints of on-the-bench misconduct, including abusive courtroom behavior and fabricated judicial decisions. They do this on the pretense that they have no authority to review "merits of matters within a judge's discretion, such as the rulings and decision in a particular case," which they assert can only be reviewed by an appeal to an appellate court. The theory here is that doing otherwise infringes upon judicial independence, the important principle that judges be free to decide cases based on the facts before them and applicable law, without outside pressure and influences. However, judicial independence is predicated on "good faith" decision-making. It was never intended to include "bad-faith" decision-making, where a judge knowingly and deliberately disregards the facts and law of a case. This is properly the subject of disciplinary review, irrespective of whether it is correctable on appeal. And egregious error is also misconduct, since its nature and/or magnitude presuppose that a judge acted wilfully, or that he is incompetent.
Under the 1980 Act, one of the statutory grounds upon which a Chief Judge may dismiss a judicial misconduct complaint is if he finds it to be "directly related to the merits of a decision or procedural ruling." Although a complaint alleging bad-faith, biased judicial conduct -- including legally insupportable and factually dishonest rulings -- should not be dismissed as "merits-related," it invariably is. Adding insult to injury, Chief Judges sometimes tack onto their dismissal orders another statutory ground for dismissal, "frivolousness." In their view, a bias claim supported only by erroneous rulings and decisions, no matter how egregious, is "frivolous." The Illusory Remedy of Appeal
Faced with a dishonest judge, litigants often cave in at the trial level and never make it to appeal. It's too emotionally and financially draining to continue before a biased and dishonest judge. This is not to say that justice is obtainable on appeal. Even with a reversal, the onus of the appeal is on the aggrieved litigant, who, at best, gets what he was entitled to at the outset, only years later and after spending untold amounts of money on legal fees and costs. Beyond that, the appellate decision, if it even identifies the "error" as judicial misconduct, will likely minimize it. Notwithstanding their ethical duty, appellate judges rarely, if ever, take steps to refer an errant trial judge for disciplinary action. And this is where the appellate process "works"!
In the federal system and in most state systems, you get only one appeal as of right. After that it's at a higher court's option. And what happens when you file misconduct complaints against appellate judges for their dishonest decisions? Just like the dishonest decisions of trial judges, they'll be tossed out as "merits related." The Report of the National Commission on Judicial Discipline and Removal
Created by Congress, the National Commission on Judicial Discipline and Removal was supposed "to investigate and study the problems and issues" relating to judicial discipline and removal in the federal system and to evaluate more effective alternatives. In August 1993, it issued a report concluding that existing mechanisms were sufficient to deal with misconduct by federal judges. All that was necessary was a little tinkering. With that, and at a cost to taxpayers of nearly $1,000,000, the Commission passed out of existence, indefinitely setting back the cause of meaningful judicial reform. How did the Commission reach its conclusions? Not by making any significant outreach to those having direct, first-hand experience with the key "problems and issues," most of which it dodged. Indeed, the Commission's researchers never interviewed anyone who had filed a judicial misconduct complaint with the federal judiciary under the 1980 Act or with Congress to initiate its impeachment procedures. How can you make any assessment about how these mechanisms are working unless you reach out to the victims of judicial misconduct who have used them? Yet the researchers who reviewed §372(c) complaints were not ashamed to admit, "We know little about complainants and what they seek. We did not design this research to address those issues." [2] This admission is buried deep within their underlying research study.
Instead, the Commission's researchers interviewed Circuit Chief Judges and Circuit Executives about their experience in administering the 1980 Act. And how did the Chief Judges explain the value of the 1980 Act when 95% of the complaints filed were dismissed, mostly on the statutory ground that they were "merits-related"? They made claims about how the Act served as a deterrent to misconduct, and that "informal" discipline was taking place behind the scenes, using phrases like "still water runs deep." The judges insisted on absolute anonymity and that their comments be camouflaged to prevent them from being traced back to their Circuit. The Commission gave scant recognition that judges' responses might be tainted by self-interest.
The judges' anonymous comments cannot be verified, nor can the Commission's conclusions about the judicial misconduct complaints it reviewed. This is because the complaints are inaccessible to the public.
The Commission's report fails to say that it was the federal judiciary which made §372(c) complaints confidential -- not Congress -- and does not explore how this has frustrated Congress' ability to exercise the "vigorous oversight" it promised when it passed the 1980 Act. There were fears that the federal judiciary would be unwilling to police itself. Yet not only does the report not alert Congress to its prerogative to amend the §372(c) statute to ensure public access to the complaints, but the Commission allowed the federal judiciary to undermine what was supposed to be the first real evaluation of the 1980 Act. It did this by permitting the federal judiciary to dictate the strict terms under which it would allow the Commission to review a sampling of §372(c) complaints: only designated court-connected researchers could review them. The Commission should have objected strenuously, so that the complaints could be independently reviewed by outside individuals. Instead, it capitulated to judicial interests, which were heavily represented on the Commission. As a result, its report is not based on a truly independent review of complaints filed under the 1980 Act.
As for complaints filed with Congress and referred to the House Judiciary Committee, the Commission's report states they "may be made available upon request." Quoting the report as authority, the Center for Judicial Accountability asked to examine the very complaints the Commission's researchers had reviewed. We were told that we would be notified when the Committee's policy for reviewing past complaints "was decided." That was more than two years ago, and we're still waiting for word of the Committee's policy.
The House Judiciary Committee fully participated in the Commission's report. The list of members and counsel from the House Judiciary Committee involved in the Commission's work reads like a Who's Who. Its courts subcommittee held a hearing on the Commission's draft report. The natural assumption is that the report would be extremely accurate about the House Judiciary Committee's procedures. But accuracy would have exposed the Committee's dereliction.
The shameful facts about the House Judiciary Committee's operations are cut from the Commission's report. You see this when you compare it with the draft report that preceded it, and then compare them to the underlying research studies. The report depicts the House Judiciary Committee as professional and responsive. But a wholly different picture emerges when you turn back to the underlying research studies. Even the draft report discloses that over 80% of the complaints reviewed by the researcher had not even been responded to by the House Judiciary Committee. That statistic is gone from the final report. Likewise cut from the final report is the draft's statement that, "Well over 90% of the complaints [filed with the House Judiciary Committee] do not raise genuine issues pertinent to judicial discipline and impeachment." That means up to 10% do raise such issues. The obvious next question is what the House Judiciary Committee did with these serious complaints. The draft report doesn't have the answer. You have to turn back to an underlying study to find out that the Committee either did not respond to these complaints or, if it had, did nothing beyond that. The Failure of the 1980 Act
Because the House Judiciary Committee does not investigate individual complaints, the 1980 Act is the only avenue for disciplining the federal judges. Yet the vast majority of complaints are dismissed on the Act's statutory ground that they are "directly related to the merits of a decision or procedural ruling." The Commission's report does not disclose this important fact.
Plainly, for Congress to exercise "vigorous oversight" over the federal judiciary's administration of the Act, which is what the Commission was supposed to facilitate, it needed to know how the federal judiciary was interpreting "merits-relatedness." This was all the more essential because the federal judiciary had made judicial misconduct complaints confidential. Most importantly, was the federal judiciary treating complaints alleging bias, including dishonest decisions, as "merits-related"? Additionally, because the statute does not actually require dismissal of "merits-related" complaints, but only that such complaints "may" be dismissed, Congress needed to know what factors the federal judiciary was considering in exercising its discretion.
Yet, the two paragraphs of the Commission's 150-page report devoted to "merits-relatedness" make it utterly impossible for Congress or anyone else to discern how the federal judiciary has interpreted that statutory ground or exercised its discretion. The first paragraph concedes confusion as to the relationship between "merits-relatedness" and an appellate remedy, which may or may not exist. The second paragraph then tries to minimize the fact that even where there is no appellate remedy, "merits-related" complaints are dismissed. It trumpets that the "core reason" for excluding such complaints from disciplinary review is "to protect the independence of the judicial officer in making decisions, not to promote or protect the appellate process...." But this is rhetoric. "The independence of the judicial officer" does not extend to bad-faith conduct, including decisions motivated by bias and other illegitimate purposes. And disciplinary review is appropriate under such circumstances, whether or not there is an appellate remedy.
Not only did the Commission fail to articulate this appropriate standard, but the researchers did as well. Three of the Commission's separate underlying research studies quote from a 1987 memo by Patricia Wald, then Chief Judge of the D.C. Circuit, to Judge Elmo Hunter, who had been instrumental in developing the 1980 Act and was then chairman of the Court Administration Committee of the Judicial Conference, the federal judiciary's "top management":
... Since the vast majority of complaints we receive come out of judicial proceedings, some clarification ... would be helpful. Is anything that arose in the course of a proceeding out of bounds for a complaint, or is behavior that might have been appealed as a fundamental deprivation of due process (i.e., the lack of an unbiased judge) still a permissible subject of a complaint?
Where is the answer to Judge Wald's straight-forward question? The researchers, including those who had interviewed Chief Judges, do not refer to any answer from Judge Hunter or any other judge. Nor do they provide their own answer. How could the federal judiciary properly and consistently address §372(c) complaints if it was unable to answer that question 13 years after passage of the 1980 Act?
The obvious conclusion, which the Commission chose to ignore and conceal, is that the federal judiciary had deliberately left the "merits-related" category vague in order to dump virtually every judicial misconduct complaint it receives. This is clear from the circuits' failure to develop and publish a body of decisional law relative to the 1980 Act, despite a 1986 recommendation by the Judicial Conference that it do so. Direct, First-Hand Experience
The dishonesty of the National Commission is further exposed by the direct, first-hand experience of CJA and its personnel. Back in June 1993, when the Commission issued its draft report, purportedly for public comment, we responded to its conclusory claims that the appellate process constituted a "fundamental check" of judicial misconduct, as did "peer disapproval" among judges. To rebut such claims, we provided it with the appellate record of a case in which a district judge's factually-fabricated and legally insupportable decision was affirmed by a circuit court panel. Although the panel's decision rested on non-existent facts and was, on its face, aberrant, contradictory, and violated black-letter law of the circuit and the U.S. Supreme Court, attempts to obtain discretionary review by the full circuit and in the Supreme Court were futile.
We pointed out to the Commission that its draft report, expressing confidence in the formal mechanisms for discipline in the judicial branch, had stated that it would not recommend substantial change "absent a convincing demonstration of the inadequacy of the 1980 Act." We asked the Commission directly whether a complaint against the judicial authors of those fraudulent and lawless decisions was reviewable under the 1980 Act. If not, then there was no remedy in the judicial branch, and the case should be designated by the Commission as providing the required "convincing demonstration" for a recommendation of more substantive changes.
But the Commission refused to answer whether such a complaint would be reviewable under the Act and directed us to seek review by the House Judiciary Committee. Three weeks later, the House Judiciary Committee's counsel -- who was also its liaison to the National Commission -- told us that, "there has never been an investigation of an individual complaint in the history of the House Judiciary Committee" and that we shouldn't expect it to start now. It was then August 1993, and the Commission's final report was just published, touting the appellate process and "peer disapproval" as "fundamental checks," and the House Judiciary Committee as a proper recipient for complaints, with investigative capacity.
At that point the National Commission was defunct. So we wrote to the House Judiciary Committee, asking that it clarify what it does with the judicial misconduct complaints it receives. If it was not investigating them, why did the Commission's report not say that? For nearly two full years, the House Judiciary Committee ignored all our many follow-up letters and phone calls. Finally, in June 1995, successor counsel reiterated that the House Judiciary Committee does not investigate complaints of judicial conduct filed with it, but confines itself to legislation. He explained that the Committee simply doesn't have the budget for investigations. The Committee might have had the money if the Commission's report had been more forthright, rather than dodging the issue with a vague recommendation that the House "ensure that its Committee on the Judiciary has the resources to deal with judicial discipline matters."
According to the Commission's report, the standard practice of the House Judiciary Committee is to direct complainants' attention to the 1980 Act. It cautioned the Committee to "tell complainants that the 1980 Act does not contemplate sanctions for judges' decisions or issues relating to the merits of litigation." Since the House Judiciary Committee had not directed us to file a complaint under the 1980 Act, we asked it whether this meant that it did not believe our complaint was reviewable under the Act. But the Committee, like the National Commission before it, would not tell us. Ultimately, it became obvious that it had not the foggiest idea. And again, the reason is attributable to the Commission's report, which is wholly uninformative on the subject of "merits relatedness."
Meanwhile, our growing expertise and persistence paid off with the House Judiciary Committee. In February 1996, its counsel met with us and agreed that, if the federal judiciary rejected our complaint as "merits-related," the House Judiciary Committee would have to undertake an investigation. So, we filed our complaint.
What happened? Our complaint was improperly dumped as "merits-related" in a conclusory order which itself was a prime example of a dishonest decision. For this reason, we sought review by the Circuit Council. Our petition demonstrated that the dismissal order was legally and factually unsupportable, and that it contemptuously disregarded the National Commission's recommendation that dismissal orders be reasoned and non-conclusory and that the circuits resolve ambiguity in the interpretation of the 1980 Act. We pointed out that the Judicial Conference had endorsed each of these recommendations and that our complaint was ideally suited for building interpretive precedent to make clear, once and for all, that complaints alleging biased, bad-faith conduct are not "merits-related" and additionally that even "merits-related" complaints are not required to be dismissed under the statute. The Circuit Council's response? It denied our petition in one sentence. The cover letter informed us that, under the Act, there was no further review.
But the Judicial Conference has oversight responsibility -- and we turned to it. The Assistant General Counsel to the Administrative Office of the U.S. Courts is the liaison to the Judicial Conference's disciplinary committee. His refusal to take any steps on our documented showing that the circuit is subverting the Act and the recommendations of the National Commission and Judicial Conference bears directly on the integrity of the National Commission's review of §372(c) complaints, since he was one of the two court-connected researchers who examined those complaints for the National Commission. He was not Assistant General Counsel at the time he examined complaints for the Commission. He was promoted to that position afterwards, presumably because the federal judiciary liked his conclusions so well.
In the end, we have empirically proven more than the "inadequacy of the 1980 Act" resulting from an over-expansive judicial interpretation of "merits-relatedness." We have demonstrated that the 1980 Act is a facade behind which the federal judiciary dismisses fully-documented complaints of dishonest judicial decisions by decisions which are themselves dishonest and which properly should be the subject of disciplinary review -- if there were any place to go for redress.
That's yet another reason why we are trying again with the House Judiciary Committee. We are now preparing a formal presentation to it based on our §372(c) complaint as well as the §372(c) complaints of our members. These, likewise, have been dishonestly dismissed as "merits related" in conclusory orders which similarly misrepresent the serious misconduct issues presented. Based on this evidence and the first-hand testimony of people who have brought complaints, the House Judiciary Committee will get a good look at what the federal judiciary, working through the National Commission, did not want it to see: flagrant judicial misconduct and corruption which the federal judiciary was able to cover-up when it made §372(c) complaints confidential. We believe it will be the basis for ending that confidentiality and for creating an alternative disciplinary mechanism, one outside the federal judiciary, to review judicial misconduct.
END

The Author: Elena Ruth Sassower is co-founder and coordinator of the Center for Judicial Accountability, Inc. (CJA), a nonprofit, nonpartisan citizens' action organization (http://www.judgewatch.org) working for many years to reform the process of judicial selection and discipline on national, state, and local levels. She is the daughter of Doris L. Sassower, a renowned whistle-blowing lawyer whose law license was viciously suspended by vindictive judges under a so-called "interim" order in 1991 — without notice of charges, hearing, findings, or right of appeal — after she launched a legal challenge to a corrupt political judicial cross-endorsement deal between the two major parties, involving the trading of seven judgeships over a three-year period.

Note: In 2001, Douglas Kendall, Executive Director of the Community Rights Council, testified before Congress as to the ineffectiveness of §372(c) complaints.



References
  1. Anthony D'Amato, "The Ultimate Injustice: When the Court Misstates the Facts," Cardozo Law Review, Vol. 11: 1313 (1990).

  2. Research Papers of the National Commission on Judicial Discipline and Removal, Vol. I: 625 (1993).
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