Wednesday, November 29, 2006

Connecticut Culture of Corruption Courts


`Super-Sealed' Excavation

November 29, 2006
By LYNNE TUOHY, Hartford Courant Staff Writer
Forty court files remain "super-sealed" four years after revelations that the judicial branch had concealed existence of many lawsuits, enraging lawmakers and the public.

But more information about the cases trickled out Tuesday as a judge and lawyers for several litigants who have sued the court system over the practice try to solve the conundrum.

Several cases involve people who changed their names in the face of viable and detailed death threats, according to participants at the hearing in Middlesex Superior Court. A woman who claimed police brutality had her file sealed.

One man whose ex-wife is a well-known Westport lawyer said he felt pressured into agreeing to have all trace of their divorce case erased from public view.

"The issue was purely financial," physicist Michael Lubell said of his 1999 divorce from lawyer Ellen Lubell. "If I didn't agree to certain terms, it would go to litigation. Her firm was representing her. For me, the meter was running."

Lubell testified at the hearing identified only as "Mr. L." He endorsed unsealing the entire file in his case, and after court he provided his full identity.

Lubell could not recall the name of the judge in Milford Superior Court who super-sealed the file. "There was an agreement, and the court accepted it," he said.

The hearing highlighted both the sensitive nature of some of the files and the machinations behind the sealing of others. Because only Superior Court Judge Robert E. Beach Jr. has reviewed all the files in question, the arguments at times were painfully cryptic, laced with speculation and hypothetical situations.

"It's hard to argue in the abstract," said Daniel J. Klau, the attorney for The Courant and the Connecticut Law Tribune.

"I'm trying to give you the `why' in cases where there are valid privacy interests," Beach replied.

The two publications have been steeped in litigation for more than three years in an effort to get the state judicial branch to release just the docket sheets of the super-sealed cases, in an effort to learn what caused such extraordinary treatment.

Klau argued that the news value of the individual cases is not at issue.

"What has been driving this litigation is a deep desire to know how, in the state of Connecticut in the 21st century, cases were disappearing from the docket," he said.

The existence of this extreme sealing practice may have been first documented in a memo to court clerks in 2000, instructing them to not even acknowledge the existence of a "Level 1" sealed case. Such cases were referenced by number, not by the names of the parties.

The judicial branch in 2003 acknowledged the existence of at least 185 Level 1 files, many of which were swiftly converted to a status of Level 2 - in which the docket number, names of the parties and nature of the litigation is public information - or unsealed altogether. Among those 185 Level 1 files was the divorce case of University of Connecticut President Philip E. Austin, first discovered by the Connecticut Law Tribune in December 2002. It was titled, "in re Level 1-10 v. in re Level 1-10."

Although the U.S. 2nd Circuit Court of Appeals ruled two years ago that docket sheets are presumed to be a matter of public record, it also ruled that judicial branch administrators have no authority to upset the order of a trial judge to seal a file. This began a lengthy, often awkward process of trying to ascertain whether sealing orders existed for the remaining 40 files.

Beach said Tuesday that he is prepared to modify the sealing orders in many of the files to release the maximum degree of information possible. This drew the concern of Steven R. Dembo, who represents a party in a seemingly volatile divorce and custody case.

"How do I unring the bell if the court goes too far?" Dembo asked.

"You're going to know the basic nature of the case and why they wanted it sealed," Beach said. "My inclination is to disclose as much as I can without stepping on protective issues."

He said he had his clerk send notices by certified mail to the parties and attorneys in the 40 cases, to the best of his ability to track their whereabouts.

Only seven responses came back to the court, including a letter from a lawyer in one case saying he's no longer involved, and a letter from a lawyer in another case saying he never knew the file was sealed.

Only one litigant other than Lubell testified Tuesday.

"Mrs. P." said she would consent to having only the names of the parties and the docket number disclosed in her case. After court, she would say only that her case involved a police brutality complaint, "in which there appeared to be intentional interference by the political arena and the court system and several attorneys." She noted that the case some years later affected the civil rights of one of her parents. Beyond that, she would not elaborate.

Beach set no continuance date for the hearing, but wished everyone "happy holidays" before adjourning court, suggesting that nothing further is expected before the first of the year.

Contact Lynne Tuohy at

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Secret Program Target Of Suit

Yale Students Seek Information On Techniques Used To Investigate Immigrants
November 29, 2006
By KIM MARTINEAU, Hartford Courant Staff Writer
NEW HAVEN -- Students at Yale Law School are suing the federal government to learn more about Operation Front Line, a secretive program that is overseen by the Department of Homeland Security and gathers information on immigrants.

Daniel Freeman, a law student at Yale, learned about Operation Front Line through a client who sought the help of one of Yale's free legal clinics. The client was an immigrant living in Connecticut who had been investigated through the program and arrested. Yale's Jerome Frank Legal Services Organization, along with the Allard Lowenstein International Human Rights Project, recently filed suit against the U.S. Department of Homeland Security in federal court in New Haven, in an attempt to find out more about the program's investigative techniques.

In the aftermath of the Sept. 11, 2001, terrorist attacks, federal authorities have used immigration law violations to weed out possible terrorists. Officials have kept much of their work secret, invoking national security. The secrecy has raised concerns among civil rights groups that investigators may be singling out immigrants based on race, religion or ethnicity.

President Bush's program to spy on some Americans without a warrant has been among the most controversial. In August, a federal judge in Detroit declared the spying program unconstitutional but the spying continues as the case winds through appeal. Another program requires all men older than 16 from nations considered an "elevated security threat," to register. Nearly all have Muslim majorities.

Freeman said he's found only one official reference to Operation Front Line: buried in a cost benefit analysis done by the White House's Office of Management and Budget. The 2006 budget report said the operation is overseen by U.S. Immigration and Customs Enforcement, the largest investigative arm of Homeland Security. Its mission, according to the lawsuit, is "to address potential vulnerabilities in immigration and trade systems relative to the national security of the United States."

Michael Gilhooly, a Department of Homeland Security spokesman, said Tuesday in a statement that Immigration and Customs Enforcement investigators have not used race, religion or ethnicity to single out "immigration violators." He said Front Line was carried out in the months leading up to the 2004 presidential election and through the 2005 presidential inauguration to find "immigration violators that may have posed an enhanced public safety or national security threat."

Freeman and his professor at Yale, Michael Wishnie, filed a federal Freedom of Information Act request last month, asking for any records involving Front Line. When Homeland Security failed to acknowledge their request, a lawsuit was brought on behalf of Yale's legal clinic. The case that led to the Front Line discovery remains mostly secret, for now. Freeman declined to discuss his client's immigration status, why he was arrested or how the case turned out.

Operation Front Line would seem to fall within Immigration and Customs Enforcement's massive intelligence budget: $1.4 billion for next year alone. Yet no details about its scope, methodology or results have been made public, the lawsuit contends.

"If we are expending so much to investigate immigrants, the public has a right to know how the investigations are being conducted," said Freeman.

There are about 12 million undocumented immigrants living in the United States. If Operation Front Line didn't single out anyone by race, religion or ethnicity, Freeman would like to know what criteria they did use.

"Front Line didn't target all of them," he said. He also said it seemed odd that the government waited until 2004 to decide that certain immigrants posed a national security threat.

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COMMENTARY (Hartford Courant)

Check Still Needed On Judicial Power

Should Judges Answer Only To Themselves?
November 26, 2006
No one can question the courage of senior Associate Supreme Court Justice David Borden. He filed the complaint, and made public the events, that led to the Judicial Review Council's sanctioning of former Chief Justice William J. Sullivan for trying to keep from the legislature a court decision limiting public access to judicial records.

He's leading a much-needed overhaul of the judicial branch's rules and policies on transparency - even in the face of intense opposition by some of his colleagues on the bench. But perhaps he showed the most courage when he recently met in a no-questions-barred session with members of the Connecticut Council on Freedom of Information.

The council is an umbrella group representing the state's print, broadcast and cable news media. It advocates for strong open government laws and a vigorous First Amendment. It's been most critical of the culture of secrecy in Connecticut courts and is crusading for a constitutional amendment to assure greater accountability over our judges. So Justice Borden knew he was entering the proverbial lion's den in meeting with them.

The state constitution states that the "powers and jurisdiction" of the courts "shall be defined by law." The Council on Freedom of Information has proposed that this provision be amended by adding the words "and the practices and procedures of the courts, including their openness and accountability to the public, shall be established by statute."

Justice Borden's argument against this constitutional amendment was two-fold. First, he argued that the recent scandal that precipitated the call for such an amendment had nothing to do with the judicial branch's power to make rules governing the courts.

Second, he maintained that such an amendment is unnecessary now since internal reforms are already under way that, if implemented, will provide for far greater transparency than is currently the case.

It was a good argument, articulately presented. But I think it falls short on both accounts.

It was not just the Sullivan scandal that precipitated the initiative for a constitutional amendment. It was also the protocols that came to light a few years ago, in which a large number of court files and proceedings had been clandestinely closed to the public, and the judicial branch's vigorous attempt to keep some of those records secret - including the identities of the judges who entered sealing and closure orders.

In fact, these are just two of the more publicized examples of what many consider judicial arrogance - or "robe-itis" as it is now called. Other examples include the decision to keep the meetings of the Superior Court Rules Committee closed to the public, the decision not to permit public attendance at the annual convention of judges, and the numerous decisions of judges to prohibit cameras in their courtrooms. One judge even prohibited note-taking by a reporter in her courtroom.

Interestingly enough, each one of these decisions has been, or is in the process of being, changed under Justice Borden's enlightened leadership. But the fact is that no remedial action occurred until the recent scandals unfolded. So why shouldn't we be skeptical that without a change in the one fundamental law that binds the courts - the constitution - these improvements won't be reversed by a judiciary led by someone other than Justice Borden?

The fact is, there is no guarantee without a constitutional amendment.

Why is this so important? In effect, Justice Borden is attempting to establish within the judicial branch, by rule and policy, something akin to our Freedom of Information Act. But alleged violations of these provisions would not be reviewable by, or appealable to, any independent authority, such as the Freedom of Information Commission. Nor would any rule change be subject to legislative approval, as it is in the federal system.

Thus, any newfound transparency would be exclusively at the sufferance of the very judges who, in the future, may decide to close records or proceedings from public scrutiny.

I certainly understand why judges don't want independent oversight of such decisions. No one likes someone else looking over their shoulders and second-guessing them. But in our system of government, that's what "checks and balances" are all about, and the judicial branch shouldn't be immune from such accountability under some self-serving system it designs to cloak itself from that accountability.

Justice Borden made some legitimate points in arguing against amending the constitution. And I agree that the constitution should not be amended without very good reason. But I submit there well might be such reasons in this instance. At the least, the legislature should look closely at the issue, hold public hearings on it, and then decide whether to institute the constitutional processes for amendment, in which the ultimate decision would be left to the people of this state.

Mitchell W. Pearlman is the former executive director of the Connecticut Freedom of Information Commission and a member of the Governor's Commission on Judicial Reform.

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