New Haven Independent

1:28 p.m. A dozen reporters are camped outside Courtroom 6A. The doors are expected to open at 1:45 p.m. A sketch artist was let in early to set up in the jury box. Proceedings are scheduled at start at 2 p.m.

1:49 p.m. The number of reporters present has now grown to 15. Sketch artists: 2.

1:51 p.m. Will Clark plead today? Reporters debate the question in whispers as we await hearing.

2:01 p.m. Five marshals are here. Public defender Joe Lopez enters the room. No sign of the judge yet.

2:16 p.m. Court’s in session. Clark enters the courtroom in handcuffs, leg shackles, and an orange jump suit. He has a new buzz cut.

2:18 p.m. Clark won’t be entering a plea today, according to public defender Beth Merkin. That’s because the defense has made no decision yet on whether Clark will waive his right to a probable cause hearing. Defense still needs to see more evidence from police before making the decision.

2:19 p.m. Judge Roland Fasano has set a date of Nov. 3 at 2 p.m. to consider whether there will be a hearing for probable cause. If Clark waives right to the hearing, he will likely enter a pro-forma not guilty plea at that time.

2:20 p.m. Discussion begins on the motion by the Hartford Courant, joined by the New Haven Register, the AP and The New York Times, about whether to un-seal the arrest warrant and other court documents. The defense and prosecution want to keep the documents sealed.

2:38 p.m. Public defender Merkin argues to continue the seal of the arrest warrant and eight search warrants. She said unsealing them would threaten Clark’s right to a fair trial. Judge Fasano says there’s a difference between those two types of warrants: The court traditionally has a presumption that arrest warrants should be open to the public. There’s a stronger legal basis to keeping the search warrants sealed, Merkin agrees.

2:40 p.m. State prosecutor John Waddock reveals that Annie Le’s family, too, has asked for the seal to remain. Waddock says the state filed a request today asking that the arrest and search warrants remain sealed. “This has been an extremely emotional and distressing time for them,” he says. They’re “deeply concerned” that unsealing the warrants would “invade their privacy rights.” Those rights have “already been infringed upon by constantly being contacted” by media. The victim’s right to privacy is one factor the judge may consider in extending the seal, Waddock says. He agrees with Merkin’s arguments for continuing the seals.

2:50 p.m. Courant’s lawyer Paul Guggina is now representing all four outlets fighting to make the warrants public. He argues that the right to free speech is as important as the right to a fair trial. Plus, he argues, a lot of facts are already out in the public, so there is no justification keep those facts under seal.

3:04 p.m. Clark listens quietly to the debate. One of the sketch artists zooms in on his face with binoculars.

3:05 p.m. Court adjourns. No decision today on the seal. Seal will remain in effect for at least two more weeks while Judge Fasano considers which parts, if any, to make public. Lopez and Merkin leave the room to talk to their client.

3:15 p.m. Guggina meets with reporters outside court. He says the strongest argument in favor of opening the warrants is that Connecticut has a individual voir dire process, by which each juror is interviewed as to their biases on the case. This allows the defense to ensure that a juror has not been sullied by press coverage of the murder case. This means there should more openness of documents because the defense has greater power to eliminate tainted jurors, he argues. (Click on the play arrow at the top of this story to watch.)

Background

Clark is being held at the McDougall-Walker Correctional Institution in Suffield; his bond is set at $3 million.

Today’s hearing had two purposes: First, for the defense to report back to the judge on whether his client will waive his right to the probable cause hearing.

Second, for the judge to consider a motion from the Hartford Courant to unseal the arrest warrant, along with a defense motion to keep it sealed.

Police have said they based his arrest on over 300 pieces of evidence, and that the state crime lab did DNA testing to solve the crime. The details remain closed to the public in arrest and search warrants that were sealed in court. The documents were sealed by Judge Fasano by request of the state prosecutors and defense attorneys.

On the morning of Clark’s Oct. 6 court appearance, the Hartford Courant filed a motion objecting to that seal. Three other news outlets later joined them.

“The public has a presumptive right of access to the arrest warrant affidavit and any related documents presently under seal,” argued Paul Guggina, the Courant’s attorney, in a motion filed in court.

The arguments boil down to: Is there a stronger interest that overrides the public’s right to know what’s in the documents?

In a Sept. 24 motion, Public Defenders Lopez and Merkin asked that the warrant remain under seal because releasing it “would irreparably prejudice the defendant’s state and federal constitutional rights to an impartial jury and to a fair trial.” Lopez said he requested the seal in part to give defense attorneys more time to examine information about the case before it is made public.

“Sealing orders may not be extended for the convenience of parties or as a matter of course,” Guggina responded. Under statutory and constitutional law, he argued, the public has the right to see a court document unless a party can prove three things: That there is “an overriding interest in keeping the affidavit secret”; that “sealing the order is the only remedy available for satisfying that interest”; and that the sealing order is “narrowly tailored to provide the public as much access as possible.”

Guggina argued that Lopez and Merkin failed to prove those conditions necessary to justify the seal.

Previous coverage of the Annie Le case:

Tuesday, Oct. 6
Live Blog: Lawyer For Annie Le Murder Suspect Wants To See The Evidence
Friday, Sept. 25
• Warrant In Annie Le Murder To Stay Sealed
Thursday, Sept. 24
• Cops Back At Annie Le’s Lab Building
Monday, Sept. 21
• What Annie Le Story?
• Public Defender: I Don’t Want Annie Le Reporters Investigated
Thursday, Sept. 17
• After Annie Le Murder, Union Chief Sends Rallying Call
• Annie Le Suspect Knew Cops Were On His Tail
• Cops Arrest Lab Tech In Annie Le Murder
• Suspect Arraigned (live blog)
Wednesday, Sept. 16:
• Ex-Girlfriend “Shocked” About Annie Le Target
• Cops Stake Out Annie Le Target’s Motel
• Annie Le Case: It’s Coming Down To The DNA
• Annie Le Was Strangled
Tuesday, Sept. 15:
• City, Yale Learned From Jovin In Annie Le Case
• Suspect In Annie Le Case Has Fiancee
• NBC Producer Trampled At Annie Le “Briefing”
• Cops Take DNA From Annie Le Target
• Was That Annie Le’s Killer?
Monday, Sept. 14:
• Body Identified As Annie Le
• “Serious” Suspect In Annie Le Case
• You Can Get In The Wall With A “Butter Knife”
• Lab Building Shuts Down
Sunday, Sept. 13:
• Remains Of Annie Le Believed Found; “A Time For Compassion,” Levin Says
• Annie Le Hunt Extends To Hartford
Saturday, Sept. 12
• Focus In Annie Le Probe Less On “State Lines”
Friday, Sept. 11
• City Cops Join Search For Annie Le; $10,000 Reward Posted