Judge Schools City On 1st Amendment

Christopher Peak Photo Federal Judge Jeffrey A. Meyer, a former Quinnipiac and current visiting Yale law professor, turned his Church Street courtroom into a lecture hall when it appeared a New Haven government lawyer needed a refresher course on the First Amendment.

The judge delivered his lesson Friday in the middle of the first day of testimony in a civil suit about alleged police misconduct.

Just after lunch, Michael Wolak, the New Haven city lawyer defending the two cops on trial, asked to scrap the whole case and start again. He took issue with a story that the Independent had published about the case three hours earlier. The article included a generalized description of each juror, taken from Thursday’s selection process, and shared a key video, entered into evidence Friday morning.

Wolak is representing Detective Daniel Conklin, whom an Edgewood man is suing for alleged false arrest and malicious prosecution after a minor traffic infraction exploded into an arrest, in an incident that included the confiscation (and subsequent loss) of the cellphone the man was using to video-record the cop’s actions.

“An article appeared in the New Haven Independent today, which disclosed Exhibit One to the the public and also contained identifying information for the eight jurors that would have been privy only to counsel in this matter,” Wolak complained to Meyer in court.

“OK,” Meyer responded. Then, slipping into professorial mode, the judge deconstructed the attorney’s arguments with a point-by-point analysis, as he explained journalists’ presumptive right to watch and write about what happens in the nation’s courts, absent a qualifying reason.

“The author of the article … is very welcome [here], because the press has a right to access all courtroom proceedings and report on them,” explained Meyer, a former federal prosecutor-turned professor who was appointed to the bench in 2014. “I see no basis for the court to seal the proceedings unless there are compelling reasons to do that and unless they are narrowly tailored. That’s the First Amendment obligation that the court has.”

Settled Law

 

Those well-established rights were first laid out by the Supreme Court in a 1980 case. A murder in Virginia had been derailed by three mistrials, so the defense attorneys asked to shut the public out of the fourth attempt. Prosecutors didn’t object, so the judge went ahead with closure. Two reporters from Richmond newspapers sued.

In a plurality opinion representing a 7-1 vote, Chief Justice Warren E. Burger explained that America’s judiciary participated in a long tradition of open trials —  for good reasons, like “the fostering of public confidence in the legal system, the accuracy of the fact-finding process, and the satisfaction of the community’s desire for justice,” as one commentary summarized it. Besides, Burger wrote, the right to attend a criminal trial was “implicit in the guarantees of the First Amendment.” As he read it, the whole point of free speech, press and assembly is protecting open discussion of public affairs, encompassing not only the right to vocalize one’s opinions but also to listen and receive information, including about the criminal justice system.

The Supreme Court affirmed that general principle of openness —  but not its exact reasoning —  again in 1982, when justices overturned a Massachusetts law that categorically excluded journalists and members of the public from criminal cases involving sexual assault or minors. Justice William J. Brennan (who’d applied a separate means test in concurring with the Richmond decision) wrote that judges couldn’t restrict First Amendment rights without a compelling state reason, as the Massachusetts law did too broadly, ignoring times when a rape survivor might want publicity. Burger actually dissented, prioritizing the historical record of closing trials involving minor sex crime victims. But the chief justice was outnumbered, by a 6-2 majority.

“Repeal The 1st Amendment?”

With that precedent in mind, Meyer examined the city’s complaints in more detail, beginning with the video. Having been presented as a full exhibit that morning without objection from either lawyer, the footage was fair game for the media to share. “The press have a First Amendment right to access the courts’ files, and to publicize and put on the front page of the newspaper anything that is a public exhibit here,” Meyer said. “Rest assured, that is the law.”

Wolak conceded that point. “The bigger problem is identifying information [about the jurors], that one could determine who they are,” the senior assistant corporation counsel said. Wolak added that he believed the information “would have been privy only to counsel in this matter.”

Wolak later clarified to the Independent that he thought information had been obtained from sidebar, the privileged conference where the judge and counsel question individual jurors about sensitive topics. Did he think the Independent was snooping? “I don’t know who obtained [the juror information]; it doesn’t matter,” he said. “I can’t remember all 80 people.”

In court, the judge responded that the reporter “was here all day yesterday… and as far as I can tell, anything he reported about the eight jurors was from his vantage point in the courtroom while the jurors spoke,” Meyer stated. “The names are [legally] protected, but he has not published the names of those jurors. I believe he’s released the information on the basis of what was stated in the public record.”

Meyer was correct: All the information in the article came from statements made in open court.

Even without the names, the claim that the story identified jurors also sounded dubious, Meyer continued. Take the retired male from Clinton who drives limos part-time. “I’m not sure that tells me a lot about who that is,” the judge said. “Maybe the closest is the high-school secretary from Norwich. I don’t know how many high schools Norwich has. But if that’s based on statements that were made by jurors here in open court, to me, it’s [covered by the] First Amendment, and the First Amendment wins.”

Meyer also noted that he spoke with the Independent just that morning before jurors took their seats, reminding this reporter that he could type notes on a laptop but not record audio or video of any of the proceedings. And he reminded jurors, almost ad nauseam, that they cannot research or read any press accounts about the case, Meyer added.

“I’m not sure what else to tell you, except that this is how the First Amendment works,” he summed it up for Wolak.

Still, Wolak pressed on. “We would make a motion for a mistrial at this time,” he said, asking the trial be invalidated because of a procedural error. What were the grounds? “What I just stated,” Wolak answered.

“That is, could I repeal the First Amendment?” Meyer asked.

“I’m not asking to do that,” Wolak said.

“You’re asking to be a mistrial on the grounds that a journalist exercised his rights under the First Amendment. I think that’s a problem,” Meyer said. “I can understand if we had evidence that the jury had been exposed to this new article. It’s a different matter if you want me to do an inquiry into whether they’ve read any articles. In that case, it may be appropriate — if there’s any evidence of an exposure to media, and you do not have that.”

After that, Wolak withdrew his motion. In its place, he asked the judge just to ask if anyone had read any clippings during lunch and to warn them again about not reading up.

Meyer noted that he had just told the panel that message before lunch, but he agreed to ask, noting the importance that the only evidence in deciding the case be that presented at trial.

At that point, Christopher Neary, the deputy city corporation counsel who’d come over just to watch the mistrial motion, walked out. He declined to comment to the Independent, saying, “Please don’t harass me,” as he stepped into an elevator, going down.

Back in the box, the eight jurors shook their heads: No one had looked at any articles about the case.

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posted by: EPDP on September 11, 2017  8:09am

These City attorneys are an embarrassment to the City of New Haven.  They are hacks who were appointed under the DiStefano - Harp machine. It is high time that the machine is replaced with new blood, vote the hacks out of office tomorrow

posted by: Patricia Kane on September 11, 2017  9:38am

I won’t be answering the poll because, in my experience, the police often have an approximate, but inaccurate idea of the law. Attorneys, on the other hand, have no excuse.
  Sometimes lawyers make losing arguments for a variety of reasons.

posted by: alphabravocharlie on September 11, 2017  10:10am

Just because you can do something doesn’t mean you should.

posted by: duncanidaho645 on September 11, 2017  10:28am

It appears that disrespect for constitutional rights are pervasive in this administration.  Shameful.

posted by: Timothy G. ORourke Jr. on September 11, 2017  11:57am

Counselor,

“Sometimes lawyers make losing arguments for a variety of reasons.”

To push just how arbitrarily the positive law will be defined in that instance.

posted by: wendy1 on September 11, 2017  12:55pm

Thank god for Judges like Meyer, few and far between.  I am reading The Divide by Matt Taibbi and am disgusted with the cops and the courts.  The American legal system is a free- for -all won only by the rich and (mostly) white.

The rest of us are in deep doo-doo.

posted by: THREEFIFTHS on September 11, 2017  1:45pm

After that, Wolak withdrew his motion. In its place, he asked the judge just to ask if anyone had read any clippings during lunch and to warn them again about not reading up.Meyer noted that he had just told the panel that message before lunch, but he agreed to ask, noting the importance that the only evidence in deciding the case be that presented at trial.At that point, Christopher Neary, the deputy city corporation counsel who’d come over just to watch the mistrial motion, walked out. He declined to comment to the Independent, saying, “Please don’t harass me,” as he stepped into an elevator, going down.

Both Wolak Neary are lucky.If they was in Judge Jack B. Weinstein Federal courtroom in BrooklynHe would have had there heads.I Bet Patricia Kane knew who Judge Jack B. Weinstein was.

When Judge Jack B. Weinstein holds hearings in his Federal courtroom in Brooklyn, he does not sit at the judge’s bench wearing the traditional black robe. Instead he wears a business suit and sits with the parties around a conference table.“I think people ought to feel this is their courthouse,” the 69-year-old judge said in a recent interview in his chambers in Federal District Court. “This is their courthouse, their justice, their system.“The high bench, the robes, they are an impediment to that sense,” he said, then added with a hearty laugh, “But most people don’t agree with me.“Bucking courtroom custom is just the most visible way in which Judge Weinstein has established a reputation as one of the most independent and innovative Federal judges in the country. The chief Federal prosecutor in Brooklyn, United States Attorney Andrew J. Maloney, called Judge Weinstein “one of the brightest, most innovative jurists in the country.” But Mr. Maloney added, “He marches to his own drummer, and because of that, he can sometimes give you conniptions.”

http://www.nytimes.com/1991/05/28/nyregion/jack-weinstein-creative-us-judge-who-disdains-robe-and-high-bench.html?mcubz=0

posted by: robn on September 11, 2017  2:16pm

Of course the 1st Amendment prevails but I still think that the NHI should have refrained from publishing identifying details about jurors given today’s climate of flashmob cyberbullying. We need prospective jurors to feel comfortable about participating in trials or they just won’t and then trial by a jury of one’s peers dies.

posted by: Patricia Kane on September 11, 2017  2:39pm

@Three-Fifths: Yes, Judge Weinstein was famous for his grasp of the law and his compassion. His counterpart on the local level,  Bruce ? (forgot his last name), on the other hand was known pejoratively as “turn ‘em loose Bruce”. Both were smart, independent and street savvy.
  This is a disappearing breed.

posted by: Sincerity on September 11, 2017  2:57pm

Corporation Counsel again has showed its utter incompetence of understanding the U.S. Constitution. Kudos to Judge Jeffrey Meyer for having the insight to take Corp. Counsel Atty. Michael Wolak back to the first year of his law school. Perhaps Atty Wolak missed or skipped that lecture in law school that day on1st Amendment Rights. The days where Corporation Counsel only had to show up in a courtroom are a thing of the past. To the City of New Haven, if this is the best you can proffer in putting your case on with defective counsel. The only thing unfortunately left to say is, “the tax payers of New Haven have to look forward to footing the bill for blatant and negligent police misconduct as well as the salary of an attorney who did not understand the foundations and premise on U.S. Constitution and the 1st Amendment Rights. The days of “Crackerjack” lawyering is over New Haven Corporate Counsel. The ones in that office know who they REALLY are!

posted by: I Shouted Out... on September 11, 2017  3:10pm

“You have zero privacy anyway. Get over it.”
-Scott McNealy
[McNealy, the once CEO of Sun Microsystems (taken over by Oracle in 2010) said this in January of 1999!]

These jurors were not identified in any revealing or menacing way by the New Haven Independent in its article about the Federal trial of rogue cop Daniel Conklin. In fact, each of these jurors likely discloses far more personal and detailed information to total strangers, companies, governments, law enforcement and intelligence agencies, and third parties of all kinds either knowingly or unwittingly each and every time they use the internet.

posted by: robn on September 11, 2017  7:00pm

ISO,

Apples and oranges. Govt or corporate gathering of intel on you is one thing; local journalists outing you right before you render judgement on cops in court is a totally different thing. Some of the descriptions make these people easily identifiable to their neighbors and others.

posted by: AliceB on September 11, 2017  7:44pm

Mandatory first and fourth anendment training ???  Maybe the author of this article should have the training.  Attorney Wolak was absolutely correct in his argument. The Independent was out of bounds and Meyer should have known that as well. Sorry, Meyer is the one who needs schooling and I find your article absolutely nonsensical.

posted by: AliceB on September 11, 2017  8:03pm

One more point I would like to make on this absurd article.  There is a reason books are written on the first amendment. There are so many ways to interpret this amendment.  I find the arrogance of Meyer to be problematic. 
The attorneys in the corporation counsel’s office are extremely hard working and very successful men and women. Just look at the record.
Those of you insulting them more likely than not are not lawyers or you would know better.

posted by: THREEFIFTHS on September 11, 2017  8:53pm

posted by: Patricia Kane on September 11, 2017 2:39pm

His counterpart on the local level,  Bruce ? (forgot his last name), on the other hand was known pejoratively as “turn ‘em loose Bruce”. Both were smart, independent and street savvy.

His last Name was Wright.He was my grandmother lawyer before he became a judge.

Bruce M.Wright

https://youtu.be/S43xH1LKCjo

This is a disappearing breed.

Correct.

posted by: 1644 on September 11, 2017  8:56pm

AliceB:  If the city’s lawyers were correct, can you cite some cases supporting their position?  I find it hard to believe that any law could prohibit anyone from doing what the Independent did.  Heck, we don’t even go after journalists who published classified information.  And certainly, when Bill of Rights and when the 14th Amendment were adopted, the jury members would have been known to all in a community. 
  BTW, this is less a 1st amendment case than a 14th amendment due process and 6th amendment fair trial case. The Sixth Amendment gives defendants a right to a public trial, but does not specifically state that the public have a right to public trials were the defendant not to want to exercise his right.  I believe that question was the core of the case Peak cites.

posted by: AverageTaxpayer on September 11, 2017  11:36pm

The problem is that the video recording of Conklin and Rentkowicz’ actions, coupled with the disappearing of the cell phone—together is so damning.

There was zero justification for the plaintiff’s arrest. The charges were trumped up, and all about a young cop’s hurt pride and subsequent power-tripping.

The City is going to pay for these cops’ idiocy. It’s just a question of how much.

As a citizen and taxpayer, the officers’ actions are inexcusable. Why is Conklin still on the force? And Rentkowicz should be demoted for escalating a stupid situation. I mean Conklin wasn’t even on City time when this happened. And disappearing the cell phone? That is going to prove to be a six-figure mistake.

posted by: Christopher Peak on September 12, 2017  12:16am

You’re exactly right on the history, 1644. In the trial following the infamous Boston Massacre, way back in 1770, the jurors who eventually cleared most of the British soldiers were selected in public and their identities known, according to defense lawyer and future president John Adams. There had never been an entirely anonymous jury panel (where names were not disclosed even to counsel) in America before 1977, when a racketeering case involving a drug kingpin necessitated the privacy out of fear of retaliation.

But while the Sixth Amendment, as you say, guarantees criminal defendant’s right to a “speedy and public trial,” it wasn’t entirely clear before the Richmond case that members of the public also had a right of their own when it came to open courtrooms. That’s where the First Amendment comes in (as applied through the Fourteenth Amendment, as you note).

However, because this is a civil trial, not a criminal one, the Sixth Amendment isn’t really at issue. Interestingly, as far as I can tell, the Supreme Court has never heard a First Amendment case on access to civil trials, but there have been several rulings from the higher courts. The only one I could find from our area, the Second Circuit, dates to 1984, when CNN tried to get cameras into General Westmoreland’s libel case against CBS for their exposé about deliberately undercounting enemy forces in Vietnam. The court ruled that CNN’s reporters had a right to attend, just like any other member of the public, but not to film it.

Just to complicate this specific New Haven trial one step further, the jury selection took place concurrently with a criminal case and another civil case, so one could argue the Sixth Amendment applies here too.

posted by: 1644 on September 12, 2017  10:57am

CP: Thanks.  I didn’t realize this was a civil trial.  I have not been following it that closely.  Civil suits are usually settled.  I wonder if the insurance company didn’t push for settlement, if if the city is even covered here.
BTW, seeing as this is a federal trial, we are both wrong on the 14th amendment.  It’s the Fifth Amendment’s due process clause, not the Forteenth’s, that controls.  Thanks for all the great reporting.

posted by: Lisa Simpson on September 13, 2017  11:59am

This article was incredibly one-sided and unfair, and many of the comments absolutely lack any knowledge of what goes into these cases.  Perhaps these people need to be ‘schooled’ on the law?  I am assuming there will be no article on the victory of the ‘hack’ attorneys (as one commenter-who I am assuming has never been to law school stated).  Maybe know what you’re talking about before running another pandering article, or before commenting nonsense.

posted by: Really ?? on September 18, 2017  2:26pm

Lisa Simpson,

    Amen Lisa !  Happy to see you came to the same conclusions. Some angry people commenting without much knowledge of the facts.