The Sandy Hook Data Dump

After maintaining a four month quarantine on information concerning the Sandy Hook Elementary School slaughter, Danbury State’s Attorney Stephen Sedensky dumped some arrest warrant information into Connecticut’s highly speculative media stream. The closely guarded information, released only days before Connecticut’s General Assembly was poised to write bills restricting gun ownership, begs the question: Why now?

When criticized by a few Connecticut reporters and commentators for having withheld information inadvertently released by state police Col. Danny Stebbins during a New Orleans Chiefs of Police conference, investigators suddenly and inexplicably abandoned their often iterated threadbare rational: that releasing information in the arrest warrants would compromise “an active investigation.” They let part of the cat, its nose only, out of the bag.

Apparently the released arrest warrant data was harmless enough to allow Mr. Sedensky to release the data about three months before the criminal investigation will be completed sometime in June.

Journalists, the intended recipients of carefully screened data, do not often enough rely on their best reportorial instincts, which ought to signal to them that artfully edited data is often a craven attempt to slice and dice information for political purposes. If any of the tribunes of the people in Connecticut had asked Governor Dannel Malloy or legislators who need accurate data to write effective laws restricting gun ownership why the data dump -- released months before a criminal investigation is due to be completed but only days before legislators are due to present their final bills -- will not compromise a yet incomplete investigation, the answer to the question is blowing in the wind.

Mr. Sedensky in his media release insisted that “an ongoing and active criminal investigation” to be effective requires the imprisoning of information that may be necessary in an official“ongoing investigation.” The rules of “Professional Responsibility as they apply to prosecutors require that I take steps to not make extra judicial statements that I know or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter… the release of any information could potentially jeopardize a future prosecution if evidence were developed to support one. It is not unusual to develop a viable prosecution late in an investigation when one was not contemplated earlier.”

A wide-awake reporter at the Journal Inquirer asked the governor’s Chief of Staff Mark Ojakian, and through him Governor Dannel Malloy, whether Mr. Stebbens would be penalized in any way for having been responsible for the information leak in New Orleans that found its way into a piece written by Mike Lupica of the New York Daily News.

Surely the leak of such carefully quarantined information had a “substantial likelihood of materially prejudicing an adjudicative proceeding,” the fig leaf so often cited by investigators who wished to keep data from legislators contemplating bills restricting Second Amendment rights.

Mr. Ojakian’s response was a barely suppressed yawn: “Those conferences take place for law enforcement officials to share information with each other — confidentially, in private — that might help their investigations. We were satisfied with his [Mr. Stebbins’] explanation."

In a piece written for The Connecticut Law Tribune, criminal defense lawyer Norm Pattis, whose specialty lies in torching prosecutorial pretentions, doubted that further charges are pending and ventured to hope that “someone challenges whether the privileges the state claims justifies this cloak and dagger editing are justified.”

Responding to Mr.Sedensky’s new fig leaf that redacted portions of the released affidavits “would identify persons cooperating with the investigation, thus possibly jeopardizing their personal safety and well-being," Mr. Pattis noted, chortling gently behind his hand, “Somehow, I doubt there will be further charges. I hope someone challenges whether the privileges the state claims justifies this cloak and dagger editing are justified… That is an extraordinary claim. From a distance, it appears that Mr. Lanza acted alone. He is dead. His mother, with whom he lived, is also dead, an apparent victim of her son's rampage. Mr. Lanza can hurt no one any longer…”

Did Mr.Sedensky, alone or in concert with others, sneak one past Superior Court Judge John F.Blawie when he asked for judicial permission to deep-six the redacted information?

“Surprising as it may seem,” Mr. Pattis writes, “the state's filing suggests that there is an active investigation of another defendant in the Newtown shooting case, a witness with such incendiary information that his or her safety would be in jeopardy were it to become public.”

Wracked by what U.S. Senator Dick Blumenthal calls the “horror” of the massacre at Sandy Hook Elementary School, the tortured parents of 26 innocent victims in Newtown must await the lifting of the fig leaf sometime in June, when the final criminal report is released, before their hearts may find rest in the truth that will set them free. In the meantime, they will have to be satisfied with legislation inspired by the rush of circumstances that very likely will not satisfy their curiosity or mitigate their pain.

Malloy And The Supremes

Taking his education reform show on the road, Governor Dannel Malloy on Thursday crashed into former Bridgeport Board of Education member Maria Pereira, one of the plaintiffs in a successful suit that overturned the dismantling of a Bridgeport Board of Education.

"On Tuesday, the Supreme Court overturned your administration's illegal takeover of the Bridgeport Board of Education," Mrs. Pereira told Mr. Malloy in a packed room at the Village South Center for Community Life in Hartford, "and I want to know if your plans to reform our schools are all about disenfranchising parents in schools all over the state like you're attempting to do in Bridgeport?"

Mr. Malloy attempted to deflect the question by asking Ms. Pereira, “How happy are you with the Bridgeport schools?"

Ms. Pereira acknowledged that the school system could use improvement. “No, the Bridgeport Board of Education hasn’t done a good job in the last 20 years,” she responded. “It’s been controlled by Democrats, that’s why. This is a democracy, not tyranny.” Ms. Pereira quickly turned the conversation back to its original track: “For you to say that we don't have the intelligence to have Bridgeport voters do the right thing …this is democracy, not tyranny."

“When Pereira was done speaking,” according to a report in CTNewsJunkie, “Malloy began to respond. When Pereira tried to interject, the governor told her she was done speaking at that point and went on to explain his position regarding the Bridgeport Public Schools.”

“Tyranny,” Mr. Malloy responded, “is sending the children to a school, year after year after year, knowing that it is performing at a rate that will not allow the vast majority of children … to compete." The governor aimed a well-deserved kick in the pants to the board of education that had been illegally supplanted with his approval. The governor said he didn’t want the state to take over failing school districts, but "Your school board basically threw up their hands and ran away."

The Supreme Court days earlier had ruled that the Malloy administration violated state law when it took over the board’s operations, purging the board without having first initiated the required retraining of the members it replaced before the takeover. Justice Peter Zarella, who authored the majority opinion, wrote that the State Board of Education “does not have the authority to authorize reconstitution until it first requires the local board to undergo and complete training.”

The court’s decision, the governor said, was “undoubtedly right," after which Mr. Malloy, almost reflexively, hustled any responsibility for illegal actions out the back door: “The prior education commissioner should have made sure that should have been done.” The present Commissioner of Education, Stefan Pryor, began his term on October 1 2011, six months before the Malloy administration disbanded the Bridgeport Board of Education, time enough, one would suppose, to allow Mr. Pryor to consult with Mr. Malloy's General Counsel, Andrew J. McDonald, who having served in the state Senate from 2003 to 2011 is no stranger to proper legislative processes.

Following the Supreme Court’s nearly unanimous decision, Mayor of Bridgeport Bill Finch urged the governor and others to circumvent the court’s ruling through a bill that “fixed” the court’s objection by means of a questionable legislative maneuver. If the law could be changed retroactively so as to apply to board members already discharged, the governor need not be put to the trouble of complying with the court decision by a) re-installing the original dismissed board, b) retraining defective members of the board, and c) reconstituting the board as necessary after the legal proprieties have been observed.

The difficulty with the shortcut being tossed around by the governor and legislators is that Supreme Court justices, as a rule, do not appreciate questionable legislative circumventions of their most recent “undoubtedly right” rulings. The court did not rule substantively on the underlying constitutional question that lawyer Norm Pattis is likely to press if the decision of the court is effectively circumvented by political legerdemain: May a constitutionally authorized democratic process of election be subverted by the governor of the state?

The court’s recent ruling presages serious difficulties with the Malloy administration educational reform package. The Malloy reform package, which seems to promise a speedy resolution to the problem of incompetent teachers, also holds out to replaceable teachers a process that would require retraining and reevaluation before discharge. If teacher tenure may be regarded as the shut door in a unionized closed shop, the retraining of incompetent teachers is the lock on that door. The provision in Mr. Malloy’s reform package that would require retaining before dismissal would, like teacher tenure itself, inhibit for long periods of time a necessary corrective to the “tyranny” the governor inveighed against in his remarks to Ms. Pereira.

Book Review: Taking Back The Courts What We Can Do To Reclaim Our Sovereignty

Taking Back The Courts What We Can Do To Reclaim Our Sovereignty

By Norm Pattis

Publisher: Sutton Hart Press

Price: $22.95

Attorney Norm Pattis, the author of “Taking Back the Courts: What We Can Do to Reclaim Our Sovereignty,” is viewed by other lawyers as a cross examination impresario. If this particular talent is a gift, it is one that in Mr. Pattis’s case has been honed throughout his years practicing law as a criminal defense attorney in Connecticut. Mr. Pattis is used to thinking outside the box – very quickly. He is disputatious, capable of mastering a complex briar patch of facts and legal precedents in quick time and effortlessly applying the relevant points in his summations.

And he has a pony tail.

Pony tails, however, may be deceptive. They evoke the silly sixties, free love, pot and the slow evisceration of the antique morality of benighted backward looking parents of the Woodstock generation. But as Mr. Pattis’ ponytail swishes through the chapters of his book, it moves disturbingly right and left.

Consider chapter 14, “Too Many Lawyers: Time to Revisit the American Rule.” The premise of this chapter – a surfeit of lawyers desperate for work increases costly suits – will not likely be embraced warmly by lawyers desperate for work and hungry for big verdicts:

“What most lawyers will acknowledge, privately, when only other fellow lawyers are around, is that there are too many of us. The result is that many lawyers are desperate for work.

“And what do desperate lawyer do? They sue people. Why not? Access to the courts is inexpensive, and here is no downside. You might always hit a big verdict. And even if they lose, the so-called American Rule has transformed the American civil justice system into the equivalent of a roulette wheel. Why not spin the wheel when the costs of doing so are low?”

The obvious solution to this problem, and the one recommended by Mr. Pattis, is to attach sanctions to losing. In most human endeavors those who lose pay and those who win carry home the trophy: “I see no justice or fairness in requiring defendants, whether they be corporations or individuals, to pay unwarranted legal fees. Why shouldn’t a loser be required to cover the winner’s costs?”

Mr. Pattis proposes to require all plaintiffs to post bonds “to cover the eventual winner’s reasonable legal fees for all the cases they bring,” a common sense reform that would protect the rights of all Americans to obtain justice from the courts, while at the same time affording defendants the opportunity of “recouping their fees when the roulette wheel comes up a loser for the plaintiff.” Flexibility would be introduced into the Pattis rule by making the bond a rebuttable presumption in all civil cases, allowing judges to relax the bond for good cause.

There are 21 chapters in the book, all crafted in layman’s verbiage, some of which have been lifted from Mr. Pattis’ columns in The Connecticut Law Tribune. The last two chapters are devoted to Mr. Pattis’ ardent opposition to the death penalty, and here he is less convincing than Albert Camus, the author of “Reflections on the Guillotine,” a passionate assault on the death penalty in France.

As a defense lawyer, Mr. Pattis is concerned chiefly with the part that has been played in a particularly gruesome Connecticut case by a husband who was the lone survivor of a murderous assault on his family, Dr. William Petit. Following the murders of his wife and two daughters, Mr. Petit has not gone quietly into the good night that shrouds the victims of heinous crimes, and Mr. Pattis fears that remarks made by Mr. Petit to the media might prejudice a jury now considering the case.

On the question of the marginalization of juries, a theme that runs throughout many of the chapters, Mr. Pattis, who provides a much needed in-house view of court proceedings, is informative and convincing. In the real world of courts, judges, juries and trials, justice is sometimes a victim of process, tedious and endless, or experts who lack expertise or judges who lack judgment or infantilized juries.

Among the questions asked and answered in “taking Back The Courts” are these: What would happen if a jury were to be made aware of the prospective sentence that could be imposed on a defendant before its members rendered a verdict? If the ignorance of a jury in such matters is bliss, can we rely on blissful ignorance to achieve justice? Evidence supplied by so called “forensic scientists” can be arrived at scientifically or not, but is the evidence supplied “scientific” simply because it is furnished by a forensic scientist? What is added to the word “science” when it is combined with the word “forensic” – other than a kind of magical incantation that bewitches juries and judges? Is expert testimony true simply because the person testifying is festooned in credentials? If the expert is paid for his service in rendering testimony, does the testimony become suspect? Suppose a juror were to raise his hand during a trial and ask the judge what sentence would reasonably be attached to a finding of guilty in a specific case? What would happen? Why are juries rather than judges permitted to determine sentences in capital felony cases alone but not in other cases? Is plea bargain justice just?

In Chapter 13, “Experts for sale,” a title one likes to think may have been drawn from Lucian’s savage second century satire “Philosophers For Sale,” Mr. Pattis has some fun with expert testimony, which is often based, he says, on very questionable science.

Mr. Pattis points to a National Academy of Science (NAS) report on the forensic use of science that splashes cold water in the faces of prosecutors who use junk science to obtain convictions. The report recommends that forensic labs and investigations should be independent of “law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed… With the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” heady and cautionary stuff.

Mr. Pattis has more than once heard prosecutors at trial urge judges to admit contested evidence: “’The state cannot prove its case without the evidence, your honor,’ the argument goes. To which I typically respond: ‘So what?’ The rules of evidence require reliable evidence. The trial deck is not supposed to be stacked in favor of conviction. But the deck is so stacked. And few judges seem prepared to do much about it.”

Impatient with conventional nonsense and cant, Mr. Pattis, pony tail swinging like a baseball bat, here offers some necessary correctives.