Judge Schools City On First Amendment

First published in the New Haven Independent.

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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