Thursday, January 3, 2013

To Protect and Seal



In re Essex Search Warrants, 2012 VT 92.

The vast majority of the SCOV’s day-to-day business involves the rather dry business of writing judicial opinions on clinical and esoteric questions of law.  Over time, the consumption of these materials can lead one to believe that the entire process of justice is as boring as the questions of procedure that seems to endless emerge from the incessant appeals.  But once a session the SCOV seems to spit out an opinion, which proves that the Court and its honorable authors are not mere judicial automatons stuck in an anonymous paper chase, but fiery individuals possessed of wry humor and no small amount of literary knowledge.

Today’s case bears such fruit.  It involves a fractured SCOV, a whodunit mystery—the facts of which lend themselves quite nicely to a conversation on Sherlock Holmes—and an exchange of quotes between the dissent and the majority.  But, dear Watson, let us begin with the basics as the game is afoot.


The warrants at issue here stem from the Town of Essex’s investigation into the disappearance of Bill and Lorraine Currier.  As more recent disclosures have revealed, the couple was abducted and murdered at random by a serial killer who travelled from Alaska to Vermont with the sole and chilling purpose of killing someone.  Tragically, that someone turned out to be the Curriers.  As detailed here, the crimes were both shocking and well outside of the normal expectations of any law enforcement agency in Vermont.

These facts make today’s case all the more complicated in its analysis of the public-right-to-know.  We know now that the police were grappling with a genuine whodunit, a highly compromised crime scene (the murder site had been demolished and removed to a landfill), and a suspect whose confessions were only meaningful to the extent that he verified facts about the case known to police but not to the general public (and whose cooperation seemed to hinge upon the police’s ability to keep parts of the story confidential). 

Of course, knowing the facts also spoils the legal issue.  It is easy to conclude in light of the post-release facts that the police were justified in requesting the seal and that the trial court erred, but that is not the way the SCOV game works.  It looks not to the outcome but to the facts available to the trial court and the arguments that the State made in support of its position.  Late emerging details that might justify such actions cannot become part of the appeal.  This is particularly true here where the analysis is essentially moot and the analysis conducted less for the particular case then for the resolution of broader legal issues.  But we are getting ahead of ourselves.  Like any good mystery, we have to start with the facts and clues that were available.

All the general public knew prior to the December 3d press conference at the U.S. Attorney’s Office was that the Curriers had disappeared and their whereabouts were unknown.  They had last been seen leaving work the evening of June 8, and were presumed to have gone home after that.  Their abandoned car was found two days later less than a mile from their home.  No one, it appears, understood the depths of human evil to which the investigation was to descend.

When the Essex police commenced its investigation, it procured eleven search warrants from the Chittenden Criminal Division.  The Burlington Free Press got wind of the investigation, and a reporter requested from the court copies of several of the search warrants.  The next day the State requested that the trial court seal the warrants, and their supporting materials.  The trial court denied both requests, as it could not make a decision until returns were filed. 

Roughly one week after the trial court denied these requests, the Essex police filed returns for four search warrants, inventories of items collected, and the affidavits filed to support the warrants.  The State then renewed its request to seal the warrants, although it had not yet made any arrests.  The trial court denied this renewed motion, and requested more information.

The State responded by making a third request, this time filing as support an affidavit of an Essex detective (the “Lawton Affidavit”) describing the information the State wanted to keep private, known only to police and, of course, any suspects.  This included the condition of the Currier home, the whereabouts of some of the Currier’s items (or their absence from the home), information on a potential murder weapon, and evidence of the Curriers’ travel before they disappeared.  The State argued that to release these materials would hamper its investigation and provide information to suspects that would allow them to evade custody or provide false information when questioned.

Three times was apparently not the charm in this particular case for the State.  The trial court denied the State’s requests to seal the search warrant materials.  It also denied the request to stay proceedings for an evidentiary hearing and to stay proceedings pending an appeal, which the State promptly filed.  Before the information could be released, though, the SCOV stepped in, held up its Supreme hand, and stayed the trial court proceedings until it could resolve the appeal.

To make matters more complicated, while the appeal was pending, Essex police procured its suspect, and the State immediately withdrew its motion to seal the search warrant materials.  The SCOV gave the Free Press the materials it wanted, and the case technically became moot.  This led the SCOV to ask the parties whether they had any reason the Court should hear the case regardless of its mootness, both the State and the Free Press agreed: the same controversy could arise in the future with the same results.  More on this in a moment.

The meat of the SCOV’s lengthy opinion centers on the public request for search warrant materials.  The parties raised several issues on appeal, but the SCOV dismisses a few offhand because they weren’t raised below—a punt maneuver it also adopted in the 2001 case around which today’s case revolves: In re Sealed Documents.  The only question the majority addresses in today’s case is whether the trial court abused its discretion in denying the State’s request to seal the search warrant materials.  This requires examining Vermont’s Rules for Public Access to Court Records (the “PACR Rules”) and their interplay with the standard set out in In re Sealed Documents for sealing search warrant materials. 

A quick note, PACR rules are generated by the SCOV itself and represent the judiciary’s self-imposed system for releasing or sealing public records.  As judicial documents, court records are not subject to public records law.  PACR generally tracks public records law, but it diverges in several critical areas—primarily the question of sealing (exempting) records from public disclosure.  More importantly, the PACR rules are self-imposed, which means that the SCOV is in a different posture in this case.  Unlike statutory interpretation where the SCOV is obligated to find legislative intent, the intent behind the PACR rules is the SCOV’s own intent.  And despite what Walker Percy says of our deranged age, we as a legal profession still cling to the idea that we are our own best interpreters. 

As the first order of business, the SCOV takes up the mootness issue.  Notwithstanding the State and the Free Press’s interest in continuing, the SCOV has to make an independent decision on whether there is an exception to the mootness doctrine which limits courts to only deciding live issues and controversies.  Where a controversy is resolved before a case is decided, the need for the courts to decide the case becomes moot, and the case is ordinarily dismissed.  However, where the same controversy has the potential to rear its ugly head again in the future, and similarly evade judicial review by resolving itself before the ponderous cogs of the judiciary can reach a conclusion, the court may decide the case despite its mootness.  The SCOV majority notes that it is entirely possible the public will, in the future, request access to search warrant materials before a suspect is arrested, and that the State will ask that the materials be sealed to protect its ability to investigate the crime.  Thus, the majority concludes this case satisfies the exception, and it had best resolve the legal question posed by the present facts.

The relevant PACR Rule according to the majority is Rule 6, which grants public access to all case records unless they fall under one of Rule 6’s exceptions.  The applicable exception here is Rule 6(b)(15), which protects records and materials pertaining to the issuance of a search warrant up until the warrant’s return is filed, unless a court orders the records sealed.  The Sealed Documents case provides a standard for determining when a court may, in its discretion, seal search warrant materials.

Under Sealed Documents, a court must presume that, once a search warrant return is filed, the public has a right to access the warrant and its supporting materials.  The State can rebut this presumption by demonstrating a “compelling need for confidentiality,” in other words a “harm,” that justifies sealing or redacting portions of search warrant materials.  In making its decision whether to grant a request to seal or redact, a court must analyze each individual search warrant and supporting record, consider alternatives to sealing or redaction, and make precise, fact-specific findings as to what information in the records would cause the harm the State claims.

Where the trial court went wrong in this case, says the SCOV, is in failing to go through the exercise of specificity required by Sealed Documents with regards to each piece of information and harm claimed by the State.  So, the SCOV does the lower court’s job, examines the State’s interests and the information presented in the Lawton Affidavit, and in the process concludes that the trial court abused its discretion and got it wrong. 

Most of the SCOV’s discussion in this vein examines the State’s interest in controlling, protecting, and exploiting “access to information” to law enforcement’s benefit.  To initiate the discussion, the majority casually drops a Sherlock Holmes quote from The Reigate Puzzle into a footnote: “It is of the highest importance in the art of detection to be able to recognize out of a number of facts, which are incidental and which vital.  Otherwise your energy and attention must be dissipated instead of being concentrated.”  As we shall see, the dissent picks up this gem and rolls it into a Volkswagen-sized snowball to lob at the majority.

The majority notes that neither the trial court below, nor the State’s opponent, the Free Press, rebutted the State’s assertions that early revelation of investigative details would harm its ability to fight crime.  The SCOV also notes that New Hampshire and Washington courts have both concluded that the benefits of preventing information leakage during an investigation outweigh the public’s interest in the details. 

The majority briefly addresses the arguments raised by the American Civil Liberties Union who filed a “friend of the court” brief in support of the Free Press insisting that any harm to police interests by release of these materials would have amounted to nothing more than an “inconvenience.”  Not so, says the majority: to allow police to compare new facts against old facts not yet known to the public is to ensure that police are both forewarned and forearmed in conducting an investigation.  With confidentiality in hand, police can identify false confessors and false leads when locating and interrogating potential suspects.

Distinctly lacking from the trial court’s decision, the majority notes, was an in-depth consideration of investigative interference.  The trial court concluded without much examination that the release of the search warrant materials would not have harmed the investigation.  Instead, the trial court chose to emphasize the public’s right to be privy to the details of police investigations and hold law enforcement accountable.  But, the majority notes, such interests are already served by the Fourth Amendment’s safeguard against unreasonable searches and seizures.  The “incremental value” of public knowledge is slight compared to the potential damage to police interest in secrecy during an investigation.

Finally, the majority addresses the trial court’s conclusion that the State’s claimed harms to its investigation were only “general assertions” that could not interfere with a “completed search.”  This ignores the fact, the majority says, that “effective execution of past searches” was not the issue before the court because the investigation was not yet complete.  In addition, the State did make specific claims of investigative interference, and linked those claims to the information presented in the affidavit that it wished to keep from public knowledge.

While the State did not claim that the circumstances were unique, all that is required, says the majority, is for the State to show “exceptionally compelling” circumstances justifying sealing, such as the risk of nullifying police advantage and risking “wasteful diversion and distraction of investigative resources.”  The conditions in this case may be common to many investigations, but “commonality renders the rationale no less specific.”  The majority concludes that the trial court’s decision was “summary and unsupported,” and an abuse of discretion.

Justice Skoglund, with whom the majority agrees, and to whom the Majority refers amusingly in a footnote as “Sister Skoglund,” chooses to not “save [her] breath to cool [her] porridge,” and pens a concurrence.  Justice Skoglund writes separately to express her concern that the trial court’s decision risks treading dangerously upon the toes of the Legislature, who has already exempted from its Public Access to Records laws records produced during the “detection and investigation” of a crime (under 1 V.S.A. § 317(c)(5)).

The concurrence notes that, unlike in Sealed Documents, where the victims were dead and the suspects in custody, the victims here were still considered missing, and at the time of the trial court’s decision there was no suspect in custody.  These circumstances create a “heightened interest,” and the concurrence would prefer that the PACR Rules not be used as “a vehicle for public review of the work of law enforcement,” especially where the Legislature has already determined that the public’s interest is served with confidentiality during an investigation.

Keeping in mind the importance of maintaining separation of powers, but acknowledging the necessity of occasional overlap, the concurrence suggests that future courts considering questions such as those presented here give weight to the Legislature’s decision to exempt from public access records relating to a criminal investigation.  The concurrence would, if she could, expand the language of PACR Rule 6 to consider the status of an investigation, pre- or post-arrest, ongoing or concluded, in determining whether or not to seal records.

And so finally, after much ado, we arrive at the dissent.  Justice Dooley, joined by Justice Johnson, begins the dissent by noting that a different PACR rule should apply.  The dissent argues that Rule 7(a), as opposed to the majority’s Rule 6(b), is the relevant rule and its standard would create a much higher threshold for the State to show that a seal was warranted.  On this point, the majority disagrees.  It finds the standard set forth in 7(a), requiring a showing of “good cause specific to the case before the judge and exceptional circumstances,” to be as demanding, and possibly less so, than the standard set forth in Rule 6(b) and Sealed Documents for determining when to seal search warrant materials.  

But this justification and a flap about the meaning of the reporter’s notes to the rule opens the dissent’s first salvo in footnote 14 where it notes that the majority’s choice of rule likely has more to do with its desire for a different outcome than an straightforward application in Rule 7(a) would produce.  Notwithstanding, the majority’s attempt to equate the two standards, the dissent finds the distinction compelling and bases its subsequent discussion on Rule 7(a)’s standard.

The theme of the dissent is a lack of detail.  The dissent takes the State’s concerns, set forth in the Lawton Affidavit, at face value.  It summarizes them as 1) a need to control non-public information in order to discern credible from non-credible statements, and 2) a fear that disclosing investigation status might allow suspects to evade capture.  The dissent complains that the situation presented in this case is predictably common to pre-arrest investigations, and that the majority unnecessarily “embellishes” the State’s reasons without explanation.  The dissent finds the majority’s approach destructive of the “established presumption of openness” on which the PACR Rules are premised and intended to be applied.

As the dissent argues, the majority’s analysis leads to a new standard that effectively flips the presumption of public records on its head, favoring the seal and making the records presumptively confidential.  This will, in turn, force the press and public to show that disclosure would not likely harm the investigation—a burden they are in no position to carry and unlikely to prevail under.

The dissent makes a fairly strong point.  Search warrants will always be completed before cases are solved, suspects will be at large, and the police will always need to keep information private to distinguish between real and false leads.  If these are the bases for which a search warrant can be sealed, then the majority is announcing a new standard where the exception threatens to swallow the rule. 

In support of its position, the dissent notes that neither the majority nor the State were able to point to specific facts or localized concerns in keeping the search warrants under seal.  This leads the dissent to quote from Catch-22 to capture the vague generality of the State’s case and the majority’s willingness to find specificity in a long, but generic list of concerns.  Not satisfied with this literary point, the dissent breaks out the OED to school the majority on the meaning of “specific.”  A lesson the other three justices no doubt appreciated. 

The dissent builds upon this theme toward a crescendo.  The majority has changed the standard and the rules surrounding public disclosure of search warrants.  It is this unannounced shift that truly bothers the dissent and it announces as loudly and as clearly as possible that it believes the rules have changed.  In some ways this section of the dissent appears resigned to the change but upset that it is being smuggled into the law through an ostensible abuse-of-discretion review.  The dissent, at the very least, simply seeks a clean and clear break.  No doubt the trial court bench, who will have to rule on these challenges in the futures, wishes for the same. 

Still, the dissent is not done.  In what may be the most barbed footnote in a decision remarkable for them, the dissent takes the Sherlock Holmes quote from the majority and dissects it with a dose of graduate level literary criticism.  As the dissent notes, Sherlock Holmes depended on the details of a crime to be printed in the newspaper to conduct his investigations.  The dissent points to several occasions when the solution or at least the beginning of the solution came directly from Holmes reading the newspaper and catching a detail or fact that eluded the police.  The dissent’s point is not entirely in jest or limited to literary one-up-man-ship.  Its larger point is that the police are helped just as often as they are hindered by public dissemination of facts from a crime scene.  If the majority is going to change the rules, it should consider the unanticipated consequences. 

The dissent makes a few final notes.  It is upset at the length of time it has taken for this issue to process through the court system.  As everyone notes, the decision comes after the controversy.  By the time the decision was issued, the case was moot and no longer needed adjudicating.  This will continue to happen, and it bothers the dissent.

In the end, the dissent’s position is that a seal for warrants should be a rare and well-justified request that should normally be denied.  The alternative is secret warrants, which do not bode well for democracy, civil rights, or even basic accountability.  Yet, the dissent’s issues are a vote shy of a majority, and so it remains more jeremiad than jurisprudence.  At least until the SCOV’s next chance to review such requests.  

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