NO, NNH-CRO7-0241860 z SUPERIOR COURT STATE OF CONNECTICUT J.D, OF NEW HAVEN vs. : AT NEW HAVEN JOSHUA KOMISARJEVSKY : MARCH 22, 2011 THE HARTFORD COURANT COMPANY'S MOTION TO VACATE SEALING ORDER The Hartford Courant Company and its reporter Alaine Griffin (collectively, the “Courant’), respectfully move for an order vacating this Court's March 16, 2011 order (the Order’) sealing the witness list(s) in this case, A copy of the transcript of the Order is attached hereto as Exhibit A. | Introduction The Hartford Courant Company is a news media organization that, together with its reporter Alaine Griffin, is reporting on this case, The Courant — along with every member of the public ~ has a presumptive, First Amendment and common law right of access to the witness list(s) (the *List") sealed by the Order. Practice Book, § 42-49A; Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn, 1, 35 (2008) (discussing right of access); Hartford Courant Co, v, Pellegrino, 360 F.3d 83, 91-93 (2d Cir. 2004) (First Amendment right of access). Because the Order constitutes a blanket sealing of the List without any written motion or particularized factual basis, the defendant's request for relief offended the First Amendment. A fact-driven case-by-case analysis that focuses on the likelihood of harm to each specific witness or the defendant's ability to obtain important testimony ftom a witness must be undertaken before any order sealing all or any portion of the List could be proper. dicial District o = uu istrict of New Have ere SUPERIOR COURT TESTIMONY NOT REQUIRED FILED a 22 201 MIEF CLERK'S OrUnder well established statutory and constitutional law, and as set forth in Practice Book, § 42-49, a party seeking to seal a document in a criminal case must file a written motion and then that party bears the burden of making a three-part showing: first, that there is an overriding interest to keep the document secret; second, if there is such an interest, that the sealing order is necessary to protect that interest; and third, that no alternatives to sealing are available. The showing must be specific, and any resulting order must be narrowly tailored to protect the identified overriding interest while causing as little harm as possible to the public’s right to access. In this case, there was no written motion by the defendant and the defendant did not establish any of the required elements of proof, Accordingly, the defendant failed to provide the Court with sufficient record evidence fo justify the Order. Therefore, the Order should be vacated and the List should be made available to the public. u. Arqument A. Legal Standard and Basis for Presumption of Access Practice Book, § 42-49A(c) provides that, “[ulpon written motion of the prosecuting authority or of the defendant, or upon its own motion, the judicial authority may order that files, affidavits, decuments, or other materials on file or ladged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve _an interest which is determined to override the public's interest in viewing such materials. The judicial authority shall first consider reascnable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.” (Emphasis added.) It further requires that, in connection 2ling order issued pursuant to this section, “the judicial authority shall articulate the with any se: overriding interest being protected and shall specify its findings underlying such order and the duration of such order.” Id. As the Supreme Court recently held in Rosado, the Practice Book rules governing sealing orders represent a codification of the common-law right of access, which “traces its roots back centuries through the common law, stemming from the practice of open trials.” 282 Conn, at 34. The United States Supreme Court also has held that the right to access criminal proceedings has its roots in the First Amendment. Press-Enterprise Co. v. Superior Court, 478 U.S.1 (1986) (’Press-Enterprise I"), The Second Circuit also has concluded that the right to access documents filed with Connecticut courts is a First Amendment right. Pellegrino, 380 F.3d at 91-93, See also Clerk of the Superior Court v. Freedom of Inf. Comm., 278 Conn. 28, 54 (2008) (Palmer, J., concurring), “The rationale underlying the presumption is straightforward: Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with * Rosado, 292 Conn, at 34-35 (citing United States v. Amodeo, 71 F.3d established procedure: 1044, 1048 (2d Cir, 1995)). “[T]he bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud, Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its faimess.” fd. at 35 (citing Leveadia, inc. v. Applied Extrusion Technologies, inc., 998 F.2d 187, 161 (3d Cir. 1993))Practice Book, § 42-49A(a) recognizes these fundamental principles by providing that, in criminal cases, "there shail be a presumption that documents filed with the court shall be available to the public." ‘There was no Written Motion or Notice Prior to Entry of the Order Im this case, the defendant did not file any written motion seeking to seal the List; rather the defendant made the equivalent of an oral motion in response to this Court's general inquiry. See Exhibit A at 7-8. This is clearly insufficient under Practice Book, § 42-49A and in and of itself, justifies vacating the Order. Similarly, because there was no written motion, there was no notice to the public as mandated by Practice Book, § 42-49A(2}. This lack of notice also requires that the Order be vacated.’ The requirement of a written motion and notice is not insignificant. Because of the need for particularized findings to Justify any sealing order, it is entirely appropriate and necessary that the process be done orderly and with due recognition for the significant issues at stake; that is, upon written motion with notice to the public who then has an opportunity to be heard and object. ©. The Court Must Engage in a Case-Specific Inquiry Prior to issuing any sealing order, the Court must engage in a fact-specific, case-by-case inquiry into the necessity of sealing, Globe News. Co. v. Superior Court for the County of is true even where the sealing order is intended to Norfolk, 457 U.S, 596, 609 (1982). Thi safeguard the well-being of non-parties. /d, at 608-609. “[AJs compelling as that interest is, it Talthough a court can order otherwise with respect to notice, that did not sccur in this case. See Practice Book, § 42-49A(e) 4does not justify a mandatory closure rule, for It is clear that the circumstances of the particular case may affect the significance of the interest." /d. (trial court should determine on a case-by- case basis whether closure of courtroom Is necessary to protect the physical and psychological welfare of a minor sexual assault victim). The court's inquiry should also consider the realities of the matter at bar, including whether the proffered reasons for sealing are actually achieved by the sealing order sought. An order limiting the public's access to a document that contains information that will inevitably and shortly become public information defies logic and common sense. Globe News Co., 457 US. ‘at 609-10 (“Although §16A bars the press and general public from the courtroom during the testimony of minor sex victims, the press is not denied access to the transcript, court personnel, or any other possible seurce that could provide an account of the minor victim's testimeny. Thus § 16A cannot prevent the press from publicizing the substance of 2 minor victim's testimony, as well as his or her identity.’) Al of these constitutional requirements effectively are codified in Practice Book, § 42- ABA, D. Merely Asserting a Possibility of Unwelcome Attention Fails to Overcome tho Presumption of Access ‘This Court's broad, conclusory statement based on the defendant's oral suggestion that ‘there's some reason to believe that witnesses might ~ potential witnesses might receive unwelcome attention that might discourage their willingness to testify in court” is incapable of meeting the standards proscribed by Practice Book, § 42-498 and its common-law and constitutional antecedents, The Practice Book requirements — namely, that the moving party demonstrate that a sealing order is ‘necessary te preserve an interest which is determined to 5override the public's interest’ in accessing the documents, and that any sealing order be “no broader than necessary to protect such overriding interest" - impose a substantial burden on the movant, as illustrated by the wealth of case law discussing the nature of the First Amendment Tight of access to court documents. See, e.g, Press-Enterprise Il, 478 U.S.1; Richmond Newspapers, inc. v. Virginla, 448 U.S, 856 (1980); Matfer of New York Times, Co., U.S. v. Blaggi, 828 F.2d 110, 113 (2d Cir. 1986), cert. denied, 485 U.S. 977 (1988); Westmoreland v, Columbia Broadeesting System, Inc., 752 F.2d 16, 23 (24 Cir. 1884). Before the right of access te court records can be abridged, Siaggi, following Press- Enterprise 1, instructs that “documents may be sealed [only] if ‘specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” 828 F.2d at 113 (citing Press-Enterprise I, "Broad and general findings by the trial court, however, are not sufficient to justify [sealing).” Press-Enterprise Co. v. Superior Court, 454 U.S, 501, 510 (1984) ("Press-Enterprise /") (emphasis added). Although the interest identified by the defendant in this case might theoretically justify the sealing of some limited information in a criminal proceeding under the appropriate factual circumstances, merely articulating the interest is insufficient to overcome the presumption of openness, Press-Enterprise Il, 108 S.Ct, at 2744 (‘The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [the right to a fair trial”) E, The Court Must Make Specific Findings If the Court determines to seal certain documents or portions of certain documents, it must explain why sealing was necessary and why less restrictive alternatives were not 6appropriate. Practice Book, § 42-494; Press-Enterprise |, 464 U.S. at 510-11. The Cours findings must be specific enough to enable an appellate court to determine whether its decision was proper; if the Court decides that a restriction of the right of public access is warranted, the Court can even file its statement of reasons and specific findings under seal, Id. See also In re Washington Post Co., 807 F.2d at $91. This did not occur in this case. ll Conclusion In light of the clear requirements of Practice Book, § 42-49A and its constitutional underpinnings, and based on the case law from this and other jurisdictions, it is apparent that the Order sealing the List should be vacated, and the Courant respectfully so moves, THE HARTFORD COURANT By William S. Fish, Jr. ‘Amy E. Markim Hinckley, Allen & Snyder. LL 20 Church Street Hartford, CT 06103 Tel, (860) 725-6200 Fax (860) 278-3802 Juris No. 428858ORDER ‘The foregoing Motion, having been heard, is hereby ORDERED: GRANTED / DENIED this day of 2011. JudgeCERTIFICATE OF SERVICE This Is to certify that on March 22, 2011, a copy of the foregoing was delivered by first- class mail, postage prepaid, and by facsimile to the following parties of record: Jeremiah Donovan 123 Elm Street, Unit 400 PO Box 554 Old Saybrook, CT 06475 Fax; (860) 386-3181 Walter C. Bansley, Il! Bansley Law Offices, LLC 20 Academy Street New Haven, CT 08510 Fax: (203) 773-1904 Todd A. Bussert 103 Whitney Avenue, Suite 4 New Haven, CT 08510-1229 Fax: (203) 495-9785 Michael Dearingten State's Attorneys, 236 Church Street New Haven, CT 08510 Fax: (203) 788-6400 Lau S Willam S. Fish, Jr. 2pezanw2aN Anh w Ne 10 a 2 13 4 as 16 Ww 18 19 20 21 22 23 24 25 26 27 komis31611. txt march 16, 2011 1 NNH-cRO7-0241860 : SUPERIOR COURT STATE OF CONNECTICUT : BUDICIAL DISTRICT OF vs. : NEW HAVEN JOSHUA KONISARIEVSKY : ARCH 16, 2011 BEFORE: THE HONORABLE JON C. BLUE, sudge APPEARANCES: Representing the state MICHAEL DEARINGTON, ESQUERE State's Attorney GARY NICHOLSON, ESQUIRE Senior Assistant state" State's Attorneys’ office 235 church Street New Haven, Connecticut 06510 Attorney Representing the Defendant Joshua Komisarjevsky: JEREMIAH DONOVAN, ESQUIRE Special Public Defender 123 Elm Street, Unit 400 Old Saybrook, Connecticut 06510 WALTER C, BANSLEY, IIT) ESQUIRE Special Public Defender Bansley Law offices, LLC 20 academy street New Haven, Connecticut 06510 Reported ay: Jean kindley Certified Court Reporter 235 church Street New Haven, Connecticut 06510 March 16, 2022 ? some time, Mr. Bansley, but we'll try not to make you choose between the two judges. we'll try to, you Page 110 1 Fr] 13 14 1s 16 7 1B 19 20 a1 2 23 24 25 26 Komi s31621. txt know, do something that fits into our respective schedules. Third, T want to go over che witness list for -- well, I should just go back and say, therefore, unless you hear from me, you're scheduled to be here on Monday the 21st. I wanted to go over the witness list. The original thought is that we were to have one overall witness list. I've been provided with two witness Jists, one from each side, which is fine, but one question that 1 need to take up is that apparently there has been a request from the media for witness lists, and 1 don’t know what the parties have to say about that. 1 haven't really ruled on that one way or the other. obviously, in what I call the usual voir dire situation, where the witness -- potential witnesses are named in open court, T mean, anybody is free to order a transcript of that proceeding. This is going to be a little different because we've decided to give written lists to the jurors or potential jurors, and I don't know what the parties think about having these made public or perhaps sealed at least temporarily pending the trial MR. DEARINGTON: We will defer to your Honor. THE COURT: What does the defense think? MARCH 16, 2012 8 MR. BANSLEY: Object to it being released to the press, your Honor. I would point out in the Hayes case ~~ not that the Hayes case should be precedent for everything -- it wasn't released in the Hayes case. Nore importantly, it has been presented to the Court that the defense has had difficulty with page 210 aL 2 1B 14 as 16 wv 18 19 20 a1 2 23 24 2s 26 Komis31611. txt respect to witnesses because of the media attention, which == THE COURT: I understand that. Here's what won't ask for any more argument at this time Here’s what I'm going to do: I'm at this point going to order the witness list sealed without prejudice. If, hypothetically, any media organization files a motion to see the witness list, accompanied by a memorandum of law pointing me to relevant authorities, 1'11 schedule a hearing and Tet the chips fall as they may. But I think that Mr. Bansley's point is at least initially persuasive that there's some reascn to believe that witnesses might -- potential witnesses might receive unwelcome attention that might discourage their willingness to testify in court. So, I think that's reason to seal the list without prejudice and that will be done. So, the ist won't be automatically released to the news media. And right now because the words are not being spoken in open court, but are simply being shown to a select group of potential jurors, 1 MARCH 16, 2011 9 believe from a galloping horse that there is no constitutional or other problem with that. If there is, I'm sure that counsel for a news media can inform me what that problen is. Then, as T said, r'11 let the chips fall as they may. third, I want to go over -- oh, by E mai] my clerk has received from Attorney Bussert about 20 or 25 minutes ago an £ mail that said that if the petit family has a room to gather in, and I understand by Page 3Komi s31611, txt direction of the presiding judge that they do, that the Komisarjevsky family would Tike such a room. I personally find that te be a perfectly fair request. our only problem is that we received this about a quarter to ten, I immediately talked to Judge Grian Fisher, who is the administrative judge of the courthouse, and he told me that to report to you that such an arrangement can be made. It just may not be today, and it may not be tomorrow, but I'm certainly hopeful that by next week; that's no guarantee on my part, but we will do everything we can to arrange a room for the Komisarjevsky family wR. BUSSERT: We appreciate that, your Honor, on behalf of the family. THE COURT: Once again, we're 2 little sTowed down by the fact that william Sadek, the chief clerk, who is really, being practical, in charge of the facility, is on vacation, which sounds Tike a good ARCH 16, 2011 au NNH-CRO7-0241860 i SUPERTOR COURT STATE OF CONNECTICUT : DUDICIAL OXSTRICT OF vs. NEW HAVEN JOSHUA KOMISARIEVSKY : marcy 16, 2011 CERTIFICATION 1, JEAN KINDLEY, do hereby certify that the foregoing is a true and accurate transcript of the above entitled matter, heard before the Honorable Jon C. Blue, Judge of the Superior Court and held at the Superior Court on the 16th day of March, 2011. Page 4Exhibit A7 18 19 20 21 22 23 24 25 26 a ona Komi s31611.txt Page 614 15 16 wv 18 19 20 21 22 23 24 25 26 a7 wow nnawne 10 a 12 B 14 16 Komi s31611, txt pated this 17th day of March, 2011. JEAN KINDLEY certified Court Reporter oma MARCH 16, 2011 2 NNH-CRO7-0241860 : SUPERTOR COURT STATE OF CONNECTICUT 7 JUDICIAL DISTRICT OF vs. 7 NEW HAVEN JOSHUA KOMESARJEVSKY é march 16, 2011 CERTIFICATION I, JEAN KINDLEY, do hereby certify that the foregoing is a true and accurate electronic transcript of the above entitled matter, heard before the Honorable Jon c. Blue, Judge of the Superior Court and held at the superior court on the 16th day of March, 2011. pated this 16th day of march, 2011. JEAN KINDLEY, certified Court Reporter Page 5