Monday, October 09, 2006

Missed Opportunity To Fix Broken Court System

For release Sunday, October 8, 2006




Two study commissions, one appointed by the governor, the other by the acting chief justice, have just made serious reviews of the secrecy and unaccountability of Connecticut's courts. Whether by administrative directive, new legislation, or even a state constitutional amendment, the courts almost certainly will become much more open and accountable.

But the reviews by the two commissions missed an opportunity to emphasize and explain due process of law, an opportunity so much more missed because of the federal government's trampling of due process amid the contrived panic over terrorism.

The opportunity was presented by state government's victim advocate, James F. Papillo, who brought a parade of crime victims to speak at commission hearings. The crime victims contended that the law should authorize them to determine which court proceedings and records are open and closed. The state public defender's office made similar arguments on behalf of criminal defendants.

And no one on the study commissions talked back to them.

Yes, by definition a criminal court proceeding can be full of pain for everyone. But the alternative -- censored justice, the sort of justice advocated by crime victims and defendants alike -- is a contradiction in terms and would prompt complaints even from those who clamored for it as soon as they were aggrieved by a verdict.

For the court reform commissions, the term "crime victim" was a misnomer. For any court that considered someone a victim prior to a verdict would be taking sides without due process of law, exactly what a court must not do. A court exists to determine whether a crime has even been committed and whether anyone accused is guilty as charged. That is, until a verdict, as a matter of due process of law there is no crime victim at all; there is only an accuser. As a matter of due process and constitutional rule, accusers must account for themselves in court just as defendants must. And being ultimately responsible in a democracy, the public must be in a position to judge the fairness of court proceedings.

None of this can be accomplished unless court proceedings and records are fully public.

Of course in their pain crime victims might not understand due process. But for Victim Advocate Papillo and the study commissions not to try to explain it to them was patronizing, and their failure to explain it to the public was dangerous, since due process often hangs by a thread.

After all, due process is not so hard to explain and indeed has been explained well many times in popular art, like the novel and film "To Kill A Mockingbird," wherein a young black man in Alabama is falsely accused and convicted of rape. That kind of thing happened often in the segregated South and it still happens everywhere today, as Connecticut knows because of the recent reversal of the rape conviction of a black man from Hartford who was cleared by DNA evidence after serving 18 years in prison. Should the false accusers in those cases have been allowed to determine the openness of the proceedings?

A crime victim who addressed the court reform commissions remarked in passing that she had been assaulted by her ex-husband while he was free on bail on similar charges. That delay in prosecution and not the repeal of due process of law should be the focus of the victim advocate -- the refusal of Connecticut's courts to give priority to violent crime. People are dead because of that refusal, like the bank executive Diane Gellenbeck, raped and murdered in Hartford in 1989 by a man who had been free on bail for a year and a half on charges of abducting other women. This disgrace deserves Connecticut's next study commission.

* * *

My last column addressed the Superior Court's quashing of a subpoena issued to former Chief Justice William J. Sullivan by the General Assembly's Judiciary Committee. The column said "the Judiciary Committee's leaders affected to be disappointed -- but were not really disappointed, not disappointed enough to do anything about it, not disappointed enough to move to impeach anyone or to legislate the General Assembly's authority back into law." The committee's co-chairmen, Sen. Andrew J. McDonald and Rep. Michael P. Lawlor, note that their committee is appealing the subpoena decision to the state Supreme Court and say they favor impeaching Sullivan when the legislature reconvenes next year.

That column also criticized the Governor's Commission on Judicial Reform for failing to affirm the need for a state constitutional amendment recognizing the authority of the legislature and governor to legislate rules for court openness. A commission member, Martin B. Burke, notes that the commission recommended appointing another commission to study that issue.


Chris Powell is managing editor of the Journal Inquirer in Manchester, Conn.

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