ARCHIVE 10/10/08: Preview of Stamford PD’s ‘Benoit Wikipedia Hacker’ Defense Before Connecticut FOI Commission

Preview of Stamford PD’s ‘Benoit Wikipedia Hacker’ Defense Before Connecticut FOI Commission

Friday, October 10th, 2008

The corporation counsel’s office in the City of Stamford has kindly shared with me the case it intends to cite in defending my complaint to the Connecticut Freedom of Information Commission over the Stamford Police Department’s refusal to release the video of the June 2007 interrogation of “Benoit Wikipedia hacker” Matthew Greenberg.

Let’s be careful not to exaggerate the significance of my skeptical view of the relevance of their purported precedent. I am, after all, the biased complainant, and my legal knowledge is limited.

However, I must say I am underwhelmed by State v. Luis F., 84 Conn. App. 264.

Luis F. was a sex offender who unsuccessfully appealed his conviction; part of the appeal was based on the trial court’s ruling to admit into evidence a videotaped interview of him by investigators. Stamford PD’s apparent upcoming contention that the Luis F. case “proves” that the courts regard police video interrogations, for Freedom of Information Act purposes, as identical to signed statements by witnesses seems to me quite a stretch in several respects.

First and foremost, the Luis F. court said no such thing. Rather, the video was held to be admissible in court under a complicated test, developed in another case called State v. Whelan. Those are standards of reliability and hearsay, not of public disclosure. Though the Connecticut courts were affirming, in a certain sense, the equivalence of videos and paper-based statements, that was for the functional purpose of a criminal trial. The case was not categorically proclaiming police videos exempt from FOI.

A further point highlights the irony here. Prosecutors in Luis F. (backed by the police who arrested the defendant) were the ones pushing for disclosure of the video. The police in my FOI dispute now are trying to hijack that standard to support a claim that a video should be concealed. True — the disclosure in the first instance is to a jury, and the concealment in the second instance could be argued, rather circuitously, to be preserving the integrity of such potential controlled disclosure. Still, the only truly common principle seems to be the self-appointment of the affected public agency as the arbiter of what records, and under what circumstances, are subject to public release. I expect the Connecticut FOI Commission, which the state legislature established for that express role, to take a different view.

To illustrate the misapplication of Luis F., let’s play out a hypothetical that has Matthew Greenberg later at trial for something shown on the June 29, 2007, Stamford police video interview. Unless you’re a complete lunatic, you don’t seriously believe the video shows that young Greenberg was involved in the commission of the Benoit double homicide/suicide or a first-hand witness to it; but let’s say an overzealous prosecutor suddenly decides to bust him on some obscure law prohibiting Internet vandalism.

In that case, at trial, whether the video was released under FOI or not, Greenberg would still have the opportunity to argue that it should not be played before the jury. Of course, if Luis F. is a guide, he’d probably fail in that effort!

So I say to my stonewalling adversaries: nice try but no sale.

Irv Muchnic