Anyone want to guess what shows up on the front page of the Burlington Free Press tomorrow morning? My money is on this morning's Vermont Supreme Court decision, which sided with Chittenden County State's Attorney T.J. Donovan — and against the Free Press — to keep confidential the search warrants, police affidavits and other documents related to the ongoing missing-persons case involving William and Lorraine Currier of Essex (pictured), who haven't been seen or heard from since June 8.
(For background on the Freeps' latest records battle, click here.)
In today's three-to-two split decision, Vermont's highest court effectively sided with Donovan by overruling the lower court's ruling, which had denied the state's attorney's request to keep those documents secret. Differentiating between this case and an earlier, unrelated one, in which the victims of a crime were already dead and suspects were in custody, the majority of justices found that:
"Here, in contrast, the putative victims are missing and no suspects are in custody. Under these circumstances, both the state and the public have a heightened interest in not undermining the criminal investigation through the revelation of facts not generally known to the public. Although the public and the press generally have a presumptive right to court documents, that right may be trumped by the State's, as well as the public's, interest in preserving the investigation of a potentially serious crime, especially when the right to access does not serve as a check against unjust conviction, excessive punishment, or the unwarranted taint of criminality."
But Associate Justices John Dooley and Denise Johnson disagreed. Arguing on behalf of himself and Justice Johnson, Dooley writes that, in his opinion, the State (i.e., Donovan) did not demonstrate a compelling need for keeping specific documents confidential:
"There is very little special about the facts the State wants to withhold in this case, and the State wants to withhold some facts even if insignificant. There is no specific showing that disclosing the facts that are in the search warrant requests and affidavits will make it easy for suspects to evade detection."
Dooley also points out that the state has already acknowledged that it could have redacted any sensitive material, while other material has already been made public. "To the extent that this has become an all or nothing decision," he adds, "the fault for that circumstance lies with the state."
If Vermonters want to broaden the exemption for public access to search warrant materials involved in an open criminal investigation in which a suspect has yet to be charged, Dooley suggests changing the law rather than siding with "general assertions that would apply in every case."
For weeks, the Free Press has waged an ongoing battle, if not in the courtroom then at least in the court of public opinion, that the state's attorney and police haven't made a compelling argument in this case for exempting these documents Vermont's open records law.
With little, if any, substantive news to report on the case coming out of the Essex PD, the Free Press has run near-daily reports on every legal burp and gurgle in the fight to get its hands on those documents. On July 9, veteran Free Press writer Mike Donoghue, who also serves as executive director of the Vermont Press Association, circulated an editorial from the Caledonian Record to all VPA members for possible publication. Called "Murky Transparency," the editorial takes issue with Donovan's argument and commends the lower court judges who sided with the free Press and ruled for public disclosure of those documents.
Thus far, members of the Currier family have declined to comment publicly on all the legal wrangling, explaining to one Essex police officer that the family doesn't want to say or do anything that might alienate police, prosecutors or the press. As if their current predicament weren't dicey enough as it is.