10/03/2024 By Connecticut Law Tribune Editorial Board
As long as history remembers, the powerful have feared those below them will learn what they know. Hence trade guilds’ secrecy, fear of slaves’ literacy, women’s education… knowledge being power, the powerful aren’t crazy about sharing it.
Of course, there are incontrovertibly valid needs for confidentiality and secrecy. Loose lips do sink ships. The forces of secrecy and openness are in a perpetual scrum. One such contest arises when an “open” murder case has long grown cold. At what point should it become less the exclusive property of the police?
This year, the Connecticut courts have carefully drawn new yard lines on this muddy field. It’s in the Freedom of Information case between documentary filmmaker Madison Hamburg and the Madison Connecticut police. Madison’s mother Barbara was found on the front lawn of their home, bludgeoned to death in 2010.
Despite great diligence, and some inconclusive DNA, the police haven’t sufficient evidence for an arrest. They rebuff Freedom of Information requests because the case is open. The open case FOIA exception has two parts. Information can be withheld, it says, if it is “to be used in a prospective law enforcement action.” The second factor is that it be “prejudicial to such action.”
But what does this mean? Can the police just speculatively imagine a magical break in the case? A likely break? Or must police have an actual prosecution in the pipeline? The FOI Act is silent about where in this range “a prospective action” needs to be.
In a hearing before the Freedom of Information Commission, the police’s claimed prospects were found too speculative. They were ordered to honor the FOI request. Instead, Police Chief John Drumm appealed to New Britain Superior Court where Judge Daniel Klau brought blurry terms into focus. He “concludes that the phrase ‘prospective law enforcement action'” in the open case exclusion refers to “an arrest and prosecution, the occurrence of which is at least a reasonable, not a mere theoretical, possibility.” (emphasis added.)
And to aid deliberation, he created a seven-factor test. It includes the time elapsed since the crime, and since finding the last new evidence. It considers whether the case is classified as cold. How many investigators are still assigned? How much of their time is being expended? Is there a real suspect or only speculation? Are anticipated advances in science, like emerging DNA technology, likely to revive the case?
In February, a seven-justice panel of the state Supreme Court approved the new test and the “reasonable possibility” standard. However the original FOIC decision stated police had no suspects. Yet the police detective testifying for the town said DNA indicated male Hamburg lineage. (Madison Hamburg was asked whether he was in touch with his father and whether he thought his father killed his mother.) Due to this apparent contradiction, the high court remanded the case to the FOIC for a hearing and in camera review this fall.
Associate Justice Raheem Mullins, who wrote for the high court, noted that eventually, cold cases benefit from a fresh pair of eyes, or even “millions of eyes” in our age of the Internet and crowdsourcing. For all the cases where accidental release of facts derailed a prosecution, there are likely as many where more open public information solved the matter, the court noted.
So why do people find murder mysteries so gripping? Why are cold cases so intriguing? It may be due to an innate human desire for psychologically satisfying resolutions to problems. Sometimes, in the absence of real evidence and facts, conspiracy theories flourish.
Today, when public faith and confidence in government officials, experts, and scientists is openly challenged and ridiculed, it is easy for some to conclude that our truth-finding systems are failing. Or rigged. But the social thirst for real understanding is not quenched by conspiracy theories.
The heart of American government is based on the notion that the entire citizenry – the public – is the source of its power and authority. And while the masses of low information voters and the trolling Internet mob can be cause for despair, the collective resource of “the people” includes untapped minds.
Modern breakthroughs are often the work of a beehive of thinkers. It’s not Wilbur and Orville in a bicycle shop anymore. Therefore, methodical consideration needs to be applied before reflexively invoking blanket confidentiality and secrecy.
Whether or not some of the Barbara Hamburg investigative files are now ready to for the light of day, one thing is certain: It is a truly positive step that the Connecticut courts have mapped an escape route from the dark crypt of the “open investigation.”