Wiggin & Dana partner and First Amendment law specialist, Mark Kravitz, comments on Giordano's closed bond hearing
Public Barred from Giordano Hearing
BRIDGEPORT - In U.S. District Judge Alan Nevas' mind, Waterbury Mayor Philip Giordano's right to a fair trial and the public's right to information couldn't coexist at a bond hearing Tuesday.
Nevas closed the proceedings— during which he refused to grant bond to the embattled mayor - based on his fear that if the press printed the FBI wiretap evidence against Giordano, chances of securing an impartial jury would be slim to none.
"With the inordinate, extensive and uncontrollable publicity that this case has and undoubtedly will continue to receive, there exists a real danger (that a fair trial is impossible)," Nevas told the standing-room-only courtroom packed with family and reporters. "It has a capacity to inflame and prejudice the entire community."
But area lawyers questioned whether Giordano's circumstances are any different from countless other defendants who try to quell potentially damaging or embarrassing evidence against them as long as possible — and if Nevas' decision has far-reaching legal implications.
"Anyone whose (electronic surveillance) evidence is mentioned in an affidavit could use this in an argument for sealing the case," said Ralph G. Elliot, attorney for the Hartford Courant, which filed a motion to keep the hearing open.
During the hour-long hearing, Giordano attorney Andrew Bowman pleaded with Nevas to bar the press and public from the proceedings in federal court in Bridgeport, saying he couldn't make the arguments he needed to make unless the hearing was closed.
"It's difficult to conceive of a case where the prejudice of open proceedings would be more damaging," he said.
Nevas told the attorneys on both sides he was "troubled" by the prospect of disseminating evidence collected through electronic surveillance before Giordano's attorneys had a chance to review it and make a motion to suppress it.
If the evidence was later deemed unlawful or inadmissible, he asked, "How do you, in effect, put the toothpaste back in the tube?"
Mark Kravitz of Wiggin and Dana, a lawyer who specializes in First Amendment law and represented the New York Times in its case to open the Michael Skakel proceedings, said he has "great respect" for Nevas, but was surprised at his decision.
Evidence is frequently aired in bond hearings, he said, that is later deemed inadmissible and never presented to a jury. Even in highly publicized cases such as that of convicted Oklahoma City bomber Timothy McVeigh, lawyers were able to weed out potentially prejudiced jurors and hold a fair trial.
"Defense attorneys frequently try to hide evidence against their clients. They usually don't get away with it," he said.
Kravitz also pointed out an unintended consequence of closing the hearing is an erosion of public confidence in the legal system.
"The importance of this hearing can't be overestimated. (Giordano) is asking to be released on bond.
The government is arguing he's a risk to the community, yet the community doesn't get to hear the evidence," he said.
But former U.S. Attorney Stanley Twardy said Nevas wasn't necessarily opening up a loophole that future defendants could take advantage of, since Nevas referenced another highly public and unusual case in his decision — the closing of the detention hearing of New York mob boss John Gotti.
"Clearly, it's unusual, very unusual to close a bond hearing. ? But this tells you that the judge is of the opinion that this is a unique case," Twardy said.
Attorneys for the papers that tried to keep the proceedings open pointed out that the media will continue pursuing the story, whether or not they are present during the legal proceedings. "Hints and guesses and speculation and surmise," Elliot said, could be more damaging than the cold, hard facts.
"It is not the court's job to sanitize the public from adverse information that might prejudice the defendant," said Thomas G. Parisot, the attorney representing the Waterbury Republican-American.