A federal appeals court judge considering the secrecy of a Nassau police-misconduct report said he was baffled over why county legislators were forced to sign a court's confidentiality agreement before being allowed to see a report the county had itself produced.
"I'm a little puzzled," said the judge, Gerard E. Lynch of the U.S. Court of Appeals for the Second Circuit, in a case over whether Newsday and News 12 Long Island should get access to more details into how police failed to protect domestic violence victim Jo'Anna Bird.
Those legislators had been considering whether to approve a $7.7 million settlement with Bird's family, and one of them who signed it, then-presiding officer Peter Schmitt, who is now dead, was later held in contempt for going on News 12 to disclose some of what he learned in the report.
The county's attorney, Dennis J. Saffran, acknowledged being perplexed himself over the unusual requirement but said it was done out of caution to obey what they contended was a judge's gag order keeping the document, given to the Bird family attorneys, secret.
The back-and-forth came Wednesday during oral arguments, held in Manhattan, where a three-judge panel grilled attorneys for more than an hour in a yearslong legal battle by the news organizations to unmask details of the Bird case.
Central to this latest dispute is whether the secret report became a "judicial" document because of the contempt proceedings. Such a designation under court rules would make it much harder to keep secret.
In past successful press freedom cases, the news organizations' attorney, David Schultz, successfully petitioned the Pentagon to readmit expelled reporters from the military commissions at Guantánamo and sued to get New York teacher ratings.
Wednesday Schultz told the court that the public has a First Amendment right to know the details of why Schmitt was held in contempt.
Among other arguments, the county and police union say the report should stay secret because the officers mentioned in it have a right to privacy and that the report reveals sensitive law enforcement techniques.
Bird, 24, of New Cassel, was brutally stabbed to death four years ago this month by her estranged boyfriend, Leonardo Valdez-Cruz, later convicted.
In the TV interview, Schmitt said 22 police officers were involved, that police didn't enforce protective orders and that police gave Valdez-Cruz a cellphone while in jail that he then used to repeatedly harass Bird.