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Sunday, September 21, 2014 |  Madison, WI: 56.0° F  Overcast
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Judge backs secrecy on Zimmermann 911 call
Niess lays out case for openness, then rules against media seeking it

It was just like what always happens in courtroom dramas on TV. Whatever arguments the judge starts making when he -- actually, more often than not, an African American woman -- starts ruling from the bench, is exactly the opposite of what the ruling will be.

But people don't expect real-life courtrooms to be whiplash chambers, where judges launch into pronouncements they don't really mean. And so when Dane County Circuit Court Judge Richard Niess began making his ruling on the lawsuit brought by media seeking the release of the recording of Brittany Zimmermann's mishandled call to the 911 center, you could hear the cops in the courtroom emit sighs of defeat.

Niess' argument, which he began at 12:13 p.m., after hearing final arguments from both sides, essentially boiled down to this: The public has an undeniable interest in the contents of Zimmermann's call and the public authorities have thus far proved themselves completely untrustworthy in every respect regarding their handling of it.

Then, at 12:28, Niess announced his ruling: He was blocking release of the recording, on grounds that he had decided to completely trust what the authorities had to say.

It was a jaw-dropper, especially because the reasons Niess gave for his ruling were as threadbare and speculative as the ones he had rejected.

The judge began his ruling by reading the preamble to the state's open records law, which sets forth an unequivocal presumption of complete public access. "I don't know how the Legislature could have put it more strongly," he said.

Niess affirmed the public's right to know what happened in this call, which everyone seems to agree involved "a failure of the 911 system." He stressed that the recording belongs not to the district attorney or the police or the county, but "to the people." Cue swelling patriotic music.

The judge described the inconsistent claims of public officials in response to the call "clumsy at best," noting that these included "outright" falsehoods, an apparent reference to statements made by former 911 Center Director Joe Norwick.

These inconsistencies, the judge said, were "plain inexcusable." He did not let on that he was about to excuse them. He said the public was right to be suspicious of the explanations given by public officials. He did not say he was about to go to bat for gullibility.

Judge Niess quoted Justice Brandeis' famous statement about sunlight -- that is, openness and transparency in government -- being "the best disinfectant." He chastised the defense, represented by Assistant City Attorney Roger Allen, for arguing that a fair amount of information has already been released. In fact, Niess pointed out, most of this would never have happened were it not for the media lawsuit.

In time, Niess pondered his obligations under the law to consider the wishes of the Zimmermann's family, which opposes the release. He decided he could not legally take these into account, since these were not among the reasons initially cited by the authorities in denying release of the call.

And then the judge did his complete about-face, ruling that the defense had presented "clear evidence" that release of the tape would harm its ability to catch Zimmermann's killer.

For a moment it seemed as though Niess had misspoke, since he proceeded to dismiss as insubstantial the argument made by police that release of the recording would make it harder to thwart false confessions. He described this as a weak reason, one that could not "carry the day."

But Niess proceded to endorse the police argument that foreknowledge of the recording would make it harder to interrogate suspects. He said detectives look at body language or may use a "ruse" to trap suspects into confessing, a strategy Madison police have in the past employed to disastrous effect. And information that is made public could "compromise the reliability of witness accounts."

Niess did get around to commenting substantively on the contents of the recording, which he has heard. He said the recording provided no answers as to why the 911 operator did not hear what we now know to be the sound of a woman screaming: "There is nothing in this tape that answers the question of why it was not responded to." Nor, he said, was there anything in it to "substantiate equipment concerns."

In other words, the recording shows that the 911 operator, union officials and county officials including County Executive Kathleen Falk have all lied to the public in asserting equipment failures or the absence of clear indications of need.

And Judge Niess' decision protects them.

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