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6.29.2001 00:21
Judge
weighs
publicizing
affidavit
• The FBI document supported its quest for a search of Providence City Hall in 1999. The government favors its release, but defendants oppose it.
BY MIKE STANTON
Journal Staff Writer
PROVIDENCE
-- A lengthy government affidavit that was alternately characterized as one-sided and packed with details of corruption at Providence City Hall was the subject of a federal court hearing yesterday regarding whether the document should be made public.
The hearing, prompted by The Providence Journal's motion to unseal the Operation Plunder Dome affidavit, offered a civics lesson in the competing constitutional interests of a free press and a fair trial.
After listening to arguments for more than an hour, Chief U.S. District Judge Ernest C. Torres reserved judgment, saying that he would issue a written decision within the next few weeks.
Mayor Vincent A. Cianci Jr. and five others facing corruption charges oppose release of the affidavit written by FBI Special Agent W. Dennis Aiken, the lead agent in Operation Plunder Dome. The affidavit was filed with the court more than two years ago in support of the government's request for search warrants of City Hall.
A federal judge declined The Journal's motion to release the 94-page affidavit in 1999, after federal prosecutors objected that it would compromise an ongoing criminal investigation.
Now, one trial, six convictions and six indictments later, the government has dropped its opposition to the affidavit's release, saying that the matters discussed are no longer under investigation.
Yesterday's arguments revolved around whether publicizing the affidavit would compromise the defendants' Sixth Amendment right to a fair trial, or whether keeping it secret would frustrate the public's First Amendment right to an open justice system.
C. Leonard O'Brien, lawyer for former Cianci aide Frank Corrente, argued that release of the affidavit would cause "a bonfire" of prejudicial pretrial publicity.
O'Brien pointed to what he called biased "chapter headings" in the affidavit, such as "The Only Thing Cianci Worries About Is Money" and "Corrente, Absolutely They Know What The (Expletive) I Mean."
The affidavit, O'Brien complained, seemed written with a broader audience in mind than the judge who approved the search warrants. The release of the document, filled with "opinions, deductions and speculation," could provide the government with a tactical public advantage, he argued.
Asst. U.S. Atty. Terrence P. Donnelly defended the headings, saying that they were supported by verbatim taped conversations or other direct evidence.
"I've been a prosecutor since 1987, and I've never seen an affidavit like this," said Donnelly. "But, then, I've never seen a case like this."
To defense complaints that the affidavit seemed "excessive," Donnelly responded that the crimes alleged were not simple, such as a bank robbery or dealing drugs from an apartment.
"These crimes are subtle," said Donnelly, involving such allegations as racketeering and money laundering. The affidavit, he added, had to be written to satisfy a judge that there was probable cause for "a multitude of search warrants of City Hall."
Richard C. Bicki, lawyer for tow-truck operator and auto-body shop owner Richard Autiello, argued that releasing the affidavit would fly in the face of Torres's May 15 gag order, aimed at muting pretrial publicity. Furthermore, he noted, the gag order would prevent defense lawyers from making public comments in reponse to the accusations contained in the affidavit.
Howard A. Merten, The Journal's lawyer, argued that public interest in Operation Plunder Dome is high, and that previous court decisions support the right of public access to affidavits filed in support of search warrants.
"The public has the right to as much access as possible given these defendants and these charges," argued Merten.
Merten noted that the trial is not expected to begin until next spring, and that Torres has other means to ensure a fair trial, including the voir dire process through which any bias among prospective jurors can be screened.
Prosecutor Donnelly said that the government does not believe releasing the affidavit would jeopardize the defendants' rights to a fair trial, noting that much of the information discussed has already become public knowledge.
"Both ends can be achieved by the affidavit's release," Donnelly said.
Torres, who questioned both sides carefully, concluded that the decision was so important that it required a written decision, which he promised to issue within the next few weeks.
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