Judge unseals warrants, documents in murder investigation

DELAWARE–In mid-December, a federal district judge in Wilmington affirmed an order unsealing search warrants and related documents in the investigation into the disappearance of Anne Marie Fahey, scheduling secretary to Governor Thomas Carper.

The court also ruled that Thomas Capano, the subject of the warrants and with whom Fahey had ended an intimate relationship, had no right to review the documents prior to their public disclosure.

The court said that the “scales of justice start out tipped in favor of public disclosure” because of the recognized presumption of openness, and that the right of access extends to search warrant affidavits following their execution. Capano had no legitimate expectation of privacy in the search warrant materials, in part because much of their contents were already in the public domain, the court noted.

The decision came in response to a challenge filed by two newspaper publishers after the government asked the court to seal warrants and supporting documents seeking materials from Capano’s home and vehicles, as well as blood and hair samples.

After the News Journal Company and Philadelphia Newspapers, Inc. petitioned the magistrate for access, Capano’s counsel argued that unsealing the documents “implicated” his client’s privacy interests. Capano’s counsel filed under seal a motion to preview the materials prior to their public disclosure, asserting that he needed access to the documents in order to determine whether to challenge the lawfulness of the searches.

During a court hearing, the government moved to unseal the documents, arguing that disclosure would no longer jeopardize its investigation. In early November, the magistrate ordered that redacted copies of the documents be released, holding that the media’s common law right of access to judicial documents outweighed Capano’s privacy interests. The court reasoned that Capano’s identity had “never been secret” and that any injury had “already occurred.” The magistrate denied as moot Capano’s motion to preview the documents.

Capano filed objections to the magistrate’s order with federal district Judge Sue Robinson, who upheld the order and denied Capano’s motion to preview the documents.

Capano has not been charged with any crime. The New York Times reported that an FBI agent’s affidavit unsealed in early January stated that blood stains matching Fahey’s blood type were found on a radiator, woodwork and laundry closet door in Capano’s house.

According to The Washington Post, Capano’s counsel, Charles Oberly III, compared the FBI’s treatment of Capano to that of Richard Jewell, who was identified in the media as the government’s prime suspect in the Olympic Centennial Park bombing but who was later cleared of any involvement. (In re Capano Search Warrants; Media Counsel: Richard Elliot, Jr., Wilmington)