While sitting in his Dane County courtroom last week, I didn't hear Judge Richard Niess give a single good reason in support of his decision to let local authorities continue to withhold the recording of murder victim Brittany Zimmermann's mishandled 911 call.
As I've noted elsewhere ("Judge Backs Secrecy on Zimmermann 911 Call," TheDailyPage.com, 12/22/08), Niess' ruling was wildly at odds with his reasoning. He observed that local authorities have on this matter been completely untrustworthy, even in their arguments for suppressing the recording. Then, in a stunning display of pretzel logic, he came around to declaring that he had decided to trust them.
But Niess' failure to give good reasons for his ruling doesn't mean there aren't any. In fact, there's one reason for suppression that's beyond good.
The public airing and re-airing of Zimmermann's failed effort to summon help will surely bring pain to her family and other loved ones, who have suffered enough.
If it were up to me, which of course it isn't, I would spare them this, even if that meant no one would be able to hear this call. No one, that is, besides those who already have: about a dozen 911 Center officials; Dane County Executive Kathleen Falk and her spokesperson; Corporation Council Marcia MacKenzie and one of her assistants; Madison Mayor Dave Cieslewicz and one of his aides; District Attorney Brian Blanchard and someone else from his office; Madison police officials including Chief Noble Wray and Capt. Carl Gloede; Assistant City Attorney Roger Allen; and attorneys for the media outlets that have fought for its release. Among others.
As it happened, however, Niess explicitly denied that he was acting to spare Zimmermann's family from hurt. He concluded that people do not have a reasonable expectation of privacy in calling 911. And he noted that, since the authorities did not cite privacy concerns in their initial denial, he did not believe he was obliged or even allowed to take this into account.
Rather, Niess ruled against release because he agreed with police claims that doing so would make it harder for them to catch Zimmermann's killer.
The judge cited testimony that police like to watch the body language of suspects as they react to such stimuli. They also want to preserve their ability to lie about what evidence they have, to con suspects into making incriminating admissions - a dangerous police practice that has produced disastrous results, again and again.
Niess swallowed these flimsy excuses hook, line and sinker. That's unfortunate, especially because he's an undeniably good judge and an honorable man. But on another level, I'm grateful for his ruling.
Why? Because I would prefer, personally, to be among the diminishing majority of people who have not heard this call. I don't want to listen to Brittany Zimmermann's screams, her cries for help, the sounds of a struggle as her killer closes in. I don't want her family to have to hear it played on the radio and TV news, or by Nancy Grace, Geraldo Rivera and Greta Van Susteren.
The sad truth, however, is that such airings are inevitable. As Niess himself noted, the issue is not if the recording will be released, but when.
And when the inevitable does happen, no useful purpose will be served.
Last weekend, the Wisconsin State Journal urged in an editorial that the recording be released to "help ensure that the same mistakes at the 911 Center don't happen again." I disagree: I think the public already has enough information to know it probably will.
The continued temporary suppression of this recording is, on balance, a minor loss for both the media litigants and the public interest. Most of the other documents the authorities tried to suppress were through this action dragged into the light of day, the asserted danger of disclosure exposed as fraudulent.
Moreover, Judge Niess in his ruling provided all the public really needs to know about what is on Zimmermann's 911 call. He said it provided no clue as to why the dispatcher did not send help. Nor did it contain anything to suggest equipment failure.
Thus, the judge made it clear that those who have claimed the call was indistinct or there was some technical reason its content was not heard are lying. And until Judge Niess, none of the dozens of public servants who have listened to this recording had the decency to tell us.
That's a sad enough thing to have to hear. Spare us the recording.