Michelle Troconis tells CT Supreme Court she’s being wrongly denied secret court records

Michelle Troconis’ lawyer tried to persuade the state Supreme Court Wednesday that he has been wrongly denied access to records of a divorce case in which a judge improperly barred the public from a potentially explosive hearing and sealed the transcript from public view.

Troconis attorney Jon L. Schoenhorn has been trying for years to obtain the transcript of a May 2019 custody hearing in the divorce of Jennifer and Fotis Dulos, a bitter breakup that ended not long after in one of the country’s most notorious slayings and suicides.

Jennifer Dulos disappeared and is believed by the police to have been killed by her husband just days after the hearing, which was to determine who had custody of the couple’s children. Her body has not been found. Fotis Dulos later was arrested and charged with her murder, but died by suicide before he could be tried.

Troconis, Fotis Dulos’ girlfriend while the divorce was pending, is accused of conspiring with him to commit murder and obstruction of justice for, among other things, accompanying Dulos while he stuffed bags of bloody evidence into storm drains and garbage cans in Hartford.

Schoenhorn said he wants access to the hearing transcript to determine whether it contains anything that could support Troconis’ claim of innocence. She has been free on a $2.1 million bond since her arrest in January 2020.

Schoenhorn will not say whether there is anything in particular he hopes to find. And he told the Supreme Court Wednesday he is not trying unseal the divorce record as Troconis’ lawyer, but on his own as a “member of the public” who has been aggrieved by the judiciary’s refusal to provide him with a court record that he said has been sealed by an “illegal,”  “unconstitutional,” “secret” and, as a result, invalid, court order.

It is not unusual for proceedings and records in divorce and custody cases to be kept secret in order to protect the privacy rights of litigants from disclosure of materials such as deeply personal medical and psychiatric reports. But the case before the court turns on questions about how records were sealed.

Both Schoenhorn and the state Attorney General’s office, which is defending the judiciary’s refusal to release the records, agree that the Superior Court judge who presided over the custody hearing wrongly barred the public from the courtroom and illegally sealed the transcript. In order to close a court to the public and seal the record, Connecticut law requires judges to follow a detailed procedure that includes giving the public two weeks to contest the order — steps that were intentionally ignored in the custody hearing.

The disagreement is over how Schoenhorn decided to pursue the records. He asked another judge to unseal the transcript and provide him with a copy on the grounds that it had been sealed illegally in the first place. He is asking the Supreme Court to reverse two lower courts that denied him the record, agreeing with the Attorney General that if judges are allowed to arbitrarily reverse one another it would lead to a flurry of what Chief Justice Richard A. Robinson called “judge shopping” and chaos in the court system.

The hearing in question was convened to take testimony from Dr. Richard Herman, a child psychologist perhaps best known for taking the position, in another notorious custody case, that the experts at Yale New Haven Hospital were wrong 30 years ago when they decided comedian Woody Allen had not molested his then-7-year old daughter.

Schoenhorn started looking for a record of the hearing in 2021. The case had been dismissed a year earlier because the parties were declared dead or presumed to be. He was told he couldn’t have a transcript because the file had been sealed. When he couldn’t find a court order sealing the case — he later learned that, too, had been made secret — he filed suit in an attempt to force the judiciary to turn it over. He lost in the Superior Court and the Supreme Court decided to take the appeal directly.

The Attorney General’s office had better luck. According to court filings, it notified Schoenhorn that there had been a court order sealing the case and the order had been filed in public. Schoenhorn was told the reason he couldn’t find the order was because it had been inadvertently made secret by a clerical error. The Attorney General’s office also disclosed that not all of the hearing transcript had been sealed — just the part Schoenhorn wanted.

“It has come to our attention that there was a clerical error that led to the entire May 14, 2019, transcript being marked as sealed,” an explanatory email from the Attorney General’s office said. “Only Dr. Herman’s testimony was sealed. The remainder of the May 14, 2019, transcript, including the court’s order sealing the courtroom, was not subject to the sealing order. The clerical issue has been resolved. Please find attached the transcript of the portion of the May 14, 2019, hearing that is not subject to the sealing order.”

Schoenhorn complained to the justices Wednesday that he has never been told how the Attorney General’s office was able to access supposedly secret records that had been denied him.

“How the Attorney General’s office got that excerpt has never been explained,” he said. “How they went through the transcript to get that portion that I was eventually given has never been explained.”

The justices in their questions sounded skeptical at times of Schoenhorn’s arguments, suggesting he could have pursued other means of obtaining the hearing record, such as claiming in criminal court that it may contain material pointing to Troconis’ innocence.

There were references throughout the arguments of examples of secret record abuses in state courts, including a controversial past practice — since reversed — under which courts agreed to make secret the divorce cases of rich and influential litigants.