Memorandum of Law of Regional News Network in Support of Its Motion for Limited Intervention and Application to Provide Audio-Visual Coverage of Trial Proceedings

Article excerpt

PROLOGUE

People v. Boss(1) arose from a March 25, 1999 Bronx County Grand Jury Indictment charging the defendants, New York Police Department (NYPD) officers Kenneth Boss, Sean Carroll, Edward McMellon and Richard Murphy, with two counts of second degree murder and one count of first degree reckless endangerment(2) based on the fatal shooting of West African immigrant Amadou Diallo, as he stood in the vestibule of his Bronx apartment building on Wheeler Avenue in the early morning hours of February 4, 1999.(3) The four officers, each members of the NYPD's aggressive Street Crimes Unit with five to seven years experience on the force, encountered the unarmed Diallo while searching for a rape suspect.(4) When Diallo failed to respond to the officers' commands and made gestures which the officers interpreted as threatening, the police proceeded to fire 41 shots, 19 of which struck Mr. Diallo and fatally wounded him.(5)

Contending that "It]he trial [of the officers] will presumably include testimony addressing, among other things, what prompted the ... officers to fire forty-one times at a victim who had no weapon, and whether the fusillade of shots was justifiable ..." and that, "[t]hese issues are of public dimension,"(6) RNN sought to persuade the trial court that, because N.Y. Civil Rights Law section 52(7) imposed a per se ban on audio-visual coverage of the trial in this case, it violated RNN's rights of "`liberty of speech [and] of the press' under article 1, section 8, and of `equal protection of the laws' under article 1, section 11, respectively, of the New York State Constitution."(8) Pursuant to those state constitutional rights, RNN also sought to provide audio-visual coverage of the trial.(9)

On June 4, 1999, Bronx County Supreme Court Judge Patricia A. Williams denied RNN's motion.(10) Following the transfer of the trial from Bronx County to Albany County,(11) Courtroom Television Network (Court TV) petitioned Supreme Court Justice Joseph C. Teresi for permission to televise the trial on the grounds that section 52 was unconstitutional. Noting the change in venue and that Court TV's challenge (unlike RNN's) was premised on both Federal and State Constitutional grounds,(12) Justice Teresi granted Court TV's motion and allowed Court TV to televise the trial.(13) Subsequently, a number of New York trial courts have followed Justice Teresi's lead and allowed audio-visual coverage of both trials and related proceedings.(14) The issue of section 52's continued force and constitutionality, however, has not been addressed by New York's appellate courts.(15) This Memorandum will contend that, as a matter of New York state constitutional law, section 52 is unconstitutional, "hopelessly anachronistic and [in need of] permanent shelving"(16) by the courts.(17)

PRELIMINARY STATEMENT

"A trial is a public event. What transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 (1947).

WRNN-TV Associates, Ltd., the owner of WRNN-TV/Regional News Network ("RNN"), respectfully submits this memorandum of law in support of the station's motion to intervene in the above-captioned criminal proceeding for the limited purposes of (a) seeking to persuade the Court that, to the extent N.Y. Civil Rights Law [sections] 52 prohibits audio-visual coverage of the trial in this case, it violates RNN's rights of "liberty of speech [and] of the press" under Article 1, Section 8, and of "equal protection of the laws" under Article 1, Section 11, respectively, of the New York State Constitution, and (b) requesting a determination that RNN is entitled, pursuant to those state constitutional rights, to provide audio-visual coverage of the trial in People of the State of New York v. Kenneth Boss, Sean Carroll, Edward McMellon, and Richard Murphy (Bronx County Grand Jury # 40894/99). Based on the authority cited below, RNN has standing to bring this motion and request a determination that, as applied in this case--a trial probing the veracity of what took place "[i]n the early morning hours of February 4, [1999] [when] 19 of 41 bullets fired at Amadou Diallo ripped into his body as he stood blameless, unarmed and defenseless in the vestibule of his building" (Ex. …