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

Grygiel, Michael J., Albany Law Review

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. "B" to Grygiel aff.)(18)--Civil Rights Law [sections] 52's imposition of an absolute, generalized ban on RNN's audio-visual coverage exceeds legislative authority and violates its rights to free speech and equal protection under the New York State Constitution.

The trial of New York City Police Department ("NYPD") officers Boss, Carroll, McMellon and Murphy on second degree murder charges based on their tragic shooting of Mr. Diallo will be conducted in a Bronx County courtroom with a restricted number of public seats. The press seats will be limited to less than that. For the millions of greater New York metropolitan area residents who are unable physically (or financially) to attend, there is only one opportunity to observe the events first-hand. Without a determination from this Court that [sections] 52 violates RNN's state constitutional rights to provide "gavel-to-gavel" audio-visual coverage of the trial, that singular opportunity will be irretrievably lost. This is a novel question; apart from a March 3, 1999 Decision and Order of Albany County Court(19) which is not binding on this Court, no reported case has addressed this issue in New York State.

A prosecution of police officers carries by its nature a fundamentally public aspect: stated bluntly, in this case those entrusted with upholding and enforcing the law have been charged with violating it, with fatal consequences. The details of this trial will present information crucial to continuing public judgments about grave (indeed, homicidal) charges of police brutality--judgments that all citizens of the Bronx must make for themselves. The public is entitled to know about, debate--and ultimately judge--the decisions and judgments by defense counsel, the Bronx County District Attorney, and the Court in this regard. To engage in the sort of informed participation in governance contemplated by the public's constitutional right of access, it is not enough for the public merely to learn, through second-hand, subjective, after-the-fact interpretations, what took place in the courtroom; rather, the public must have direct and unmediated access to the proceedings that provide the bases for the decisions and judgments of the trial participants.

The unique properties of modern technology and ten years' experience with cameras in New York State courts confirm beyond reasonable dispute the ability of audio-visual coverage to transmit unobtrusively and preserve forever the events of this momentous trial. Critically, "[n]o criminal conviction in New York has ever been reversed or set aside on the ground that audio-visual coverage interfered with the defendant's right to a fair trial." (See Ex. "J" to Grygiel aff. at 99) Moreover, there is no "evidence that the presence of cameras in New York cases has actually interfered in a particular case with the fair administration of justice." (Ex. "L" to Grygiel aff. at 84) Yet, despite the technological capability to reach the broadcast audience, the public's pervasive interest in hearing the parties' evidence, and the unequivocal conclusion of two committees appointed by the State Legislature that controlled camera coverage belongs permanently in New York's courtrooms, Civil Rights Law [sections] 52 excludes such coverage, relegating New York State's citizens (and history) to second-hand reports of an adversarial test of critically important legal, political, and social issues.

We do not mean to suggest by these arguments that the judiciary lacks authority to adopt general rules of conduct concerning media coverage of trials or to require their observance in ordinary circumstances. This case presents, however, extraordinary circumstances: the use of [sections] 52 in a particular case to impose a per se exclusion, without regard for its substantive curtailment of state constitutional rights, the availability of less restrictive means, or the absence of factors which would validate the rule as a reasonable control of courtroom decorum.

As set forth above, this is a criminal case of exceptional importance and national interest. Transcending its legal issues and the inherently public features of its verdict, the details of its trial evidence hold the substance of issues critical to a democratic society--whether the barrage of police gunfire that killed Mr. Diallo was a tragic mistake or a lethal Schwarzenegger moment, and the public accountability of the police when criminal charges of excessive force have been raised against members of the force. Indeed, it is no exaggeration to say that this trial may (regrettably) be New York City's equivalent of the infamous Rodney King case (with semiautomatic pistols substituted for billy clubs). Under these circumstances, RNN respectfully submits that Civil Rights Law [sections] 52 should not--and, indeed, cannot--bar television cameras from the trial proceedings in this case. Authorizing audio-visual coverage can only vindicate Justice Holmes's ancient (but prescient) admonition:

   It is desirable that the trial of causes should take place under the public
   eye ... that every citizen should be able to satisfy himself with his own
   eyes as to the mode in which a public duty is performed.

   Cowley v. Pulsifer, 137 Mass. 392, 394 (1884).

STATEMENT OF FACTS

A. Regional News Network and the Elements of Its Application

As a 24-hour television news network, RNN's philosophy is to cover all news events as they happen--thoroughly, continuously and in depth.(20) The network's journalistic mission is to broadcast to its viewers, in conformity with fair journalistic standards, the newsworthy information which it gathers. Consistent with this goal, RNN often covers local and regional criminal proceedings, including trials, which have independent news value or have otherwise become a reasonable subject of public concern. The People v. Kenneth Boss, et al. prosecution has been the subject of numerous RNN broadcasts concerning the underlying events and various pre-trial phases of the case (See Ex. "D" to Grygiel aff.), including the March 25, 1999 indictment and March 31, 1999 arraignment of the defendants. (French aff., [paragraph] "3")

The purpose of RNN's proposed in-court coverage of the trial in this case is to enable its viewers to observe the operation--and thereby broaden their understanding--of the criminal justice system and the judicial process. RNN's audio-visual coverage will assist viewers in the greater New York metropolitan area in understanding the basic procedural reasons for certain in-court events, explain the range of reasons for particular substantive events, and help place the trial proceedings in their correct context. By doing so, RNN will enhance the public's understanding of (and perhaps appreciation for) the evidence supporting any verdict rendered in the case. (French aff., [paragraph] "4")

B. Regional News Network's Coverage Methods and Guidelines

The technical elements of RNN's application and the provisions of its Coverage Guidelines were drawn from the findings and conclusions of the ten-year period in which audio-visual coverage was permitted in New York State courts, and from the most advanced technology. RNN will rely on three small, fixed location cameras and one camera operator in a specified location in the courtroom. The cameras will require no additional lighting other than existing courtroom lighting. A sound technician may be necessary to assure that no bench conferences or other confidential conversations are monitored. The television equipment will be noiseless, and will emit no light of any kind. The technicians will be stationary, and dressed like respectful court personnel and observers. They will not change or move equipment while the court is in session. All coverage will be pooled through the courtroom cameras, and all participating media must agree to comply with the regulating guidelines. (French aff., [paragraph] "5"; Ex. "C" to Grygiel aff.)

RNN provides the trial court with maximum control over the manner in which a proceeding is transmitted. The presiding judge may be provided with an audio "kill switch" which enables the court, at its sole discretion, to stop all audio coverage at appropriate moments. (French aff., [paragraph] "6")

C. The Current State of Empirical Evidence and Evaluation

Over the last thirty years, cameras have become a fixture in the courtrooms of 47 states. (French aff., [paragraph] "27"; Grygiel aff., Ex. "L" at 19) During that period, numerous studies have been conducted by those jurisdictions to evaluate the effect on the judicial process of the presence of cameras in courtrooms. The results have been consistent and unambiguous: televised coverage of trial court proceedings involving witnesses and jurors, both at the pretrial and trial stage--does not impede the fair administration of justice, does not compromise the dignity of the court, and does not impair the orderly conduct of proceedings. Indeed, just the opposite is true: public education about the judicial process--and how it resolves disputes--has been greatly enhanced. (French aff., [paragraphs] "16-25")

D. The Mid-Century Ban on Cameras in Courtrooms and the Subsequent Rejection of That Ban

Things, of course, were not always that way. Several decades ago, in response to what one observer called "the Roman holiday" surrounding the 1935 trial of Bruno Richard Hauptman, convicted and executed for the kidnapping and murder of the 18-month-old son of Charles Lindbergh, nearly every state, as well as the federal criminal courts, enacted rules barring any in-court audio-visual coverage. (French aff., [paragraph] "12-14")

Barely more than a decade later, however, enormous changes had occurred. Advances in technology and the unassailable fact that television had become a primary source of the American public's information about the legal system convinced states to begin to experiment with cameras in the courtroom and to study their effects on the proceedings. Led by Florida, and with the subsequent imprimatur of the Supreme Court, see Chandler v. Florida, 449 U.S. 560 (1981), many states permitted television in their courtrooms--with proper procedural protections for all participants--first on an experimental basis and then on a permanent one. (French aff., [paragraphs] "15-17") The results of numerous state studies of these experiments, conducted as early as 1979 and as late as 1997, have been conclusive: a silent, unobtrusive in-court camera can provide the public with more and better information about and insight into the functioning of the courts without interfering with the fair administration of justice. A full list of the studies, and a detailed description of them, is set forth in the French affidavit at paragraphs 17 through 26. In this memorandum, we focus on three: those in New York State courts.

E. The Ten-Year History of Audio-Visual Coverage in New York State

New York State has an extensive history with in-court televised coverage of civil and criminal proceedings. Beginning on December 1, 1987, the State Legislature on four occasions authorized audiovisual coverage of judicial proceedings. Each of these experiments has been comprehensively studied upon order of the State Legislature. All such studies, which are reviewed in detail below, recommended that television coverage continue to be permitted. (French aff., [paragraph] "18")

1. The 1989 Report of the Chief Administrative Judge.

The categorical prohibition of audio-visual coverage of trial proceedings imposed by Civil Rights Law [sections] 52 was first abrogated by Chapter 113 of the Laws of 1987,(21) which authorized an 18-month period of audio-visual coverage of courtroom trials from December 1, 1987 through May 31, 1989. The Legislature authorized this coverage based on its findings that television broadcasting technology had improved so that audio-visual coverage could be provided without disrupting or interfering with court proceedings:

   The legislature now finds, however, that various improvements in the
   technology of photography and of the audio and video broadcast media, in
   addition to the development of procedural safeguards as provided for in
   various state programs, make it feasible to permit in this state, on an
   experimental basis, audio-visual coverage of court proceedings without
   disruptive effect. Experience in forty-three states suggest that such
   audio-visual coverage of judicial proceedings may take place, under
   continuing judicial scrutiny and supervision, without jeopardizing the
   judicial system. Individuals participating in televised judicial
   proceedings in these states have reported that coordinated, supervised
   audio-visual coverage has had no measurable adverse effect on the
   administration of justice, and in some cases has even contributed to an
   atmosphere of calm and dignity in the courtroom.

   (L. 1987, c.113, [sections] 1) (French aff., [paragraph] "19")

In March 1989, a Report of the Chief Administrative Judge to the New York State Legislature, the Governor and the Chief Judge on the Effect of Audio-Visual Coverage on the Conduct of Judicial Proceedings was issued evaluating the effects of the legislatively authorized experiment. The report (Ex. "I" to Grygiel aff.) was issued "as mandated by Chapter 113 of the Laws of 1987" following a "period of extensive analysis, consideration of the views of scores of participants, including judges, attorneys, witnesses, jurors, media representatives and others, receipt of the recommendation of a talented advisory committee, as well as a review of much of the actual content of the pertinent published and televised material." (Id. at 1) The March 1989 study found "that coverage was unobtrusive, that it did not create undesirable noise or visual distractions, and that it did not compromise the dignity of the proceedings." (Id. at 106) It further stated that "It]he best argument against a noisy courtroom is a quiet camera and a good judge. We have plenty of both." (Id.) The study determined that the audio-visual coverage authorized by Judiciary Law [sections] 218 and corresponding court rules "has been workable and would not be improved upon by repeal or modification." (Id. at 109-110)

In conclusion, the 1989 report recommended that "the experimental status end, and that audio-visual coverage of judicial proceedings, with the procedures and restrictions contained in Chapter 113 of the Laws of 1987, be allowed to continue as part of the consolidated laws." (Id. at 112) This recommendation was based on the finding that audio-visual coverage did not adversely affect court proceedings: "The information gathered during this `experiment' demonstrates that audio-visual coverage does not adversely affect judicial proceedings. The concerns expressed before the experiment have been satisfactorily answered by the actual experience with audio-visual coverage in the courts during the past fifteen months." (Id.)

2. The 1994 Report of the Committee on Audio-Visual Coverage of Court Proceedings.

The May 1994 study, Report of the Committee on Audio-Visual Coverage of Court Proceedings (see Grygiel aff., Ex. "J"), which "evaluate[d], analyze[d] and monitor[ed] audio-visual coverage of trial court judicial proceedings in New York State" (id. at 1), concluded that the benefits of the third experimental period had been "substantial" (id. at vi), and that earlier experiments had also been a "success" (id. at vii). (French aff., [paragraph] "22")

Further, the 1994 evaluation reported, among other things, the following: because "[r]elatively few people ever attend court proceedings ... [t]elevision coverage ... exposes greater numbers of citizens to our justice system" (Grygiel …

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Publication information: Article title: 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. Contributors: Grygiel, Michael J. - Author. Journal title: Albany Law Review. Volume: 63. Issue: 4 Publication date: Summer 2000. Page number: 1003. © 1999 Albany Law School. COPYRIGHT 2000 Gale Group.

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