A Long Island politician charged with tax evasion cannot prevent media outlets from running photographs of him in handcuffs, a federal judge decided on Friday.
Ruling from the bench, Eastern District Judge Arthur D. Spatt in Central Islip denied a motion by Nassau County Democratic legislator Roger Corbin to enjoin Newsday and cable channel News 12 from running pictures of him taken during a “perp walk” following his May 6 arrest.
Judge Spatt said he was “troubled by [the] repeated use” of Mr. Corbin’s photograph with his hands handcuffed behind his back, when there were “numerous photographs” of him available from his 14 years as a lawmaker. But the judge said he lacked the authority to “censor the press in this matter and cannot instruct the press as to what images are newsworthy.”
In court documents, Newsday and News 12 had argued that the defendant’s requests “plainly violate the First Amendment and should be promptly rejected.”
Read Mr. Corbin’s filing , the media’s filing in opposition , a supplemental filing and the declaration of Mr. Schulz .
Mr. Corbin failed to show that the nature and extent of media coverage would impair his right to a fair trial, except for “speculation on the part of his counsel,” argued attorney David A. Schulz, representing both media outlets. A change of venue or voir dire of prospective jurors would sufficiently weed out any potentially prejudiced jury members without invading free speech, wrote Mr. Schulz, of Levine Sullivan Koch & Schulz.
Mr. Schulz added that an injunction against only Newsday and News 12 would not filter out the many other media sources available to potential jurors, while a “truly effective injunction would need to be breathtaking in its scope, a fact that weighs against restraint, rather than in its favor.”
And he argued that court precedent had permitted the recording of “perp walks” by the media. For example, the U.S. Court of Appeals for the Second Circuit, in Caldarola v. County of Westchester, 343 F. 3d 319 (2003), rejected a claim that the distribution of a videotaped perp walk violated a defendant’s Fourth Amendment rights.
The photo at issue: Roger Corbin is led out of the Internal Revenue Service building in Garden City on May 6 after his arrest on tax evasion charges.
Photo by Newsday/James Carbone
“[P]erp walks . . . serve the more serious purpose of educating the public about law enforcement efforts,” the court observed, adding that the “image of the accused being led away to contend with the justice system powerfully communicates government efforts to thwart the criminal element, and it may deter others from attempting similar crimes.”
Mr. Corbin, 62, a member of the Nassau County Legislature since its inception in 1995, was arrested on charges of filing false tax returns and making false statements in connection with a federally funded $60 million development in New Cassel.
According to the government’s complaint, Mr. Corbin received $226,000 from a developer and spent some of the money on personal expenses without declaring it as income.
In a Nov. 20, 2008, interview, Mr. Corbin allegedly told federal agents that he had given the money to a person who was to pay construction workers at the New Cassel site. That person, unnamed in the complaint, had actually died in 2005.
Mr. Corbin allegedly said he is a “law maker, not a law breaker” and acknowledged that he would have to pay taxes on money that “benefited me” but claimed that he did not “benefit one iota” from the money he received. He has pleaded not guilty.
The arrest came just weeks after Mr. Corbin sued Nassau County over its tax assessment practices and according to his attorney, Thomas F. Liotti, was racially motivated.
“It is clear that this defendant is being selectively and vindictively prosecuted because he is an African American and an elected official,” Mr. Liotti wrote in court papers.
He pointed to Treasury Secretary Timothy Geithner, who owed $40,000 in back taxes and Health and Human Services Secretary Kathleen Sebelius, who owed $8,000 in back taxes, as examples of government officials in “similar circumstances . . . who [were] not only not . . . prosecuted but have been confirmed for their positions.”
All sides declined to make further argument at Friday’s hearing, relying on their motion papers.
Citing the 1976 case of Nebraska Press Association v. Stuart, 427 US 539, in which the U.S. Supreme Court refused to approve prohibiting the press from publishing certain news about the murder of six people in a 850-person town, Judge Spatt noted that the Eastern District’s jury pool of 7 million is much larger.
Further, he said, the average time between an arrest and trial is nearly 20 months, giving any pretrial publicity time to die down. And, the judge noted, “much of the press and publicity in this case was generated by defendant and his counsel.”
Mr. Liotti also asked the judge to enjoin the government from staging any additional perp walks.
In court documents, Assistant U.S. Attorneys John J. Durham and Richard P. Donoghue argued that a perp walk is standard protocol in which agents escort a suspect to and from an arraignment, and is permissible under applicable Second Circuit case law.
In any case, as Mr. Corbin had already been arrested, processed and released, the issue was moot, the government claimed, as “unless he fails to appear for future court appearances . . . or commits further crimes, an additional arrest of this defendant will not occur.”
The government took no position on the defendant’s claims against the media.
While Judge Spatt also declined to prevent the government from staging further “perp walks” he took issue with statements in a news release regarding Mr. Corbin issued by the FBI and the office of U.S. Attorney for the Eastern District, Benton J. Campbell.
In the May 6 release, Mr. Campbell and FBI Assistant Director Joseph M. Demarest were quoted regarding Mr. Corbin’s actions. Mr. Campbell said, “The defendant violated the law by failing to file truthful federal tax returns – an obligation of all taxpayers, including elected public officials. He then compounded his crime by lying to federal agents to cover his tracks . . . The defendant will now be held to account.”
Mr. Demarest was quoted as saying, “The people rightly expect their elected representatives at all levels of government to behave honorably, or at a minimum, lawfully. This defendant put self-interest above public service. Public confidence in government depends on accountability for misconduct.”
Both statements “may violate” disciplinary rules barring attorneys from commenting on the substantive merits of a case, including the defendant’s guilt, “by offering opinions,” Judge Spatt said, although he noted that it is “not my obligation to determine this matter.”
A spokesman for Mr. Campbell declined to comment.
Mr. Schulz declined to comment after the hearing. Mr. Liotti made an application to appeal immediately after the ruling. Briefs on whether the ruling can be appealed are due this Friday.