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A Sullivan County, N.Y., judge Monday granted a newspaper’s request to use still photography during some pretrial hearings and throughout the trial in a capital murder case, despite a statute specifically barring cameras from the courtroom. Judge Frank J. LaBuda is the latest in an increasing number of judges who have found, either explicitly or implicitly, that Section 52 of the Civil Rights Law can no longer be reconciled with the free speech clauses of either the First Amendment to the U.S. Constitution or Article 1 Section 8 of the New York State Constitution. Cameras and recording devices have been banned from New York’s courtrooms since 1952, except for a lapse between 1987 and 1997, when the Legislature authorized various camera-in-the-courts experiments. Last year, New York Supreme Court Justice Joseph C. Teresi of Albany wrote the first opinion striking down Section 1952 in the case of four New York City police officers charged criminally with the shooting death of Amadou Diallo. That opinion was never appealed, so there emerged no appellate authority. Since then, several judges have granted media requests to bring their cameras or recorders into the courtroom, while others have denied requests. One ruling by a judge in Rochester, N.Y., was overturned on procedural grounds by the Appellate Division, 4th Department. But the issue still has not been directly addressed by any New York Appellate Division or New York’s Court of Appeals. In his decision Monday in People v. Anthony Schroedel, Indictment 115-99, Judge LaBuda said that lacking an appellate ruling, trial judges are left to their own discretion. And in his opinion, he said it is “time to allow cameras in the courtroom given the advancements in technology and the ever-changing ways society gets its news.” Monday’s decision stems from an application filed by the most widely read newspaper in Sullivan County, the Middletown Times-Herald Record. The newspaper sought an order allowing still photography during all proceedings involving Anthony Schroedel. Schroedel is charged with first-degree murder and other counts in a case where Sullivan County District Attorney Stephen F. Lungen has filed death notice. The Capital Defender Office opposed the newspaper’s application for access to pretrial hearings without specifically addressing the cameras-in-the-courts issue. Lungen supported the defense position. LaBuda refused to close the courtroom for the duration of all pretrial hearings. “Historically, for over 200 years criminal trials have been open to the public and it strains credibility to suggest that our Founding Fathers intended anything but open trials,” LaBuda wrote. “Criminal proceedings behind closed doors are anathema to basic concepts of justice in America.” LaBuda said open proceedings are particularly important in a capital case, and he found that the “public has an overwhelming interest in this matter in keeping all proceedings open.” He declined to close a suppression hearing under People v. Huntley, 15 NY2d 72, (1965), or a hearing on physical evidence under Mapp v. Ohio, 367 US 643, (1961). However, he did close hearings under People v. Sandoval, 34 NY2d 371 (1974) on the defendant’s prior record; People v. Ventimiglia, 52 NY2d 350 (1981) on uncharged bad acts; and People v. Molineaux, 168 NY 264 (1901) on prior uncharged crimes. On the issue of cameras, LaBuda addressed only still photography, since there was no application to use videography. “The question is, has the 21st century come to recognize a presumptive constitutional right to allow a 19th century technology, i.e., cameras in the courtroom? It has been said that the media’s First Amendment rights do not include cameras in the courtroom of a criminal trial, but doesn’t the public have a right to see what goes on in the courtroom?” the judge asked. LaBuda did not specifically answer either of the questions he posed, but he did say that the 1987-1997 series of experiments showed that the time has come to bring cameras into the courtroom and that New York should join the 48 states allowing cameras. CHIEF JUDGE’S RULE 131 Under LaBuda’s order, Chief Judge’s Rule 131, promulgated in response to the cameras-in-the-court experiment, will govern procedures in the Schroedel case. He said the rule provides “ample safeguards for the court to employ to allow the dignity of the proceedings and an orderly judicial process.” Lungen said Monday that he supported the defense request to close the courtroom for pretrial hearings out of concern that disclosure would make it difficult to seat a jury in his small county. “If I have a preference as a prosecutor, my preference would be to allow us to close it so we can make jury selection that much easier,” Lungen said. “As a practical matter, I recognize that the law does not approve of closing the courtroom.” Lungen said his only concern about cameras is ensuring that he has input into which witnesses are photographed. “I don’t believe that a witness who does not want to be photographed, or a child witness, which I have in this case, or a victim should be permitted to be photographed,” Lungen said. “I am not someone who favors cameras in courtrooms because I have seen too many cases where people play to it. But if it needs to be done, we need to do it with some form of restriction.” Other than to follow the guidelines under Rule 131, LaBuda has not made clear precisely what restrictions will be imposed on the Times-Herald Record. First Deputy Capital Defender Mark B. Harris said he is unsure whether his office will appeal, although he admitted that the law regarding cameras in the courts is “in a state of flux right now” with different judges making different determinations. “Apparently, everyone thought the Legislature was going to do something, and obviously they haven’t,” Harris said. “We are researching our position on whether or not we will appeal.” Later this month, the New York State Bar Association is slated to consider endorsing a legislative proposal that would authorize audio-visual coverage of trials. The proposed legislation would not afford attorneys a veto right over whether or not audio-visual coverage was allowed, but it would require media to film an entire proceeding from gavel-to-gavel. Defending Schroedel are Barry J. Fisher and Matthew Alpern of the Capital Defender Office.

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