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A judge presiding over a capital murder case has declared unconstitutional New York’s ban on audio-visual coverage of trial proceedings and granted a television station’s motion to collect and eventually air “sound bites” of the Anthony Schroedel matter in Monticello, N.Y. Sullivan County, New York Judge Frank J. LaBuda said on Friday that the state’s Civil Rights Law �52, which has prohibited the use of audio-visual equipment in the courtroom since 1952, cannot withstand modern day constitutional scrutiny. LaBuda suggested, in People v. Schroedel, Indictment 115-99, that the notion of excluding cameras makes no more sense today than banning stenographic machines in favor of handwritten transcription. “The citizens of Sullivan County have a right to know under what circumstances a person may or may not receive the death penalty. Openness of the judiciary should always be favored when the knowledge of society can be enlarged and the rights of all safeguarded.” The order signed Friday authorizes WRNN Television, a cable television company in Kingston, to record the soon-to-commence capital murder trial. Judge LaBuda said he would apply the conditions and standards of Part 131 of the Rules of the Chief Judge, which were promulgated in response to a 10-year experiment during which cameras and audio equipment were allowed in the trial courts. The legislation authorizing that experiment sunset in 1997. First Deputy Capital Defender Mark B. Harris, whose office is representing Schroedel, said Friday that he was reviewing the decision. He suggested, however, that he is inclined to challenge LaBuda’s ruling. If the ruling is appealed, it could lead to the first appellate review of the constitutionality of �52. Although other judges have in the past year or so allowed cameras in the courtroom, their decisions either were not appealed or resulted in procedural rulings on appeal that did not address the core issue of constitutionality. Schroedel is charged with two counts of first-degree murder and several other felonies in connection with the June 21, 1999, stabbing death of Barbara Vogt in her Eldred, Sullivan County home. If convicted of first-degree murder, Schroedel faces a possible sentence of death by lethal injection. Last month, Judge LaBuda granted a motion by a local newspaper, The Middletown Times-Herald Record, to use still photography throughout the trial and during some pretrial proceedings. After the Capital Defender prepared an Article 78 petition, the newspaper agreed that it would not photograph the pretrial hearings. The petition was withdrawn. Since then, WRNN moved to bring its television cameras into the courtroom. On Friday, LaBuda granted that request, subject to the restrictions articulated under Part 131 of the Rules of the Chief Judge. In opposition, defense counsel cited three decisions: Santiago v. Bristol, 273 AD2d 813 (2000), where the Appellate Division, Fourth Department, overturned procedurally a Monroe County judge’s order granting an application for cameras in the courtroom; Clear Channels Communications v. Rosen, 263 AD2d 663, where the Third Department in 1999 denied on procedural grounds a television station’s challenge to an order denying it audio-visual access to a trial; and Mountain View Coach Lines v. Storms, 102 AD2d 663 (1984), where the Second Department held that any Appellate Division decision in the state binds a trial court until and unless the Court of Appeals or the Appellate Division in which the trial court resides rules to the contrary. Judge LaBuda found the defense arguments “unpersuasive and, in part, misleading,” and referred to a ruling early last year in Albany by Supreme Court Justice Joseph C. Teresi. Justice Teresi declared �52 unconstitutional and allowed audio-visual coverage of the so-called “Diallo case,” in which four New York City police officers were charged with killing an unarmed immigrant. Teresi’s decision in People v. Boss, 182 Misc2d 700, was not appealed. LaBuda’s may well go up. “We will certainly be giving serious thought to doing something about this,” Harris said Friday. STATE BAR DEBATE Coincidentally, LaBuda’s ruling came a day before the New York State Bar Association was scheduled to debate the issue of cameras in the courts. The State Bar has not taken a position on the constitutionality of �52. It also comes at a time when state lawmakers who are interested in the topic are eagerly awaiting a nudge from the judiciary that forces the Legislature to take action. Friday’s decision, if it is appealed and ultimately decided on the merits, could provide that nudge, according to Assemblyman Mark Weprin, a Queens Democrat who has championed cameras-in-the-courts for several years. “I knew that this was coming sooner or later,” Weprin, elated, said on Friday. “Judge LaBuda is obviously someone of courage who is tired of seeing the rights of people to see their courts in action being trampled upon. This could bring it to a head, one way or the other. This is exciting news.” LaBuda, consistent with the Third Department’s ruling in the Clear Channels case, converted the application to a motion for a declaratory judgment. He found neither the Fourth Department’s procedural ruling in Santiago v. Bristol nor the Second Department’s decision in Mountain View Coach Lines applicable. “Judges are the servants of the people and, as such, there is a duty back to the public and its citizenry to keep courts open and only to close them in very limited and special circumstances,” LaBuda wrote. “However, when there is a death penalty case present, the balance strongly tilts in the direction of opening the courts to cameras unless an overwhelming need is present. In the present matter before me, there is no such need negating the public’s right to know and to see what is transpiring.” LaBuda also observed that the death penalty legislation was enacted in 1995, while the cameras-in-the-courtroom experiment was under way. He said the legislation in no way limited access and, in fact, contemplated cameras simply by not mentioning audio-visual coverage at a time when it was allowed. “An enlightened society is and shall always be the backbone of a free democracy,” LaBuda said. “Since death is the ultimate punishment one can receive under our penal law, the citizenry has a clearly defined right to be informed.” WRNN has indicated that it intends to collect “sound bites” during the trial and to use live coverage the day of the verdict. Tina Kraus of Kingston appeared for WRNN. Sullivan County District Attorney Stephen F. Lungen is prosecuting the case. Defending Schroedel are Barry J. Fisher and Matthew Alpern of the Capital Defender Office in Albany.

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