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A battle over cameras in the courts in Western New York has taken on a peculiar dimension with a series of unusual and possibly pivotal motions pending before a judge in Buffalo. At stake, potentially, is not only whether there is either a presumptive right or a valid prohibition of cameras in the courts, but also whether the public has a state constitutional right of access at all. The case involves defendant James C. Kopp, a man about to go on trial for the October 1998 murder of Dr. Barnett A. Slepian, a Buffalo-area abortion provider who was shot and killed by a sniper. Kopp was arrested after a transatlantic manhunt and is facing charges in both state and federal court. The matter has attracted national attention, and a major Buffalo newspaper and two local television stations are eager to bring cameras into Erie County Judge Michael L. D’Amico’s courtroom when the trial begins Feb. 24. While well over a dozen New York judges have allowed cameras in their courtrooms in the last two years, the matter before Judge D’Amico is unlike any other. Among the unusual elements in the various motions pending before him are: � The Erie County district attorney is not opposing cameras, but the U.S. Attorney has moved to be heard as amicus curiae on the grounds that electronic coverage of the state trial will infect the pool of potential jurors and jeopardize witnesses for a federal trial that is at least six months off. � The attorney general is not defending the statutory validity of Civil Rights Law � 52, which specifically bars television cameras from trial courtrooms and may or may not prohibit still photography. Rather, the attorney general is relying on a 1954 New York Court of Appeals decision (308 NY 71) in maintaining that there is no state constitutional right to attend criminal trials, let alone photograph them. � The lead defense attorney has urged the court to allow a single television camera to record the entire trial. However, he opposes still photography and wants The Buffalo News to garner whatever images it wants from a television monitor in the hall. Policymakers and legal authorities have debated the benefits and drawbacks of cameras in the courts for decades, and a series of experiments in New York state between 1987 and 1997 did nothing to quell the debate. Over that decade, the Legislature allowed cameras and recording devices in trial courtrooms, regardless of Civil Rights Law � 52. Official reports on the experiments concluded that there was no evidence the presence of cameras and recording devices negatively affected the administration of justice or impacted defendants’ fair trial rights. But when the last experimental period sunset, the experiment was not renewed, and since then the media have waged a constitutional, statutory, procedural and lobbying effort to bring back the cameras. There were some near misses in court and some small victories for the media. When Albany County Supreme Court Justice Joseph C. Teresi allowed both still and video cameras into his courtroom for the Amadou Diallo matter, and went on to declare � 52 unconstitutional, the floodgates opened. Over the next two years, at least 16 New York courts rejected or sidestepped the constraints of � 52. But lacking direction from either the Legislature or the Court of Appeals, the rulings and the rules have been anything but uniform. Media lawyers and opponents of electronic coverage of the courts are eager to get a cameras case to Albany in hopes that an opinion from the Court of Appeals will at last bring a thread of consistency to what is now a fragmented patchwork of trial rulings. ABORTION DEBATE The latest case to challenge � 52 is particularly prominent, containing all the moral, religious and political galvanization of the abortion debate. Slepian, a well-known physician who performed abortions, was shot by a sniper in his suburban Buffalo home in October 1998. It took three years and an international investigation before Kopp, a militant opponent of abortion, was captured in France. Since then, Kopp generally admitted his culpability to The Buffalo News, and his prosecution is providing a platform for activists on both sides of the abortion debate. Some abortion foes view the upcoming trial as a referendum on Roe v. Wade, and are planning a rally later this month to focus on both the Kopp prosecution and the 30th anniversary of the U.S. Supreme Court ruling that legalized abortion. Abortion-rights activists are eager for a conviction to avenge the Slepian murder, a crime they say has led some providers to stop performing abortions. With the obvious public interest in the trial, The Buffalo News, Gannett Broadcasting and Lin Television Corp. want to bring their cameras into the courtroom. However, that goal requires some fancy legal footwork. In a ruling in 2000, the Appellate Division, 4th Department, in Santiago v. Bristol, 273 AD2d 813, held that a challenge to the constitutionality of � 52 can be commenced only through a declaratory judgment motion, which can be initiated only in supreme court. That is a logistical problem upstate, where many criminal matters are handled in county court. In the Kopp case, however, D’Amico is sitting as an acting supreme court justice, so the forum is appropriate for the type of motion that the Santiago court said is required. The attorneys for The Buffalo News, Joseph M. Finnerty and Karim A. Abdulla of Buffalo’s Stenger & Finnerty, have mounted a two-pronged attack. They contend that � 52 does not apply to still photography — a contention that is apparently going unopposed since the attorney general is taking no position on the statutory interpretation issue. Additionally, they are joined by counsel for the television stations in asking Judge D’Amico to recognize a constitutional right of access that is so broad that it encompasses audio-visual coverage of trial court proceedings. PUBLIC’S RIGHTS With no objection from either the prosecutor or defense, only New York Attorney General Eliot L. Spitzer — who has frequently said he approves of cameras in the courts as a policy matter but believes � 52 is valid law — stands in opposition. In a motion to dismiss, Assistant Attorney General Barbra A. Kavanaugh notes that � 52 is presumptively constitutional, but goes no further to defend the statute. Rather, she argues there is no federal or state constitutional right to videotape trial proceedings, and then takes another step in maintaining that under the state constitution “the press and public do not even have a constitutional right to attend court proceedings.” Kavanaugh relies on Matter of United Press Association v. Valente, 308 NY 71 (1954), where the Court of Appeals said the media have no independent right to insist that a criminal trial be open to the public. “As the Court of Appeals declined the invitation to explore the issue of whether the right of access to criminal proceedings has an independent basis in the state Constitution, there is no basis for inferring that the broadcast media have a right under the state Constitution to televise a criminal trial,” Kavanaugh contends. Finnerty, in his papers, dismisses Valente as “dead-letter law” that is both off-point and superseded by subsequent rulings. He argues that the Court of Appeals must ultimately deal with the cameras-in-the-courts issue, and a dismissal at this juncture will only serve to delay resolution of a question that is repeatedly confronting the trial courts. “The Court of Appeals should address this issue and it is entitled to have the substantive input of its lower courts, including this court and, eventually if necessary, the justices of the Appellate Division, who consider and opine on the matter on its way to Albany for final determination,” Finnerty said in his motion papers. Also involved in the case are: defense counsel Bruce Anthony Barket of Garden City, N.J., and John V. Elmore of Buffalo; Assistant District Attorney John J. Marusak; Mark A. Molloy of Nixon Peabody in Buffalo for Gannett Broadcasting; and Paul I. Perlman of Hodgson Russ in Buffalo for Lin Television.

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