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A judge in Buffalo has held that New York’s 50-year ban on cameras in the trial courtroom is apparently constitutional, but that the statute does not apply to still photography. Erie County Judge Michael L. D’Amico’s ruling late last week opens the courtroom doors to photographers planning to memorialize the upcoming trial of James C. Kopp, the alleged sniper accused of gunning down a Buffalo-area abortion provider in 1998. D’Amico, sitting as an acting Supreme Court justice, held that � 52 of the Civil Rights Law is presumed constitutional and that the Legislature may bar cameras from the courtroom without violating either the First Amendment or New York’s equivalent of the free speech amendment, Article 1 � 8 of the state constitution. However, D’Amico observed that the statute, enacted in 1952, makes no mention of still photography, and therefore judges have discretion to open their courtrooms for photographic coverage. The judge said he will exercise that discretion in the Kopp case. The ruling is the latest in a slew of statewide decisions addressing the issue of whether judges can or must allow cameras and recording equipment in the trial courts. Trial judges in Monroe, Nassau, Erie and Sullivan counties have declared � 52 unconstitutional, while judges in Westchester, Albany and now Buffalo have found it constitutional. To date, no appellate court has addressed the issue of constitutionality. D’Amico’s ruling takes a somewhat different approach, and follows a similar finding by Rensselaer County Judge Patrick J. McGrath in holding that there is no current statutory prohibition on still photographic coverage of the trial courts. Civil Rights Law � 52 was enacted after the “Roman Holiday” that ensued when photographers with huge and intrusive equipment converged on the trial of Bruno Richard Hauptmann, the man ultimately executed for kidnapping and killing the child of famed aviator Charles Lindbergh. During the Hauptmann trial, photographers roamed freely about the courtroom, jostling for the best positions and climbing over the counsel’s table for close-up shots. Virtually every state responded with legislation banning or severely limiting cameras in the courtroom. New York’s response was � 52, and while the legislative commentary strongly suggests lawmakers intended to keep all cameras out of the trial courts, the statute expressly refers to only “televising, broadcasting or taking motion pictures.” With no mention of still photography in the statute, Judge D’Amico held that there is nothing to prevent a court from allowing still cameras into the courtroom. D’Amico said he will consult with counsel to fashion appropriate rules and restrictions. AN ARRAY OF RESPONSES The Kopp case is a particularly newsworthy matter that has attracted international attention and avid media interest. Kopp, a militant opponent of abortion accused of gunning down Dr. Barnett A. Slepian in October 1998, was captured in France after a transatlantic manhunt. His state court trial is slated to begin Feb. 24. The Buffalo News, Gannett Broadcasting and Lin Television Corp. sought permission to photograph and/or tape the trial, triggering an odd array of responses: The Erie County district attorney, who is prosecuting the state case, supported the applications; the U.S. Attorney opposed the applications on the grounds that photographic coverage of the state-court proceeding could interfere with a pending federal action; counsel for Kopp supported the application for electronic media access, but opposed still photography; and the state attorney general argued that there is no constitutional right to televise or tape trial proceedings, but took no position on whether � 52 applies to still photography. Although � 52 has been in place since 1952, it was essentially suspended between 1987 and 1997 when the Legislature authorized a series of cameras-in-the-courts experiments. Those experiments resulted in four reports, each recommending that lawmakers lift the � 52 ban. Regardless, the Legislature allowed the last experimental period to sunset, meaning that the restrictions of � 52 were effectively reinstated. COURT OF APPEALS Judge D’Amico said the constitutionality of � 52 is an issue that ought to be decided by the New York Court of Appeals. However, he declined to find it unconstitutional and noted that “no appellate court anywhere, so far as this court can determine, has ever made a determination that it is unconstitutional to prohibit the use of cameras in court.” He also rejected media arguments that whatever justification there was for the ban in 1952 is irrelevant in light of modern technology that makes cameras far less intrusive than they were during the Truman administration. The Legislature, D’Amico observed, had to have been aware of those arguments when it allowed the experiment to lapse. “In spite of all of the arguments favoring cameras, the Legislature chose not to make permanent the use of cameras in the courtroom or even to extend the experiment in order to study this issue further,” D’Amico said. “It is clear, to this court at least, that the Legislature intended, and apparently still intends, to ban cameras in our courts. This court, for whatever its [sic] worth, concludes that cameras can be permitted within our constitutional framework but also that any ban on the use of cameras in the courtroom is not unconstitutional.” After finding that � 52 does not apply to still photography, Judge D’Amico turned to Kopp’s opposition. Kopp contended that the click of the camera at certain points would inevitably emphasize certain witnesses or testimony. D’Amico rejected that argument. “It is naive to presume that jurors, not sequestered during a trial, would firstly, be unable to discern for themselves what testimony is important and, secondly, be aware of news coverage in general of a high-profile criminal case on which they serve as jurors,” D’Amico wrote. Appearing were Joseph M. Finnerty and Karim A. Abdulla of Stenger & Finnerty in Buffalo for The Buffalo News; Assistant Attorney General Barbra A. Kavanaugh for the state; Bruce Anthony Barket of Garden City, N.J., and John V. Elmore of Buffalo for the defendant; Assistant Erie County District Attorney John J. Marusak for the prosecution; Assistant U.S. Attorney Kathleen Mehltretter for the federal government; 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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