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BLOG: The moving target of denial
By Sean Carroll #OpenNYCourts
This blog is part of an ongoing effort by 13WHAM to convince New York judges and lawmakers to allow cameras inside the courtroom.
The moving target of denial
It is one thing to deny the public camera access to the people's courtroom. It is another thing when a judge denies access but doesn't really understand the legal grounds why she or he is denying access.
This is something that often surfaced in our first year of #OpenNYCourts and most recently a new judge to the bench offered me the perfect example of this moving target of denial.
Before I elaborate, please remember that these findings serve as further evidence that the New York State Legislature needs to act to provide judges, lawyers, and citizens a clear and understandable law that opens up this Third Branch of Government to citizens who should expect nothing less than transparency and accountability.
The Rowley Street Example
In January on Rowley Street in the City of Rochester police discovered the body of Matthew Straton, a man who was reported missing in October 2013. Dr. William Lewek owned the property where the body was found and currently faces criminal charges.
The mystery surrounding this case is of great community interest especially given the three-day-long crime scene held by police investigators. As a result, 13WHAM News and the Democrat & Chronicle made the appropriate applications to have a camera present during Dr. Lewek's arraignment.
Judge Melchor Castro handled the Rochester City Court arraignment and he exercised what I believe was the appropriate judicial discretion, not once but twice. Dr. Lewek was first arraigned without a lawyer and he denied 13WHAM's application for camera access because nobody was present to represent Dr. Lewek in that decision.
Days later Dr. Lewek was arraigned again, this time with a lawyer present, and Judge Castro granted the Democrat & Chronicle the still camera access to the arraignment as had been requested in an application similar to 13WHAM's.
A few weeks later Dr. Lewek was scheduled to be arraigned on a two-count indictment in front of newly elected Monroe County Court Judge Christopher Ciaccio. The same exact access that was granted in city court was denied by Judge Ciaccio. This time around Judge Ciaccio offered a moving target of explanations as to why he was denying access before finally saying that he would no longer listen to my questions or response to those arguments and told me (& a photographer from the Democrat & Chronicle) to leave his chambers.
Judge's Denial & Hearing
Upon requesting video and still camera access to Dr. Lewek's second arraignment Judge Ciaccio initially responded to 13WHAM News denying access and citing: Section 131.8, subdivision (j) of the New York Court Rules of the Chief Administrator. He put it in writing and even wrote that he would be happy to review any and all applications for camera access at future proceedings regarding this matter.
13WHAM News inquired further about the reason for this denial, we wanted a clarification about whether the judge was only denying video camera access or if he was denying still camera and video camera access. Judge Ciaccio scheduled a pre-trial conference in his chambers at 8:30 a.m. on the day of Dr. Lewek's arraignment presumably to hear all sides on this issue.
First Assistant District Attorney Kelly Wolford was present at the hearing and she did not oppose our application for court access. Democrat & Chronicle photographer Jamie Germano joined myself in Judge Ciaccio's chambers but Dr. Lewek and his attorney (Matthew Parrinello) did not bother showing up for this conference. In the end that did not matter because Judge Ciaccio had made up his mind before we walked in the door and argued admirably on behalf of Dr. Lewek...which, frankly, seemed rather odd given the circumstance.
The Moving Target of Denial
The judge's answer was no to camera access of all kinds and when I began to offer my arguments in response Section 131.8 subdivision (j) the reason Judge Ciaccio had stated for his denial in the letter he sent me I was cut off and told that instead he was denying access based on Civil Rights Law 52...a law that was crafted in 1952.
The reason for denial moves once.
I then began to offer my argument in response to Civil Rights Law 52, a law that does not even mention the word arraignment but was cutoff by Judge Ciaccio who said, I can't legally allow camera access because the defense objects.
The reason for denying access shifts again.
Having heard this argument before, I began to explain that the decision to allow camera access always rests with the discretion of the presiding judge and in this case a precedent had been set in that Judge Castro granted the exact same access, in the exact same case, just weeks prior. It is not as if we were asking the judge to do something he couldn't legally do. I began to point to other local cases where such access was granted even despite the objections of the defendant.
Judge Ciaccio did not wish to hear it and he shifted the target yet again.
He retrieved from his office an appellate ruling - Heckstall v. McGrath - and said that this case specifically prohibits him from allowing any sort of camera access to his court whenever a defendant objects to that access. (Writer's Note: later in the same day another judge used he same exact case to grant still camera access but deny video camera access in a different local case that we made applications for camera access in...I'll explain that in another blog.)
Judge Ciaccio was out of moves for his target. He demonstrated no interest in listening to reason or arguments that contradicted the decision he made long before inviting us (media) to this pre-trial conference and he promptly asked us all to leave his chambers. While the defense was never there to counter our points, Judge Ciaccio had successfully represented the interests of the defense and...not so surprisingly...he convinced himself to rule against camera access to his courtroom.
I'm sure Judge Ciaccio would like to characterize his position differently, but his impartiality did not resonate in that room. His refusal to hear arguments that conflicted with the defendant's position is all that resonated.
Court & After Court
Dr. Lewek and his lawyer showed up to court about 15-minutes late for their arraignment. Their case was promptly called and was over with in about two minutes. Ironically, Dr. Lewek and his lawyer spent nearly three minutes outside the courtroom being photographed in virtual silence by all sorts of cameras while they waited for an elevator. Their objection and the judge's ruling simply denied the community the opportunity to see an actual court proceeding and instead showed the community two men waiting for an elevator at the Hall of Justice.
How enlightening and informative. Nothing empowers citizens like knowing the HOJ elevators are slow.
The moving target can't be pinned down, but the only thing in writing that denied camera access to the courtroom was Judge Ciaccio citing Section 131.8 subdivision (j) of the New York Court Rules of the Chief Administrator.
After court I called David Bookstaver, the Director of Communications for NYS Courts, and he laughed as he often does when he's on the phone with me. Then, as he often does on the phone with me, he agreed that the judge had every legal right to grant us camera access to an arraignment if he so wished. Bookstaver went on to explain that Rule 131 shouldn't even be on the books anymore and that it expired in 1997 along with that 10-year experiment when cameras were allowed in New York Courtrooms.
Bookstaver said Judge Ciaccio never should've referenced that as a reason to deny access and he said he would recommend that legal counsel consider removing these rules from the books so they are not used again by judges who wish to deny access.
At least I took out one target.
Like with every judge I hope the newly elected Judge Ciaccio takes some time to investigate the law, rules, and cases that deal with public access to their courtroom. Then I hope he takes a position, one that he will strive to maintain and one that he can defend and explain to the community he serves...not just the lawyers who show up late in his courtroom.