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BLOG: Zagari's secret arraignment

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.

For the second time in the past year a Monroe County Court Judge secretly arraigned a man who was shot by police officers.  To me, this provides #OpenNYCourts further evidence that our court systems prefer to act in secret...especially when the matter of great public interest involves a government official.

The judge in question is Acting County Court Judge Melchor Castro.  Last year I pointed out how Judge Castro wrongly denied the public access to the hospital room arraignment of Ralph Strong Jr., a man accused of shooting a Rochester Police officer and who was in turn shot multiple times by officers.  Read more here.

Our policy is clear, arraignments wherever they are held are presumptively public proceedings, David Bookstaver, the Director of Communications for New York's Unified Court System, told me when I informed him of the situation.  In as many words, he said Judge Castro was wrong to deny access to that arraignment.

Last month, Judge Castro did it again.  This time Vincenzo Zagari, a man shot multiple times by a Monroe County Sheriff's Office Deputy in January, was arraigned in Judge Castro's courtroom with only lawyers and his family around to see it.  This happened despite my repeated requests of court officials, and Judge Castro specifically, to be present for any arraignment of Zagari whether it be in the hospital or elsewhere.

This is what Judge Castro wrote me in a January 27th email reply to my request for access to Zagari's arraignment:

Dear Mr. Carroll, I do not believe that it is appropriate for me or my chambers staff to notify you personally regarding what matters will be appearing in my court on a particular day. As you know, calendars are generated on the afternoon of the prior day. you should check with the Clerk of the City Court for my Part 5 calendar and the Clerk of County/Supreme for the Part 9 calendar.

As it turns out, despite these words, Judge Castro took steps to secretly arraign Mr. Zagari on February 19th by adding the arraignment to his calendar minutes before the 2 pm. proceeding.  Or at least thats what I was told happened, no court official has even provided me a document to prove that the matter was actually, physically added to any court calendar for that day.

So the judge defiantly tells me go check the court calendars if you want to know about this matter and then he makes sure there is no way to actually find it on his court calendar.  Absent my calling his chambers or the court clerk every ten minutes for three weeks, there would be no way of my knowing about this public court proceeding.

Zagari was released from the hospital a day before he was arraigned on a Violation of Probation charge.  Here is what happened at the arraignment, I learned of it from court sources minutes after it was over. Read more here 

Why should you care?

Because your government should not hide its court proceedings, especially when the law enforcement-involved shooting of a citizen is at issue.

The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings.  We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it.--- John F. Kennedy.

The reason I requested to be present at Zagari's arraignment, be it in the hospital or in a public courtroom, was to bring you pertinent facts about this case.  Monroe County Sheriff Patrick O'Flynn told this community that Zagari was struck twice, in the hand and in the chest, and that his deputy fired multiple shots during the encounter.

Being present for a court proceeding could offer us a chance to verify those statements.  My sources suggest that Zagari in fact suffered multiple gunshot wounds, perhaps far more than just two, and if that were true it is the community's job (often via media representatives) to verify the Sheriff's public statements.

Perhaps members of the media being in court would've allowed you to learn if Zagari's family or lawyer had information to provide to the community, if certain deputies were present and why, or perhaps Zagari's demeanor would've been one of defiance and disregard for the events that unfolded.  Maybe it wouldve been one of remorse and regret? 

These are things we as journalists observe, record, and inform you about.  They don't appear in court transcripts and we sure as heck can't inform you about them if Judge's like Melchor Castro take conscious steps to hold these proceedings in secret.

Chief Administrative Judge Craig Doran has told me he's looking into ways to avoid this in the future and ensure that court calendar add-ons are publicly published in some way, as they are public records.  And it is worth nothing that this is an issue in part because our state lawmakers have failed to act on matters of transparency and accountability in the court system for many, many years.

But it is also an issue because the only method citizens have to hold judges accountable is public reports like this one.  And so long as Judge Castro (or any judge) takes steps to conduct the people's business in secret, especially when it involves his friends in law enforcement or government, we will point that out to the public.

Judge Castro, you're welcome to respond and provide a comment that I will publish here.  We know you have my email address.

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