By STEVEN COOK
CAPITAL REGION — They were both crimes that outraged Schenectady residents, but in only one could the public see the killer sentenced without having to be in court themselves.
When James Wells was sentenced in Schenectady County Court last year for the 2011 murder of 15-year-old Eddie Stanley, the judge in the case allowed news photographers and cameramen to record Wells receiving his sentence of just over 30 years to life in prison.
But last month, in a case that equally outraged the community, a different judge denied requests to allow still and video cameras to document the proceedings. In that case, cameras had to be left outside the courtroom as Michael Briggs received a sentence of 30 years to life for the December 2012 killing of 82-year-old former nun Mary Greco.
In a time when media in other states are routinely granted access to court proceedings and the highest profile cases televised, camera access to courts in New York remains comparatively limited.
The courts are open to anyone who wants to attend. Visitors can take notes, but audio and video coverage of the proceedings requires special permission from the presiding judge.
The final decision essentially rests in a judge’s interpretation of a particular section of state law. That means one judge can decide to allow cameras, as Judge Michael V. Coccoma did in the Wells case, and another can use the same statute to deny them in a similar case, as Judge Karen Drago did in the recent Briggs case.
Such differing interpretations are not unusual.
“What we have amounts to a crazy quilt of practices within New York,” Robert Freeman, head of the state Committee on Open Government, said last week.
And it’s been that way for some time. There was a 10-year trial run for expanded access that ended in 1997. But, Freeman said, in 2014, the time has come for better access to broadcast court proceedings.
“It involves the public’s ability to better understand and appreciate the court system,” Freeman said.
Change could be coming.
New York Chief Judge Jonathan Lippman proposed last year that a more uniform and open camera policy be instituted. But he can’t change the rules by himself — that would take an act of the Legislature.
The body did not take up the issue in the 2014 session. State Sen. Hugh Farley, R-Niskayuna, who favors greater access to cameras with some continued restrictions, said he expects the issue to be taken up in the next session.
Lippman’s proposal came in his 2013 State of the Judiciary address. The chief judge wrote that the issue “cuts to the very core” of efforts to ensure the public understands what happens in the state’s courts and that the public trusts what happens in court.
“It is vital that concerned citizens, bombarded with crime shows and court dramas that do not provide a reliable representation of the justice system, have the fullest access to the real thing,” Lippman wrote.
The current law governing cameras in the courts, Section 52 of the state Civil Rights Law, dates back more than six decades, Lippman noted. It was enacted in a time when camera equipment was bulky and distracting. The “wonders of modern technology” have eliminated that, he wrote.
The current process involves written applications to take photographs or video. The applications are supposed to be submitted in advance, but are often considered if submitted the morning of proceedings. The judge then considers the applications and seeks input from both sides.
In Schenectady County, prosecutors generally take no position on such applications. Defense attorneys generally oppose them. The judges then rule. Reasons given to deny can be security concerns or small or crowded courtrooms.
Judges sometimes seek further input from media members, but that can be rare. Once a ruling is made, there’s no further discussion, including alternatives like allowing a single video camera and still camera for media to share.
Judges that grant access can still restrict who is filmed. In the case of sentencings, judges can restrict filming of those giving victim impact statements, depending on the victim’s wishes. Juries are never to be filmed or photographed.
Local defense attorney Steve Signore said he generally opposes such applications when judges seek his input. He doesn’t believe it adds anything to the process.
“I think it appeals to a prurient interest,” Signore said. “We all kind of thrive on the stuff in the newspaper, who got shot. I don’t like to contribute to that, especially when you’ve got a client there.”
Vito Caruso, chief administrative judge for the 4th Judicial District, noted each trial judge has the ability to allow cameras in the courtroom. His reading of the current law includes no filming of witnesses, along with no filming of jurors. But the lingering concerns, Caruso said, have been on security issues and concerns that witnesses and jurors not be harassed or intimidated.
Beyond media photographs and filming, the district has begun posting signs at courts informing the public of the prohibition on filming, because everyone now has that capability in their pockets with their smartphones. Along those lines, phones are allowed into state court buildings, but federal court has an even more restrictive policy on cameras, requiring all phones of the public and media be surrendered at the security checkpoint for retrieval upon exit.
In state courts, Caruso said the basic rule is no cameras, but the trial judge has the ability to alter that in each case. The public’s right to know can be used as a reason to alter it and allow cameras.
Caruso said he sees any opening up of the rules by the Legislature would still give the trial judge discretion, but he said he is in favor of allowing greater access, though not lifting the rules completely.
“There probably should be restrictions so as to avoid a circus-like atmosphere or an unfair atmosphere that might occur if you had unfettered access,” he said. “I think that you, again, temper that with the public’s right to know, but it has to be controlled because it can just get out of hand.”
Caruso said he believes witnesses and jurors should continue to be off limits, as well as other court personnel.
Chief Judge Lippman’s proposal is that all court proceedings, including testimony of witnesses at hearings and trials, be open, subject to the discretion of the presiding judge, but the proposal also provides extra protection for witnesses. If a witness objects to being filmed, the chief judge argues, their testimony could still be broadcast, but with the witness’ facial features obscured.
“Under this new initiative, the process for permitting broadcast of court proceedings will be open and consistent,” Lippman wrote. “Importantly, the privacy of jurors and vulnerable witnesses will be protected and courts can assure the conduct of fair and dignified proceedings.”
He also cited practices elsewhere, writing that an “overwhelming number of states allow cameras in their courtrooms on some level.”
The New York Civil Liberties Union’s stance on cameras in the courtroom is one of qualified opposition. In a legislative memo related to a prior attempt to allow greater access, a memo officials said still reflects the organization’s stance, the NYCLU argues a defendant should be given the right to deny recording of courtroom proceedings.
The organization referenced the state’s 10-year trial run of expanded access for cameras in the courts. The NYCLU’s recollection of the success of that experiment differs with Lippman’s. The organization argued a survey of judges afterward showed nearly half had concerns it posed a potential threat to judicial independence.
Lippman, however, cited the opposite, writing that “numerous studies” declared the experiment a success.
“The NYCLU does not take an absolutist position in opposing the use of electronic recording or broadcasting devices in the courtroom,” the memo reads, “however, as an advocate for civil liberties, the organization cannot support the use of such devices in court proceedings without providing a defendant the right to veto cameras at his or her trial.”
Consideration in 2015
Farley said he sees Lippman’s proposal being taken up during the next session, which gets underway in January. Such a proposal is already in committee in both houses. It echoes much of Lippman’s language from his 2013 address.
Farley, who is also a lawyer, noted there are pluses and minuses.
“I think it will be considered in the next legislative session,” Farley said. “Generally speaking, I’m in favor of cameras in the courtroom with certain restrictions.”
He noted unrestricted access to video witnesses can make already reluctant people that much more hesitant to testify. As for the bill’s future, he said he would lean toward at least taking a vote on it.
Lippman wrote that his proposal will make the courts accessible to everyone, those who can watch the proceedings themselves and those who can’t.
“With this change,” he wrote, “the prevailing standard will be: If you can see something as a spectator in a courtroom, you should be able to see it as a public viewer outside the courtroom as well. It’s as simple as that!”
This story originally appeared in The Daily Gazette.