MEMORANDUM OF LAW OF REGIONAL NEWS NETWORK IN SUPPORT OF ITS MOTION FOR LIMITED INTERVENTION AND APPLICATION TO PROVIDE AUDIO-VISUAL COVERAGE OF TRIAL PROCEEDINGS.

• Author: Grygiel, Michael J.

PROLOGUE

People v. Boss(1) arose from a March 25, 1999 Bronx County Grand Jury Indictment charging the defendants, New York Police Department (NYPD) officers Kenneth Boss, Sean Carroll, Edward McMellon and Richard Murphy, with two counts of second degree murder and one count of first degree reckless endangerment(2) based on the fatal shooting of West African immigrant Amadou Diallo, as he stood in the vestibule of his Bronx apartment building on Wheeler Avenue in the early morning hours of February 4, 1999.(3) The four officers, each members of the NYPD's aggressive Street Crimes Unit with five to seven years experience on the force, encountered the unarmed Diallo while searching for a rape suspect.(4) When Diallo failed to respond to the officers' commands and made gestures which the officers interpreted as threatening, the police proceeded to fire 41 shots, 19 of which struck Mr. Diallo and fatally wounded him.(5)

Contending that "It]he trial [of the officers] will presumably include testimony addressing, among other things, what prompted the ... officers to fire forty-one times at a victim who had no weapon, and whether the fusillade of shots was justifiable ..." and that, "[t]hese issues are of public dimension,"(6) RNN sought to persuade the trial court that, because N.Y. Civil Rights Law section 52(7) imposed a per se ban on audio-visual coverage of the trial in this case, it violated RNN's rights of "`liberty of speech [and] of the press' under article 1, section 8, and of `equal protection of the laws' under article 1, section 11, respectively, of the New York State Constitution."(8) Pursuant to those state constitutional rights, RNN also sought to provide audio-visual coverage of the trial.(9)

On June 4, 1999, Bronx County Supreme Court Judge Patricia A. Williams denied RNN's motion.(10) Following the transfer of the trial from Bronx County to Albany County,(11) Courtroom Television Network (Court TV) petitioned Supreme Court Justice Joseph C. Teresi for permission to televise the trial on the grounds that section 52 was unconstitutional. Noting the change in venue and that Court TV's challenge (unlike RNN's) was premised on both Federal and State Constitutional grounds,(12) Justice Teresi granted Court TV's motion and allowed Court TV to televise the trial.(13) Subsequently, a number of New York trial courts have followed Justice Teresi's lead and allowed audio-visual coverage of both trials and related proceedings.(14) The issue of section 52's continued force and constitutionality, however, has not been addressed by New York's appellate courts.(15) This Memorandum will contend that, as a matter of New York state constitutional law, section 52 is unconstitutional, "hopelessly anachronistic and [in need of] permanent shelving"(16) by the courts.(17)

PRELIMINARY STATEMENT

"A trial is a public event. What transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 (1947).

WRNN-TV Associates, Ltd., the owner of WRNN-TV/Regional News Network ("RNN"), respectfully submits this memorandum of law in support of the station's motion to intervene in the above-captioned criminal proceeding for the limited purposes of (a) seeking to persuade the Court that, to the extent N.Y. Civil Rights Law [sections] 52 prohibits audio-visual coverage of the trial in this case, it violates RNN's rights of "liberty of speech [and] of the press" under Article 1, Section 8, and of "equal protection of the laws" under Article 1, Section 11, respectively, of the New York State Constitution, and (b) requesting a determination that RNN is entitled, pursuant to those state constitutional rights, to provide audio-visual coverage of the trial in People of the State of New York v. Kenneth Boss, Sean Carroll, Edward McMellon, and Richard Murphy (Bronx County Grand Jury # 40894/99). Based on the authority cited below, RNN has standing to bring this motion and request a determination that, as applied in this case--a trial probing the veracity of what took place "[i]n the early morning hours of February 4, [1999] [when] 19 of 41 bullets fired at Amadou Diallo ripped into his body as he stood blameless, unarmed and defenseless in the vestibule of his building" (Ex. "B" to Grygiel aff.)(18)--Civil Rights Law [sections] 52's imposition of an absolute, generalized ban on RNN's audio-visual coverage exceeds legislative authority and violates its rights to free speech and equal protection under the New York State Constitution.

The trial of New York City Police Department ("NYPD") officers Boss, Carroll, McMellon and Murphy on second degree murder charges based on their tragic shooting of Mr. Diallo will be conducted in a Bronx County courtroom with a restricted number of public seats. The press seats will be limited to less than that. For the millions of greater New York metropolitan area residents who are unable physically (or financially) to attend, there is only one opportunity to observe the events first-hand. Without a determination from this Court that [sections] 52 violates RNN's state constitutional rights to provide "gavel-to-gavel" audio-visual coverage of the trial, that singular opportunity will be irretrievably lost. This is a novel question; apart from a March 3, 1999 Decision and Order of Albany County Court(19) which is not binding on this Court, no reported case has addressed this issue in New York State.

A prosecution of police officers carries by its nature a fundamentally public aspect: stated bluntly, in this case those entrusted with upholding and enforcing the law have been charged with violating it, with fatal consequences. The details of this trial will present information crucial to continuing public judgments about grave (indeed, homicidal) charges of police brutality--judgments that all citizens of the Bronx must make for themselves. The public is entitled to know about, debate--and ultimately judge--the decisions and judgments by defense counsel, the Bronx County District Attorney, and the Court in this regard. To engage in the sort of informed participation in governance contemplated by the public's constitutional right of access, it is not enough for the public merely to learn, through second-hand, subjective, after-the-fact interpretations, what took place in the courtroom; rather, the public must have direct and unmediated access to the proceedings that provide the bases for the decisions and judgments of the trial participants.

The unique properties of modern technology and ten years' experience with cameras in New York State courts confirm beyond reasonable dispute the ability of audio-visual coverage to transmit unobtrusively and preserve forever the events of this momentous trial. Critically, "[n]o criminal conviction in New York has ever been reversed or set aside on the ground that audio-visual coverage interfered with the defendant's right to a fair trial." (See Ex. "J" to Grygiel aff. at 99) Moreover, there is no "evidence that the presence of cameras in New York cases has actually interfered in a particular case with the fair administration of justice." (Ex. "L" to Grygiel aff. at 84) Yet, despite the technological capability to reach the broadcast audience, the public's pervasive interest in hearing the parties' evidence, and the unequivocal conclusion of two committees appointed by the State Legislature that controlled camera coverage belongs permanently in New York's courtrooms, Civil Rights Law [sections] 52 excludes such coverage, relegating New York State's citizens (and history) to second-hand reports of an adversarial test of critically important legal, political, and social issues.

We do not mean to suggest by these arguments that the judiciary lacks authority to adopt general rules of conduct concerning media coverage of trials or to require their observance in ordinary circumstances. This case presents, however, extraordinary circumstances: the use of [sections] 52 in a particular case to impose a per se exclusion, without regard for its substantive curtailment of state constitutional rights, the availability of less restrictive means, or the absence of factors which would validate the rule as a reasonable control of courtroom decorum.

As set forth above, this is a criminal case of exceptional importance and national interest. Transcending its legal issues and the inherently public features of its verdict, the details of its trial evidence hold the substance of issues critical to a democratic society--whether the barrage of police gunfire that killed Mr. Diallo was a tragic mistake or a lethal Schwarzenegger moment, and the public accountability of the police when criminal charges of excessive force have been raised against members of the force. Indeed, it is no exaggeration to say that this trial may (regrettably) be New York City's equivalent of the infamous Rodney King case (with semiautomatic pistols substituted for billy clubs). Under these circumstances, RNN respectfully submits that Civil Rights Law [sections] 52 should not--and, indeed, cannot--bar television cameras from the trial proceedings in this case. Authorizing audio-visual coverage can only vindicate Justice Holmes's ancient (but prescient) admonition:

It is desirable that the trial of causes should take place under the public eye ... that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). STATEMENT OF FACTS

1. Regional News Network and the Elements of Its Application

   As a 24-hour television news network, RNN's philosophy is to cover all news events as they happen--thoroughly, continuously and in depth.(20) The network's journalistic mission is to broadcast to its viewers, in conformity with fair journalistic standards, the newsworthy information which it gathers. Consistent with this goal, RNN often covers local and regional criminal proceedings, including trials, which have...