It was a startling image, one practically invented for the cameras.

Television stations throughout the region broadcast the vast “sea of blue” in New York Supreme Court Justice Richard Allman’s chambers in Brooklyn Criminal Court, showing a courtroom filled with uniformed New York cops mourning their late colleague, slain Brooklyn police officer Russel Timoshenko.

By all accounts, the July arraignment was an emotional event. The New York Times reported that “the courtroom was packed with officers who applauded” the three suspects’ arraignment on murder charges, and the televised image of Timoshenko’s sobbing mother was prominently featured in newspapers and television broadcasts throughout the region, giving New Yorkers an intimate portrayal of the many individuals devastated by the killing.

But according to many experts, it never should have been televised to begin with.

“They cleared the courtroom and filled the room with policemen, and then they filmed it,” said New York State Defenders Association Executive Director Jonathan E. Gradess. “These rogue judges and rogue lawyers decided that they weren’t going to follow the law, and the press was so busy following the story that it wasn’t even noted. . . . There is a general reluctance to recognize that the law right now bans cameras.”

Many legal experts and the media would agree with Gradess that state law bans all television coverage of trials.

But they would be wrong.

Depending on judicial interpretation, cameras actually can be allowed in the courtroom. And as the Legislature prepares to wage its 11th battle over the issue in as many years, people remain largely unaware of the actions taking place in state courtrooms.

The Office of Court Administration for the New York State Unified Court System does not track the occurrence of televised trials, according to Communications Director David Bookstaver. He did estimate, however, that “at least a dozen applications a month are made,” 50-to-60 percent of which are granted “in some form.”

Thus, even by conservative estimates, at least 50 televised trials occur each year in New York State.

Yet the New York State Bar Association had no idea, according to its President, Kathryn Grant Madigan.

“We’re not aware of instances other than the [2005 Christopher] Porco sentencing [in which New York Supreme Court Justice Jeffrey Berry allowed the sentencing and summations in the murder trial to be videotaped] where cameras were permitted,” she said. “It’s very unlikely that we’ll have trial judges approving audiovisual coverage unless the Legislature acts.”


The relevant law, New York State Civil Code §52, prohibits “televising, broadcasting, or taking motion pictures of certain proceedings.” The code forbids filming actions “in which the testimony of witnesses by subpoena or other compulsory process is or may be taken.” But “proceedings” is vaguely defined; it could be taken to mean the entire trial or simply the compulsory portion. The law further requires news organizations to file a written request with the judge and obtain witness consent prior to the trial.

However, on face value, the code bans cameras in the courtroom, leaving New York one of only a handful of states to do so; a number of states revised their laws banning audiovisual coverage of trials in the 70’s and 80’s as technology evolved and television became a standard media tool. New York conducted a 10-year experiment from 1987 to 1997 in which New York Judiciary Law Section 218 gave trial judges discretion over the matter. At the conclusion of the experiment, the Legislature recommended that the new rule be formally adopted.

The Legislature failed to enact the law, however, and the state reverted to Civil Code §52. In 2001, Court TV challenged the code in Manhattan Supreme Court, claiming that it violated both the First Amendment and the New York State Constitution. New York Supreme Court Justice Shirley Werner Kornreich ruled that the issue should be determined by the Legislature, a judgment that was upheld in a 2005 New York Court of Appeals challenge. (Kornreich declined a request for an interview.)

Ironically, despite the legislative inaction, the number of judges choosing to allow trials to be televised appears to have grown.


According to New York State Supreme Court Justice Patrick McGrath of Rensselaer County, “The prior law under the experiment was more restrictive, because you couldn’t film arraignments and other procedures unless the defendant consented. When that 10-year period expired, and we were going under [§]52, which generally prohibits cameras in the court, it was much more open.”

“It is frequent around the state . . .  not for trials, per se, but for various proceedings,” Bookstaver said. “Over the last two to three years, there have been myriad occasions where judges have felt they had the discretion to allow cameras into courtrooms without violating Code §52, for the same reason the Court of Appeals allows cameras in the courtroom — there’s no testimony.”

However, that interpretation seems far from uniform. Under guidelines largely drafted by the Committee to Review Audio Visual Coverage of Court Proceedings, judges need to obtain the consent of the parties involved, but once that’s obtained, judges vary on exactly what parts of the trial can be filmed.

McGrath, for instance, said that he “only prohibited subpoenaed testimony.”

Supreme Court Justice Sheila Abdus-Salaam of the Manhattan Civil Term said, “Regardless of what Code §52 says exactly, I can’t imagine it would omit objections by participants [to filming their testimony]."

“A growing number of judges are reinterpreting [Code §] 52 in a new way, one that was never propounded until it was found constitutional [in the Court TV case], because judges are groping for a way to bring cameras in,” said Stephanie Batcheller, Staff Attorney at the New York State Defenders Association.

There are several schools of thought regarding correct interpretation of the code..

According to Michael Colodner, Counsel to the New York State Office of Court Administration, the law is “ambiguous.”

“The statute says that nobody can televise, broadcast, or take motion pictures in which testimony by subpoena is given but doesn’t spell it out,” Colodner said. “That leaves open all sorts of things.”


Those in favor of cameras in the courtroom say that they promote openness and fairness, while opponents argue that cameras provoke grandstanding and provide little educational benefit.

New York State Chief Judge Judith S. Kaye is a firm proponent. In the Court TV case, Kaye asked New York State Solicitor General Caitlin Halligan,  “Have you taken into account [that] the meaning of 'access' may be changing in the 21st century?”

McGrath concurs. “Openness is good for everyone involved,” he said. “The public sees how it works, and it keeps the courts open.”

However, Supreme Court Justice Carol Berkman of the Manhattan Civil Term frets that half a loaf might be worse than none.

“There’s no point in filming a trial if you can’t film every part of it,” said Berkman. “You call the next witness and then you end up having to stop. It just is a, do I call it an irritant? I’m never quite sure what the upside is.”

“My big issue with all of this,” she continued, “is that it’s always said that the public has a right to know. Why don’t they have the right to know what I do on a standard, run-of-the-mill drug case? I’d argue that that’s actually more important for them to see, in the long run, but they want sexy cases, the ‘boyfriend slashes the throat of a stripper’ cases. . . . They’re not really interested in learning what’s going on in the courts. It’s sensationalism.”

Batcheller agreed, saying, “If there were a way to do it in a C-SPAN way, with gavel-to-gavel coverage, there would be more of an educational interest. But there’s not in the way it’s done now. . . . What Court TV shows as a court proceeding — feeding info, flashing news, someone giving info regarding the trial — it’s just not what a real trial is, so you don’t get that aspect of learning.”

Abdus-Salaam also raised concerns.

“Whereas legislative sessions are televised and can be eye-opening for the general public to the extent that they show what’s being done or not being done, there’s something different about courts,” she said. “You have different rights and different people involved. Somebody’s going to win and somebody’s going to lose if the case goes to verdict, and the rights of all those parties involved must be fairly considered. It’s just a whole different matter to have the cameras focused on what the judge does, the defendant does, the lawyers, the jury, in the courtroom as it's happening.”

Supporters of audiovisual coverage of trials argue that having the cameras focused on what the judge does actually promotes judicial accountability.

The 1997 Committee report found that it is “plausible that the presence of cameras may simply cause some judges to proceed with greater caution and to issue written rulings instead of ruling from the bench on a variety of objections and evidentiary issues.”

McGrath said, “When people are scrutinized, they behave better. You want to know what you’re doing and be on your toes.”

Berkman made the same point about advocate behavior.

“If [cameras] were just here and installed everywhere, in every courtroom, with technology where I could turn off the camera from the bench,” she said, “that’s not a bad thing in terms of justice. You’d know whether the lawyer was abusive or horrible. . . you’d know. It happens.”

Critics, however, fear that audiovisual coverage of trials can impair judges' effectiveness — or, worse, encourage participants to play to the cameras.
 
The 1997 Committee report, while recommending that Judiciary Law Section 218 be enacted, noted that “the presence of cameras has an effect on some judges.” That became the basis for a scathing dissent by committee member Leonard Noisette, who wrote that “37 percent of judges [who responded to the judicial survey] agreed that television coverage ‘tends to cause judges to issue rulings they might otherwise not issue.’ ”

“You can’t ignore a number like 37 percent,” said Batcheller. “That’s a lot. Not the majority, but a lot.”

Berkman, for one, acknowledged the impact of cameras in the courtroom, stating that she would be more circumspect about revealing aspects of a case.

“There’s a difference in the dynamic,” she said. “You have to be more careful as a judge with what you say. In a normal case, I’d say, ‘The court’s offer is x,’ and ask ‘What is the people’s offer?’ In a high-profile case, that’s a much more delicate issue, but it’s just part of what goes on in the normal process of a trial.”

Abdus-Salaam conceded that cameras make judges “more cautious” but worried that they also turn trial participants into actors.

“People, whether judge or lawyers or litigants themselves or even jurors if they’re in the camera angle, they will seem to play to the cameras,” she said. “That’s not what our system of justice is about."

According to defense attorney Barry Slotnick, who served as a Court TV analyst for the O.J. Simpson trial, however, the argument that cameras cause the courtroom to turn into a stage is seriously flawed.

 “There are cameras in courts across the country today, and it’s routine,” Slotnik said.  With O.J. and Paris Hilton and those cases, it’s because they’re celebrities — that’s what causes the spectacle.”

Further, the 2000 televised trial of four Bronx police officers accused of murdering Amadou Diallo, People v. Boss et al., ran extremely smoothly, despite intense public protest over the officers’ acquittal. 

Abdus-Salaam admitted that she admired the way in which Supreme Court Justice Joseph Teresi of Albany, who declined to comment for this article, handled that case, which resulted in a mixed verdict. By all accounts, the proceeding could have been a nightmare.

In fact, some analysts believe that allowing the public to understand and view the trial on television was integral to its salutary outcome, given the intensely charged nature of the shooting and the furor over the ruling.

Batcheller begs to differ.

“We got edited versions of what was going on in the courtroom. It’s hard to tell whether that gave us a fair view,” she said. “In the Boss case, a lot of people felt the trial gave the officers a chance to prove their innocence, but then were only shown these officers slaughtering this innocent man in daylight. But we did an analysis on the coverage. They didn’t show 98 percent of the Boss case, and that’s what we got.”

Gradess agreed, saying, “The Diallo case is often cited by people who say it was a success, but only 43 seconds were shown. It’s not only nonsensical, it’s dangerous.”

Abdus-Salaam concedes that, “some trials with cameras have been tried very well” but says that “she’s not all that in favor of having cameras in the court.”

That said, Abdus-Salaam has never actually presided over a televised trial.

In fact, conjectures one source familiar with the process, the majority of judges who remain adamantly opposed to cameras in the courtroom have never actually allowed it — and thus base their arguments on what some experts feel is nothing more than the message of some very powerful opposition.

Slotnick, for one, blames the defense bar; others blame money in Albany or legislators’ desire to get back at the (oft-critical) press. But regardless of why the bill isn’t passing yet, most judges believe it is only a matter of time.

“We ought to treat it in the same way as we do a tape recorder or a court reporter,” said Berkman. “Ultimately, it has to happen, because technology is as such. Eventually it will just have to be that way.”