Last week a Suffolk County Judge threw a blogger out of a criminal courtroom trial because she was blogging about events that happened in an open courtroom. The judge, James F.X. Doyle was concerned that the blogger had been posting “sensitive information” that prospective jurors had been revealing during the jury selection process. Apparently the judge was not concerned enough about the information to have jurors speak at the side bar or in his chamber, a common practice when sensitive topics arise when picking a jury. So he had jurors talking about incest and prior criminal matters from their seat in open court. Well, its called “open court” for a reason. A public trial is a constitutional guarantee. Once something is uttered in a courtroom (provided there is no gag order in effect) it is public information. The blogger was not accused of interviewing the jurors separately just repeating what was said in court. Nevertheless, she was restrained and threatened with arrest. She had to retain a lawyer. The issue was resolved when the defendant accepted a guilty plea the next day, ending the case. But any competent lawyer should have been able to end that case immediately. In fact, had the court continued to try and limit the reporting the defendant could have been on his way to an easy appeal for being deprived of his right to a public trial. Numerous criminal convictions have been overturned because judges kept out family members or other members of the public during certain testimony without explaining their reasons or for having insufficient excuse for doing so.
Now, in today’s Newsday comes a report that Suffolk County Police have arrested a videographer for taking video of the aftermath of police chase. When a police officer objected to his taping, he pointed out that two other people were standing right next to him as well. But since they were not taping anything, apparently the officer had no problem with them standing there. The videographer,Phil Datz, decided not to press the issue. He moved about a block away only to be confronted at that location by a sergeant who promptly arrested him. Datz was given a desk appearance ticket (which still requires being fingerprinted, photographed and criminally prosecuted) and charged with Obstructing Governmental Administration. Anyone who has practiced criminal law for more than a month or so, knows that this “catch-all” charge is usually reserved for folks who were doing nothing wrong but ended up with physical injuries at the hands of police. OGA is often added on to a resisting arrest charge too, because cops can’t just arrest you for resisting arrest, you have to be resisting a lawful arrest for something else in the first place. OGA is usually the preferred choice of underlying crime that police and prosecutors add to cover up excessive force. The damage here was to Datz’s (and all of our) First Amendment rights. The right to photograph or videotape police at work has been so fundamentally established that no officer should be unaware of how wrong it is to try and prevent its occurrence. As long as the person is not interfering with the officer’s work, he is free to record it. After all, we may envy China’s economy, but we do not envy China’s treatment of the press. There are a number of blogs and websites devoted to this issue -Carlos Miller’s Photography is Not A Crime for example. Carlos Miller is a Miami multimedia journalist who has been arrested twice for taking pictures of police activity. He’s beaten both cases, including a resisting arrest conviction that he had reversed on appeal pro se (meaning without a lawyer).
So why was it so hard for Suffolk cops to figure this out and charge this man for merely taking videos? I guess that will have to play out in court, where I hope Mr. Datz doesn’t accept some sort of plea deal that sweeps this under the rug. But I doubt he will get any help from the Suffolk DA’s office. I am currently representing an attorney who was arrested and indicted by the Suffolk DA’s office for merely giving advice to a group of Filipino nurses who were having labor issues at a nursing home they were working at. The Appellate Division issued a scathing decision halting the prosecution as unconstitutional finding that it was a violation of my client’s First Amendment rights. We now have a civil rights lawsuit filed against the Suffolk DA and others that is proceeding in Federal Court. Hopefully on Mr. Datz’s first court date, the Suffolk DA will move to dismiss these charges and he will not have to go through nearly a year of prosecution as my client did. But even dismissal is not enough. Suffolk DA Tom Spota and the Suffolk County Police Commissioner should spend time and effort training their staff about basic constitutional principles so that these types of shameful prosecutions do not occur again.