In two local, high-profile cases, Penn Yan Village Justice Matthew D. Conlon has taken the extraordinary measure of closing his court to the press. In the interest of public knowledge and openness in government, as well as the constitutional freedom of the press, The Chronicle-Express has consulted legal counsel to regain access to the court.
The first is the case of the Village of Penn Yan’s Attorney, Edward Brockman, 70, who has been charged with misdemeanor forcible touching for allegedly groping a teenage female client while serving as Yates County Public Defender in February 2016. His accuser subsequently died of a drug overdose.
The second case is of a 17-year-old male charged with making terroristic threats against Penn Yan Academy as a class D felony. (While he was named in a previous police report, the defendant has since been granted youthful offender status.)
In a letter to Conlon dated June 5, attorney Michael J. Grygiel, of Greenberg Traurig, Attorneys at Law and co-chair of the National Media and Entertainment Litigation Group, wrote:
“We respectfully submit this letter in opposition to the Court’s recent oral rulings closing the courtroom in both cases, which we understand resulted from closure motions initiated by the respective defendants pursuant to sua sponte (voluntary) invitations from the court. The complete and continuing denial of access imposed by these rulings has had a direct and substantial effect upon the interests of the newspaper and the public it serves by preventing informed, contemporaneous and accurate reporting on these newsworthy prosecutions and the workings of the criminal justice system. Moreover - and disturbingly - the circumstances of the closure orders suggests that they were issued in retaliation for Reporter John Christensen’s news coverage of these cases. This raises grave concerns under the First Amendment.
“... The Chronicle-Express has standing to contest and a right to be heard in opposition to the closure of these court proceedings. New York courts have repeatedly held that notice and an opportunity for interested parties to object are required before a closure motion may be decided. Substantively, absent extraordinary circumstances criminal proceedings in New York State are open to the public. The U.S. Supreme Court and New York Court of Appeals have established only narrow exceptions to this principle in specifying the stringent evidentiary burden that must be met to justify a denial of public access. As set forth more fully below, the Court’s closure rulings violate the First Amendment because there is no evidence that the substantive standards for a denial of access have been (or can be) met in these cases.”
In the six-page request, Grygiel cites state and federal case law to assert that, “All phases of proceedings in criminal courts in New York State, from arraignment through sentencing, are presumptively open to the public and the press. It is well established that the public’s right of access to judicial proceedings under the First Amendment is not limited to the criminal trial itself but pertains ‘equally to other phases of a criminal action,’ (Associated Press v. Bell),” including pretrial hearings. In Press-Enterprise v. Superior Court,478 U.S. 1, the United States Supreme Court held that the press and public have a qualified right to attend criminal proceedings in general, and specifically to attend preliminary hearings. This right applies both under the state and federal constitutions.”
Grygiel contends that a judge’s discretion to close a courtroom must be exercised on a case-by-case basis according with procedural requirements established under the First Amendment and Judiciary Law to protect the press and public from arbitrary or unjustified closure of criminal proceedings.
“The criminal defendant bears the burden of proof in overcoming the right of the press and public to attend criminal proceedings,” writes Grygiel, and that burden can be met only by a specifically demonstrating there is “a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent; that reasonable alternatives to closure cannot adequately protect the defendant’s fair trial right; and that any restriction on the right of access is narrowly tailored.”
Grygiel said a mere “possibility” of prejudice does not justify closure, and a defendant must show that closure would prevent prejudice, and that other, reasonable alternatives will not adequately protect their rights. “In many cases, jury selection procedures, change of venue, or curative or limiting instructions to the jury may be found to protect the defendant’s rights,” he wrote, and explained that only portions of the proceedings may be closed and the court’s rulings must be justified by specific factual findings.
In the case of the 17-year-old charged with making terroristic threats, Grygiel writes that defendant, “who is eligible for youthful offender status, is currently charged with a class D felony. His prosecution therefore ‘fall(s) outside the privacy provisions of CPL 720.15(2), ‘a conclusion “compelled by a straightforward reading of the statute.’(Capital Newspapers v. Moynihan)” He adds, “The statutory discretion conferred by CPL 720.15(2) to consider a youth’s asserted privacy interest as a ground for closure in misdemeanor cases must be exercised on a case-by-case basis in accordance with the procedural requirements and substantive standards established in Press-Enterprise II and Associated Press v. Bell and their progeny.”
Addressing Conlon’s spontaneous invitation of a motion from either side to close the court, Grygiel cites Press-Enterprise II and Westchester Rockland Newspapers v. Leggett; “the Third Department held: A motion for closure must be made in open court, the person seeking closure must show compelling reasons for it, affected members of the media should be given the opportunity to be heard, and the reasons for closure should be given in open court.”
Addressing the Brockman case, Grygiel states, “The decision to close the courtroom in the Brockman prosecution offends fundamental First Amendment principles because it was apparently motivated by the Court’s disapproval of the content of Mr. Christensen’s reporting about previous events in the case. It is axiomatic that ‘above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ (Police Dept. of Chicago v. Mosley, 1972) Indeed, in order to ‘assure unfettered interchange of ideas,’ (Roth v’ U.S.,1957), and ‘the widest possible dissemination of information from diverse and antagonistic sources,’ (Associated Press v. U.S., 1945), restrictions based on the content of speech are presumptively unconstitutional under the First Amendment.”
Quoting the decision “When regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited merely because public officials disapprove the speaker’s views,” Grygiel states, “Here, Mr. Christensen reported several articles published by the newspaper concerning various phases of the Brockman prosecution, including a report of the court’s denial of a defense recusal motion on the ground that your honor had a prior professional relationship with the defendant, who served as Penn Yan’s Village Attomey. Sometime after the court denied the recusal motion, it invited a court closure motion from defense counsel. Unsurprisingly, the motion was granted. Given that Mr. Christensen has been the only reporter to provide coverage of Mr. Brockman’s prosecution — in fact, on certain occasions he has been the only person present in the courtroom during public proceedings in the case — it would appear difficult to deny that closure was motivated by anything other than the Court’s displeasure with The Chronicle-Express’s prior reportage.”
Grygiel said denying access to The Chronicle-Express for reporting on the two cases impairs the communication of news and commentary on current events.
One month after this letter was sent, Grygiel received a reply from Conlon dated June 15, but postmarked July 3 acknowledging Grygiel’s “thorough and scholarly treatment of the subject.”
Conlon commented, “As I’m sure you’re aware, you may bring an application at any time should your client seek to draw the Court’s attention to an issue affecting your client’s rights. You may file a motion on notice to participating counsel and schedule the matter at everyone’s convenience with the Court Clerk.”
The 17-year-old case
The 17-year-old was scheduled to appear in Penn Yan Village Court Monday, July 9 to accept or reject a plea offer from District Attorney Todd Casella. This reporter was present in court, and Conlon did not repeat his invitation to have the court closed.
Represented by attorney Giancarlo Facciponte of Tully Rinckey PLLC from Syracuse, the youth was offered a deal to plead to the original charge of making terroristic threats (class D felony) in exchange for a promised sentence of 5 years probation and 100 hours of community service, with adjudication as a youthful offender. After a “last ditch effort” by Facciponte to reduce the term of probation, Casella stated that the offer stood and would expire that day if not accepted. Facciponte asked his client if that was acceptable, and he agreed.
Casella explains that as a felony charge, the plea bargain must still be approved by Yates County Judge Jason Cook before it can be finalized. The youth remains released on $10,000 bail/$20,000 bond. He receives services through the Penn Yan Central School District but not in a traditional setting.