Judge orders release of videotape played in open court

NEW YORK–In early March, trial court Judge James Gowan in Central Islip ordered the Suffolk County District Attorney to release to Long Island cable news channel News 12 a copy of a videotape played for the jury in open court during the trial of defendant Robert Shulman.

Gowan found that the speculative argument that the release of the videotape could prejudice Shulman’s right to a fair trial could not overcome News 12’s right to obtain a copy of evidence introduced in open court under the state open records law.

Shulman’s case was the first death-penalty case to be tried in Long Island since capital punishment was reinstated in New York in 1995. The case involves a series of killings that took place in and around Suffolk County. The videotape at issue depicts a residence at which Shulman allegedly committed offenses that were the subject of the trial. A written description of the videotape and its contents has already been published by Newsday, a Long Island newspaper.

After the videotape was played to the jury, News 12 asked the trial court to give News 12 access to the tape or a copy of the tape. Although the trial court denied the request for the tape from court files, the judge told News 12 that it could obtain a copy of the tape from the district attorney.

In early November 1998, News 12 asked the district attorney for a copy of the tape under New York’s Freedom of Information Law. However, the district attorney denied the broadcaster’s request in late November 1998.

Following an unsuccessful appeal to the county attorney, News 12 filed a petition with the trial court in Central Islip in February 1999 for the release of the tape. The district attorney contended releasing the videotape might prevent Shulman from receiving a fair trial. News 12 argued that the district attorney offered no evidence that the disclosure of the videotape would affect the fairness of the trial, and that no applicable exemption to the state FOIL law would support withholding the tape.

News 12 also noted that the New York Department of State’s Committee on Open Government had issued an advisory opinion expressly concluding that there was no proper basis for the district attorney’s refusal to provide a copy of the tape. (In re Application of Rainbow Media Holdings, Inc.; Media Counsel: Lorin Reisner and Craig Bloom, New York)