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.