Rochester media filed a formal complaint with a judicial oversight commission about courtroom access issues that arose during the trial of Charles Tan.
1 The State Commission on Judicial Conduct 400 Andrews Street Rochester, NY, 14604 Background Information October 2 nd , 2015 Matt Malyn Dick Moss 13WHAM-ABC News Democrat & Chronicle News Director News Director 4225 W. Henrietta Rd 55 Exchange Blvd Rochester, NY, 14623 Rochester, NY, 14614 Newsroom: 585-334-8743 585-766-4783 [email protected][email protected]***Filed on behalf of and with the support of the following media outlets: Time Warner Cable News – Rochester – News Director Ed Buttaccio, 585-756-2424, [email protected]WHEC-NBC10 – Rochester – News Director Chris Ford, 585-546-0770, [email protected]WROC-CBS8 – Rochester – News Director Constance Howard, 585-287-8000, [email protected]Complaint Information JUDGE: Hon. James Piampiano COURT & COUNTY: Monroe County Court DATE OF INCIDENT: Monday, September 28 th , 2015 CASE: People of the State of New York v. Charles J. Tan INDEX # OF CASE: 158/2015
CASE: People of the State of New York v. Charles J. Tan
INDEX # OF CASE: 158/2015
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Details of Complaint
The parties join together in a complaint against Monroe County Court Judge James Piampiano. We believe Judge Piampiano ignored well-established public access laws during the trial of Charles Tan in that he allowed jurors to visit the Tan home while not permitting any representative of the media to accompany the jurors. Beyond that, Judge Piampiano did not sufficiently respond to media requests to discuss the visit to the household – where Tan’s father, Liang Tan, was fatally shot – and he also did not allow a hearing for a media lawyer to present reasons why the media should be present with the jurors. Never did he elucidate reasons for his decisions.
The parties involved in this complaint agree it’s important the Commission on Judicial Conduct be made aware of the situation referenced above and described in detail below. The importance is the media’s ability to provide the community we all serve with accurate and detailed information especially during a trial, and in this case it was one of vast community interest.
Late on Friday, September 25th it was determined by Judge Piampiano that the jury would take the unusual step of touring the crime scene. This determination was learned in open court but to date, and following repeated requests, no written order or communications detailing or explaining the provisions or basis for this ruling has been provided. It was learned that the judge would require deputies to secure a 300-foot perimeter around the home, in a public neighborhood, and that media and the public would not be allowed within that perimeter while the jury was at the scene. The jury would be escorted by deputies in small groups off a bus, into the home, to the room where the victim was found dead some seven months prior, they would observe the room without speaking, and the be taken back to the bus.
We can only trust that this is what happened. We, the media covering this trial, and the community as a whole, have no independent verification that this is what happened. We have no way of knowing if counsel pointed to anything, helped a juror up a stair, suggested something quietly or hinted at something significant, if the judge spoke, or if he said different things to different jurors.
Such a visit invokes New York Criminal Procedure Law 270.501, which, in its current form, does not offer guidance to judges for consideration of the public aspect of this trial. However, it """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""1 N.Y. Criminal Procedure Law § 270.50 states:
1. When the court is of the opinion that a viewing or observation by the jury of the premises or place where an offense on trial was allegedly committed, or of any other premises or place involved in the case, will be helpful to the jury in determining any material factual issue, it may in its discretion, at any time before the commencement of the summations, order that the jury be conducted to such premises or place for such purpose in accordance with the provisions of this section. 2. In such case, the jury must be kept together throughout under the supervision of an appropriate public servant or servants appointed by the court, and the court itself must be present throughout. The prosecutor, the defendant and counsel for the defendant may as a matter of right be present throughout, but such right may be waived. 3. The purpose of such an inspection is solely to permit visual observation by the jury of the premises or place in"question, and neither the court, the parties, counsel nor the jurors may engage in discussion or argumentation concerning the significance or implications of anything under observation or concerning any issue in the case.
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certainly does not empower a judge to (seemingly arbitrarily) establish a 300-foot perimeter in a neighborhood far beyond the walls of his courtroom and – by order of a Sheriff’s Office Deputy – restrict media and public access to a public street, sidewalk, or neighborhood.
Both 13WHAM and the Democrat and Chronicle reached out to Judge Piampiano before the jurors traveled to the Tan household. Details follow here:
• In an effort to seek clarification and access 13WHAM News contacted Judge Piampiano’s Chambers (receptionist), law clerk, and the Administrative Judge (Craig Doran) of New York’s 7th Judicial District. Such contact was made promptly Monday morning (7:25 a.m. on September 28, 2015) before regular business hours and in the hopes of not disrupting the ongoing trial proceedings. It was also noted that the 13WHAM News legal team wished to be provided with a copy of the judge’s order and a reasonable amount of time for review. (See: Attachment #1)
• Having not heard any response 13WHAM News promptly reached out to the New York State Unified Court System’s Director of Communications for guidance as to recommended procedure and expectation of access. Mr. David Bookstaver explained to 13WHAM’s Sean Carroll in a brief phone call around 8:51 a.m. Monday that the proper guidance on this was for the judge to, at the very least, designate a “pool reporter” that should be allowed to witness the jury’s visit to the crime scene and share those observations with other media and the public. Mr. Bookstaver specifically explained that the scene should be viewed as a “court exhibit” and public access must be granted. Mr. Bookstaver invited me to share his contact information if the judge or others wished to contact him regarding this matter.
• Following that phone call a follow-up email to Judge Piampiano’s Chambers (receptionist), law clerk, and the Administrative Judge (Craig Doran) of New York’s 7th Judicial District was sent. That email (sent at 9:08 a.m.) briefly summarized the above conversation with Mr. Bookstaver, invited direct communication with Mr. Bookstaver, and specifically requested that 13WHAM Reporter Jane Flasch be designated the pool reporter and a photographer from the Democrat and Chronicle be designated the pool camera to document this exhibit. (See: Attachment #2)
• 13WHAM and other media outlets were made aware of the Judge’s decision and the vague parameters he set for the visit in open court. The Judge refused to entertain any inquiries or petitions from the media, ignored a message passed to the judge by a member of the media via a court deputy. The judge even went so far as to defiantly dismiss such inquiries regarding public access to a public trial by saying – “This is not a press conference.” This exchange and the judge’s response was immediately summarized and documented by Democrat and Chronicle Reporter Jon Hand on his public Twitter feed. (See: Attachment #3)
• Having learned of the judge’s decision 13WHAM made one last effort to obtain a copy of the judge’s order and specific instructions so that a legal team could review it and, more pressingly, our news team could comply with the judge’s order…even if we disagreed with it. That email was sent at 10:33 a.m. and to date there has been no reply from Judge
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Piampiano, his team, or the Administrative Judge for the 7th Judicial District. (See: Attachment #4)
• Subsequent to these email threads it was learned that the email address for Chief Administrative Judge Craig Doran ( [email protected] ) was not up to date and he did not likely receive or view this email thread. The thread was subsequently sent to a different address ( [email protected] ) so that Judge Doran is retro-actively informed. To assume he was informed of this thread on Monday morning would be incorrect, although it would have been obvious to Judge Piampiano’s chambers that there was an attempt to include Judge Doran on the thread.
Similarly, the Democrat and Chronicle also reached out to Judge Piampiano, beginning the week before the visit to the Tan home. In particular:
• Following the process used to ask for courtroom photography during the trial, Democrat and Chronicle reporter Jon Hand on Sept. 25 emailed the judge’s staff, asking for an opportunity to discuss media access for the home visit. Those requests went unanswered. He again emailed the judge’s chambers the morning of Sept. 28. Copies of the two emails are included here. (See Attachment #5)
• In court on Monday, Sept. 28, Jon Hand, again in open court without the jury present, tried to request of the judge that media access be discussed. In particular, he first asked that the judge suspend a decision on media access so the Democrat and Chronicle could contact its attorney. Mr. Hand stated that the visit to the Tan home was, in essence, a movement of the courtroom, and that public access and open courts laws would still apply.
• The judge directed that court security ask for specifics about Mr. Hand’s request, and Mr. Hand again relayed that he wanted the opportunity to contact the Democrat and Chronicle’s media lawyer to intervene. Judge Piampiano brusquely responded to the request, saying that the courtroom would not be the site for a “press conference,” and left the bench. Shortly thereafter the jurors were transported to the home. Also, as noted earlier here, Mr. Hand’s Tweets detailed his request and lack of substantive response from the judge.
• The media was allowed to be 300 feet from the home, but this was an accommodation for photographers. This clearly does not substitute for media access to the Tan household.
First and foremost, the fact that the courtroom is open to the public is well-established law, as demonstrated by the U.S. Supreme Court ruling in Richmond Newspapers v State of Virginia. When the courtroom in essence moved to the Tan home, the presumption of access accompanied that move.
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This is not to say that judges cannot close courtrooms. They can, but this is done usually at the request of a party to the action and the judge must, under the law, provide his or her rationale for the closure. Also, alternative to closure should be explored first.
In this case, there may well have been reasons for Judge Piampiano to be concerned about a media visit to the Tan household. The jurors visited the room where Liang Tan was killed, and, perhaps, there were concerns about the proximity of the media to the jurors. But, by ignoring the media requests for openness, the media was not given the opportunity to even offer solutions. For instance, as 13WHAM requested, the judge or media could have selected a “pool reporter” – a single reporter who would also be in the room – and an agreement reached that the reporter could not take notes during the jury’s visit to the room. The presence of a single reporter would not have been disruptive to the process. Unfortunately, because Judge Piampiano was unwilling to even speak with the media about the home visit, this alternative – or others that also would not have been disruptive to the process – could not be considered.
Similarly, Judge Piampiano’s unwillingness to even substantively address the issue with the media leaves the media – and the public – unsure about what his rationale was for refusing access to the Tan home. And this was exacerbated when Judge Piampiano, possibly in contravention of the law, did not allow the media attorneys to make a formal request for openness.
Any argument that opening the court visit to the media would require opening the visit to the public runs counter to legal precedent that media requests can be treated differently in court actions. This is evident by requests for media photography, within the limits now allowed by state law. Similarly, the privacy of jurors is not at issue here. Reporters are in the courtroom every day with the jurors, and know their identities. Yet they do not ever approach the jury until after a verdict is rendered, and then only speak to those jurors who say they are willing to discuss the case. This relationship would not have changed with a reporter or reporters accompanying the jurors to the Tan home. Jurors would not have been identified.
The Commission has multiple options in disciplining a judge, and it would be foolish on our part to expect that Judge Piampiano’s actions warrant the most severe of discipline, nor do we seek that. But we do believe a lesser level of discipline is justified, both as a reminder to Judge Piampiano and others on the bench of the overriding legal assurance of an open courtroom.
That, again, is the central tenet of our complaint about Judge Piampiano’s actions and inactions in this case: Public access to the courtroom has been well entrenched in American law. The media is typically viewed as the portal for the public. Yes, a judge does have tremendous discretion in ensuring that a certain decorum and orderliness is maintained, but, ultimately, the courtroom does not belong to the judge.
The courtroom belongs to the public, a fact Judge Piampiano clearly ignored in this instance.
ATTACHMENT(1!
N.Y. CPL. LAW § 270.50 : NY Code - Section 270.50: Trial jury; viewing of premises Search N.Y. CPL. LAW § 270.50 : NY Code - Section 270.50: Trial jury; viewing of premises
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0 50 1. When the court is of the opinion that a viewing or observation by the jury of the premises or place where an offense on trial was allegedly committed, or of any other premises or place involved in the case, will be helpful to the jury in determining any material factual issue, it may in its discretion, at any time before the commencement of the summations, order that the jury be conducted to such premises or place for such purpose in accordance with the provisions of this section. 2. In such case, the jury must be kept together throughout under the supervision of an appropriate public servant or servants appointed by the court, and the court itself must be present throughout. The prosecutor, the defendant and counsel for the defendant may as a matter of right be present throughout, but such right may be waived. 3. The purpose of such an inspection is solely to permit visual observation by the jury of the premises or place in question, and neither the court, the parties, counsel nor the jurors may engage in discussion or argumentation concerning the significance or implications of anything under observation or concerning any issue in the case. - See more at: http://codes.lp.findlaw.com/nycode/CPL/TWO/J/270/270.50#sthash.MokKeuaq.dpuf
ATTACHMENT #2
From: Sean Carroll Sent: Monday, September 28, 2015 7:25 AM To: James (Ast, Mary) Piampiano; James (Ast, Mary) Piampiano; Craig Doran Cc: Jane Flasch; Brian Houseman; Matt E Malyn Subject: Request: People v. Tan
From: Sean Carroll Sent: Monday, September 28, 2015 9:08 AM To: Sean Carroll Cc: James (Ast, Mary) Piampiano; James (Ast, Mary) Piampiano; Craig Doran; Jane Flasch; Brian Houseman; Matt E Malyn Subject: Re: Request: People v. Tan
No one is to be within 300 feet of this house. #tantrial Jon Hand @jonhand1 Sep 28 Piampiano addressing media issues now. #tantrial
Jon Hand @jonhand1 Sep 28 No images of jurors. #tantrial
Jon Hand @jonhand1 Sep 28
I asked for time to get our layer to address this issue. Judge said no. #tantrial
Jon Hand @jonhand1 Sep 28
When tried to clarify judge said he would not accept questions from the audience. "This is not
a press conference." #tantrial
Jon Hand @jonhand1 Sep 28 I mentioned to court deputy to whom I spoke judge's comments didn't reflect my request. He acknowledged: "I can only pass along the request"
Jon Hand @jonhand1 Sep 28
The judge didn't let me make the request directly, I had to pass a message through a court
deputy. I've never had to before. #tantrial
Jon Hand @jonhand1 Sep 28 Judge giving instructions to the jury. Discuss nothing about this case. #tantrial
Jon Hand @jonhand1 Sep 28
Denying media/public access to the proceeding of the court. #tantrial
LAST TWEET: 10:27 AM - 28 Sep 2015
ATTACHMENT #5
From: Sean Carroll Sent: Monday, September 28, 2015 10:33 AM Cc: James (Ast, Mary) Piampiano; James (Ast, Mary) Piampiano; Craig Doran; Jane Flasch; Brian Houseman; Matt E Malyn Subject: RE: Request: People v. Tan
Could we please be provided a copy of Judge Piampiano’s written order as to instructions for this visit?
Our legal team wishes to review it as soon as possible and our news team wishes to know the specifics of this order so that we can legally comply.
