December 3rd, 2018
By Frank Donnelly
The Legal Aid Society claimed victory Monday in an appellate court’s ruling ordering a federal judge to consider the potential “chilling effect” the use of surveillance cameras in attorney-client interview rooms at the Staten Island Courthouse could have on those parties’ conversations.
“Today’s ruling is a victory for the Sixth Amendment and a victory for due process,” said Tina Luongo, Legal Aid’s attorney-in-charge of the criminal practice. “Our clients are entitled to meet with their attorneys in private – a fundamental part of the right to counsel. We look forward to arguing the merits of this Sixth Amendment chilling effect on our client’s right to speak freely with counsel and call on the city to terminate this practice on Staten Island and elsewhere in the interim.”
In February, a Manhattan federal court judge had dissolved a preliminary injunction and temporary restraining order prohibiting the use of the cameras in pre-arraignment interview rooms at the courthouse.
The appellate court instructed the judge to rehear the case and weigh the impact the cameras could have on a defendant’s right to counsel.
“The district court did not appropriately consider the chilling effect that the cameras’ presence in the attorney-client booths could have on pre-arraignment detainees’ willingness to communicate candidly with their attorneys,” the appellate court opined.
The Legal Aid Society, which represents the majority of criminal defendants in the borough, had sued the city, the Correction Department and the NYPD in Manhattan federal court over the cameras’ use at the courthouse after it opened St. George in September 2015.
A preliminary injunction was ordered shortly thereafter preventing the cameras from operating.
Legal Aid maintains that the cameras in the pre-arraignment interview rooms hinder their clients’ ability to speak frankly with their lawyers.
Attorneys said the initial arraignment interview at the courthouse is where criminal defendants first meet their attorneys and form the basis of the lawyer-client relationship.
That session allows lawyers to explore investigative leads, assess the client's mental health and develop information to make a bail request.
The city and Correction Department contended the cameras were necessary for security purposes and to respond to emergencies.
While the parties attempted to reach a more permanent solution after the preliminary injunction was issued, the city and Correction Department experimented with “masking” technology in the interview rooms, said the appellate ruling.
Under the “masking” technology, cameras only viewed detainees and not lawyers. The cameras’ audio function also was disabled.
The city maintained detainees were warned by notices in interview rooms that cameras only recorded visual images and did not capture sound, the ruling said.
But Legal Aid contended the recording of those conversations, even just visually, potentially impedes open and frank talks between defendants and attorneys.
Lawyers fear discussions could be lip-read and used against clients. Videotape would also reveal body markings a client shows an attorney in confidence.
“We’re very pleased with the Second Circuit’s decision, which affirms the constitutional right of individuals accused of a crime to speak candidly with their attorneys,” said Colin West, associate at the law firm White & Case, which announced the ruling along with the Legal Aid Society. “The Second Circuit appropriately recognized that the presence of surveillance cameras may impede that right because detained individuals may fear that their conversations are being monitored and recorded.
While the appellate court ruling doesn’t specifically say the cameras violate detainees’ Sixth Amendment rights, it does instruct the district court to weigh the cameras’ potential impact on free discourse between attorneys and their clients balanced against the city and Correction’s security concerns.
Legal Aid said it intends to confirm the cameras have been turned off in view of the appellate ruling.
However, a source with knowledge of the case said the ruling doesn’t explicitly address whether the cameras can continue to record while the matter is being reconsidered.
Nick Paolucci, a city Law Department spokesman, said the city thinks it is on solid legal ground.
“We believe the current camera setup appropriately balances (Correction’s) security concerns with detainees’ Sixth Amendment rights, and that the district court will adhere to its determination that (Correction’s) use of the cameras complies with the law,” said Paolucci.