When a Buffalo cell-block attendant beat a defendant back in May, as two city police officers stood by, surveillance cameras recorded the attack. Months later, the video has been seen by only a select few.
A state judge recently ruled the video should remain hidden from public view, at least until the cell-block attendant's criminal trial concludes.
"Until the criminal trial is over, certainly, I wouldn't permit or order the dissemination of the videotape," Supreme Court Justice Tracey A. Bannister said in rejecting arguments by a Buffalo News lawyer that the video should be publicly available.
The newspaper's lawyer, Joseph M. Finnerty, had told her the tape is "of the utmost public interest," especially during the ongoing national dialogue about police mistreatment of minority defendants. New York's Freedom of Information Law requires Mayor Byron W. Brown's police commissioner to let the public see the video, Finnerty said.
Fair trial concerns were not the chief reason why City Hall wants the video concealed. City lawyers say it's a record of the job performance of a corrections officer, one set of uniformed employees whose personnel files are protected by state law. Early on, the judge asked Finnerty to train his comments on that point.
But the judge never did rule on whether the video is a personnel record. She said she couldn't release the video because it could influence potential jurors.
"When we have a chance to prevent a video from infecting a jury pool, we should," she said.
The News is considering an appeal.
"When officials are accused of misconduct, the public should know what happened – good, bad or ugly," said Buffalo News Editor Mike Connelly. "Openness ensures misconduct won't be covered up, and it builds public trust." The News will keep fighting to make the video public, he said.
Along with the decision to appeal are timing issues. The process of turning to a higher court could take months. But the video could enter the public arena if played, as expected, during the criminal trial. Jury selection is scheduled for June 20.
According to an FBI affidavit, the video shows a docile defendant -- who had just asked for a lawyer -- being shoved through a door, tossed to the floor and dragged to an open cell with a trail of blood in his wake. Two police officers visible in the footage do not intervene. The victim remains largely motionless as blood pools underneath him. Some 90 minutes pass before he is brought to a hospital for treatment.
At this point, the video has been seen only by certain police officials and the various parties preparing for the federal court trial of Matthew Jaskula, the cell-block attendant accused in the attack. But its contents, as described in the FBI document, have been detailed in myriad news accounts. Finnerty doubted that Jaskula's right to a fair trial would be jeopardized if the public saw the event as it unfolded.
"History is replete with cases in which juries have been seated and impaneled despite mountains of pretrial publicity," he told the judge.
When attorneys gathered before Bannister days ago, the mayor's representatives agreed with the need to limit pretrial publicity. But Brown's lawyer focused most intently on a section of state law that keeps secret records used to evaluate the performance of most uniformed government employees, including police and corrections officers. City Hall lawyers consider the video one such record.
Said the city's Maeve E. Huggins: "Without consent of police officers, corrections officers, etc., or a lawful court order, our agency is unable to release anything that is a confidential personnel record."
When pressed by the judge, Huggins insisted the video is a personnel document.
"The video in question here is something that was created to evaluate the employees that were captured on it."
Over the years, the state law has been increasingly cited to conceal records kept through the ordinary course of business that could illuminate police misconduct. The head of New York's Committee on Open Government, Robert Freeman, has lamented that government officials – those in law enforcement – are protected from public scrutiny like few other public workers. The committee stated in an advisory opinion that the public has a right to Buffalo's cell-block video.
Teaming with City Hall to suppress the video was Richard S. Binko, a lawyer for the victim of the attack, Shaun Porter. Porter was 37 and had just been arrested in a domestic violence matter when injured in the beating. At one time, Binko demanded that city officials make the video public.
“In totalitarian states or repressive societies, beatings in police stations are routine, and in our country they are the rare exception," Binko said last June. "... By publicizing them, it puts pressure on those in charge to make sure it doesn’t happen again. The public has a right to see the videos.”
Binko, however, now has a copy of the video for the civil lawsuit against the city and its employees, including the two police officers who are described as having done nothing to stop the beating, Joshua Craig and Anthony D'Agostino.
Binko told Bannister that his client, who has undergone treatment for post-traumatic stress disorder, should not have to see the images displayed in public.
"I don't know if you have seen this tape," Binko told the judge. "This tape is brutal."
As described in an affidavit by FBI Agent Jennifer Amo, Porter shows no resistance as he is being booked into the city's cell block. But after Porter says something to Jaskula over his shoulder — apparently that he wanted a lawyer — Jaskula shoved Porter through a doorway, and Porter hit his face on a shelf as he tumbled to the floor.
Jaskula, according to Amo's affidavit, then dragged the victim by the arms to a cell. All the while, he "does not, and appears incapable of, offering any physical resistance," she wrote.
Porter was placed in a restraint chair. With blood pooling underneath him, Jaskula considered getting him some medical attention, Amo indicated. Jaskula went to tell the two lieutenants in charge that patrol officers had brought in a defendant with a bloody nose. When told that the arresting officers should bring the man to a hospital, Jaskula responded that the bleeding had stopped and the defendant was refusing treatment, court records say.
Some 90 minutes later, however, another attendant told a lieutenant that Porter was complaining of chest pain. He was soon treated at Erie County Medical Center for a broken nose, and sutures were applied to a cut near his right eye, the affidavit says.
While Bannister stressed her concern about Jaskula's criminal trial, she held out the possibility she might block the video from being released for a civil trial as well, if it isn't circulating by then.
"I'm not making any ruling on whether this is a personnel record," she told Finnerty. "... But for the sake of a fair criminal trial and a fair civil trial and untainted jury pool, to the best that we can keep them from being tainted prior to trial, I am going to deny your request."