The criminal case is over, and federal prosecutors say they have no problem with the public seeing video of a defendant's brutal mistreatment inside the City of Buffalo cell block.
But for a second time, a judge has decided Mayor Byron W. Brown may conceal the government record that shows one of his employees inflicting bloody punishment and two of his police officers doing nothing to stop it.
Brown's lawyers argued, among other things, that public release of the video could sway potential jurors in the lawsuit that victim Shaun Porter filed against City Hall.
State Supreme Court Justice Tracey A. Bannister, who is presiding over the matter, agreed with the mayor's team in a court hearing Wednesday.
Saying she's worried about pretrial publicity for the civil trial, Bannister said the video will not be released until a jury is empaneled in Porter vs. City of Buffalo. Then it will likely become public when presented as evidence during the trial, she said.
"This is exactly the kind of issue that should be front and center," said Joseph M. Finnerty, a lawyer for The Buffalo News, which filed a Freedom of Information Law request for the video in 2016. The mayor, through his aides, has fended off the request ever since.
When The News went to court, Bannister first ruled in February that release of the video could hinder the criminal trial of cell block attendant Matthew Jaskula, who began a series of abusive acts against Porter by shoving him to the floor while handcuffed on May 19, 2016.
But the need for a federal trial ended when Jaskula pleaded guilty in May of this year. The federal prosecutor then said the U.S. Attorney's Office no longer objected to the public seeing the video, so The News asked Bannister to reconsider. The newspaper was joined by WKBW-TV, which also had filed a Freedom of Information request seeking the record.
Lawyers for the newspaper and television station on Wednesday said the public has a right to see video that was financed with tax dollars, shows the functioning of a facility financed with tax dollars and documents the mistreatment of a member of the public.
Finnerty told the judge that every day that goes by in which the public and the media do not have the material is a continuing violation of their First Amendment rights as well as their rights under the Freedom of Information Law.
When the judge spoke of her concerns about empaneling a jury in a civil trial, Finnerty countered that she can ensure an impartial jury by exercising control over the selection process.
Still, Bannister again rested on her concerns about pretrial publicity in the civil matter, even though such cases are frequently settled before trial.
She then added a second concern: Release of the video could be traumatic for the victim. It's another argument that The News and WKBW would have to deal with if they appeal.
The News had set the wheels in motion for an appeal after Bannister's first ruling in February. But the newspaper did not push the matter at the time because it was unlikely an appeal would be decided before Jaskula's federal court trial, which had been set for June.
While the newspaper and the television station have not yet decided whether to appeal Bannister's second decision, they have asked for a transcript of Wednesday's arguments, a necessary first step, Finnerty said.
The most complete description of the video comes from an FBI Agent's affidavit. It was prepared to support the federal civil rights charges against Jaskula.
Agent Jennifer Amo wrote that Porter showed no resistance as he was being booked into the city's cell block after a domestic incident. But after Porter said something to Jaskula over his shoulder — apparently that he wanted a lawyer — Jaskula shoved Porter into a door and then to the floor. The defendant's face reportedly hit a shelf as fell.
Jaskula, according to Amo's affidavit, then dragged the victim by the arms to a cell, and his face hit a door frame during the journey. All the while, Porter "does not, and appears incapable of, offering any physical resistance," she wrote.
Two police officers – Joshua T. Craig and Anthony J. D'Agostino – do not intervene. Both are named as defendants in the lawsuit.
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.
The Brown team had little to say when asked to comment about Bannister's ruling Wednesday. Brown is seeking his fourth term as mayor in the Democratic primary.
"The city does not comment on pending litigation," said spokesman Michael DeGeorge, "except to say that it will abide by the court's decision."