Constitutional Law

Mass. judges agree to bar courtroom photos of suspects

By By The Associated Press

BOSTON &151; For years, suspects in criminal cases in Massachusetts have shielded themselves from courtroom cameras by pulling hoods over their heads or positioning themselves in courthouse nooks where they can't be seen.

But lately, defense lawyers have been taking it a step further. Four times last month, judges agreed to prohibit the news media from photographing suspects in murder cases, citing possible identification issues if potential witnesses were to see the photos.

The rulings have sometimes been made over the objections of the news media and after the defendants' photos already have appeared in some newspapers or online.

Two suspects charged in the killings of four people in Boston's Mattapan neighborhood ? including a 2-year-old boy and his mother ? have won orders prohibiting the press from photographing them at their arraignments.

John Amabile, a lawyer who represents one of the men, Dwayne Moore, argued that allowing the news media to photograph Moore at his arraignment and disseminate his photo could subject eyewitnesses to "an unduly suggestive identification process" that could lead to a witness mistakenly identifying him as one of those responsible for the killings.

"It's not just the photo, but it's the manner in which it's presented, namely a single image is presented along with an assertion that this is the perpetrator," said Amabile.

"I'm not trying to hide the guy, nor is he trying to hide. But what you want to avoid is having the TV do what the police would undeniably be prohibited from doing, which is to present a single person to a witness in a form that is unbelievably suggestive."

A judge granted Amabile's request to prohibit the news media from photographing Moore during his Superior Court arraignment. After that ruling, a clerk magistrate granted a similar motion from Edward Washington, a co-defendant in the Mattapan shootings.

A judge in Springfield last month also allowed a motion filed jointly by the defense and prosecutors in the case of Jerel Brunson, an 18-year-old accused in a fatal drug-related shooting. Another judge granted a motion prohibiting the press from photographing a 20-year-old Lynn man during his trial in a fatal drive-by shooting.

Jeffrey Karp, a lawyer for Jose Cabrera, said only one witness had identified Cabrera as the shooter by the start of the trial. He argued that allowing the news media to take photographs of Cabrera during the trial could influence other potential witnesses.

"A photograph of a person on trial is suggestive," Karp said. "It subconsciously or consciously plants a seed in the brain of somebody who was at the shooting."

In Massachusetts, cameras are allowed in courtrooms under a rule established by the Supreme Judicial Court. The rule allows judges to prohibit cameras at some court hearings and to limit them in certain circumstances, including if it appears that "such coverage will create a substantial likelihood of harm" to anyone.

Elizabeth Ritvo, a Boston attorney who represents news-media outlets in First Amendment cases, says that under the SJC's rule, there is a strong presumption that cameras are allowed, but in cases where there is substantial risk of harm, judges balance the rights of the defendant with the rights of the public and the news media.

"Although there's not an absolute right to have cameras in the courtroom, in order to protect these important public interests, the threshold should be high before cameras are barred," she said.

Sometimes prosecutors don't object to defense motions to bar photographs of the defendant.

Hampden County District Attorney Mark Mastroianni said he joined the defense motion in the Brunson case because police were still actively trying to identify eyewitnesses and to show them a photo array.

"What will happen is that oftentimes a defendant challenges a photo array by asserting that the procedure became suggestive by the defendant's photo being published everywhere ? therefore somebody picked it out because it was all over the newspaper for three days," he said.

"Our position was that it was important to allow the police to conduct the identification part of their investigation without having to worry about that becoming an issue."

Some judges, however, have rejected attempts to shield suspects from cameras.

When three people were arraigned in the killing of a pizza deliveryman in Boston in September, Judge Kathleen Coffey denied a defense request to allow the suspects to wait in a courtroom hallway where they could hear the proceedings but not be seen by the public or photographed by the press. The courtroom was filled with relatives and friends of Richel Nova, who prosecutors said was lured into an abandoned house, robbed and stabbed to death.

Attorney Steven Sack, who represented one of the suspects, said judges routinely allow defendants to stand just outside the courtroom when there could be identification issues.

"Why put an identification in a murder case in jeopardy?" Sack said.

"Sometimes the First Amendment is trumped by the defendant's right to a fair trial."

Full post as published by First Amendment Center on February 02, 2011 (boomark / email).