Federal Judge Halts Camera-Monitoring of Attorney/Client Communications in Staten Island

Federal Judge George Daniels ruled that continuous camera monitoring of attorney-client communications in the pre-arraignment rooms in the new Staten Island courthouse must stop. Tina Luongo, the Attorney-in-Charge of the Criminal Practice, that "we are extremely pleased that the Court granted our preliminary injunction and ordered the City to stop continuously videoing and monitoring our interviews with our clients in the new Staten Island court house. The constitutional right to a private conversation with your attorney should never be interfered with."

New York Law Journal
Judge Halts Continuous Video in Staten Island Courts
Mark Hamblett
October 21, 2015

Continuous camera monitoring of attorney-client communications in pre-arraignment rooms at the new state courthouse on Staten Island has been blocked by a federal judge.

Less than a month after the $230 million courthouse opened, Southern District Judge George Daniels Tuesday agreed that the constant running of video monitors, installed in four pre-arraignment meeting rooms for safety reasons, are contrary to the terms of a 1999 settlement agreement between the Legal Aid Society and the city, and "likely violative of the Sixth Amendment" right to counsel.

The judge's ruling came at the end of a contentious two-hour hearing in which Daniels and Law Department Senior Counsel Janice Birnbaum sparred over the meaning of the city's commitment in the 1999 settlement to ensure "private consultations" for attorneys and criminal defendants and whether the cameras violated that promise.

The cameras do not record sound, but they do record continuous images of the attorney and client, including any visual gestures that a just-arrested defendant may make in describing the alleged incident. Tapes of the meetings are kept for at least 90 days, and lawyers with the Legal Aid Society and co-counsel at White & Case say the tapes could be used to incriminate a defendant.

Birnbaum said the monitoring is no different from court officers looking at an attorney and her client through a window into the room, which they may do. She said the definition of "private consultation" is less expansive than that argued by the plaintiffs in the 1992 case of Grubb v. Safir, 92-cv-2132.

"The rule is you can't pass the information on to prosecutors," Birnbaum said.

"I can't accept your argument," Daniels said, "whether private consultation is defined by whether the information gets back to the prosecutor."

When Birnbaum said the issue was about interference with the attorney-client relationship, Daniels exclaimed, "No—the question is whether this visual monitoring is interfering with the private consultation!"

The plaintiffs are represented by William Gibney and Cynthia Conti-Cook of The Legal Aid Society, and pro bono counsel from White & Case including partner Gregory Little and associates Colin West and Joshua Elmore.

West argued for the plaintiffs, telling Daniels, "There are no such cameras in any other courthouses in any other borough in New York City."

"These cameras record every movement, every gesture, every reaction," West noted, and said footage taken from the meeting rooms "could severely prejudice a criminal case."

In papers filed with Daniels opposing the motion for a preliminary injunction, Assistant Corporation Counsel Martin Bowe said "In this case, defendants provide appropriate and private attorney-client rooms at the Richmond County Courthouse, including video surveillance for the safety of all detainees. It is a far cry from the stark conditions alleged to exist over 20 years ago in the former facility."

Bowe also said that state law recognizes the "important distinction between listening to actual attorney-client communications, which would clearly risk the disclosure of specific confidential information, versus visually monitoring an attorney-client meeting for the purpose of maintaining safety and security."

But in their papers, the attorneys for the plaintiffs say the plain meaning of the 1999 settlement agreement overseen by then-Southern District Judge Denny Chin was being violated.

"Essentially, the city contends that the settlement order applies only to the specific privacy violations that existed in the 1990s, and that the city is otherwise free under the settlement order to violate attorney-client privacy, bound only by the limits of its creativity."

See the motion, the city's response, and the plaintiffs' reply.

In the end, Daniels agreed that the continuous monitoring could have an "inhibiting" impact on a defendant's willingness to discuss his case freely with his attorney.

The judge said the injunction would stand unless the city can develop a procedure that would satisfy the terms of the settlement and comply with the Sixth Amendment.

Law Department spokesman Nicholas Paolucci said the city is evaluating its options.