‘Brooklyn DA’ Hearing Is Underway After Appeals Judge Refuses to Block It

An appeals judge in Manhattan this morning rebuffed CBS’ bid to block a hearing into how much control the Brooklyn District Attorney’s Office exercised over CBS’ production of a six-episode series on the office, called “Brooklyn DA.”

The hearing started this afternoon at 2 p.m. as ordered late yesterday by Justice Paul Wooten, who sits in Manhattan.  Judge Wooten also required CBS to produce all email correspondence it had with the Brooklyn office relating to the production of the series. It is expected that two of CBS senior producers in charge of the show—Susan Zirinsky and Patti Aronofsky will testify. Click here to read yesterday’s article about Wooten’s order for a hearing and discovery.

Justice Angela Mazzarelli denied CBS request for a stay of the hearing, telling the parties that Wooten had not issued an appealable order.

CBS’ lawyer, David A. Schulz, objected strenuously to Mazzarelli’s refusal to intervene saying that CBS is being “threatened with the possibility that an important news show may be enjoined” and “we may be forced to ignore a court order or have our constitutional rights violated.”

CBS added to its legal firepower at the Appellate Division yesterday, bringing aboard Israel Rubin, a former justice of that court. Rubin handled part of the argument and pointed out to Mazzarelli that Wooten had sought to challenge Hynes in 2005. Wooten, however, dropped out prior to the primary.

The case before Wooten was brought by one of Hynes’ challengers, Abraham George, a former prosecutor in the Manhattan District Attorney’s Office.  George claims that the show will be an “infomercial ” for Hynes and the series’ six hours of free airtime should be treated as an in-kind contribution to Hynes’ campaign. Under state law, corporations are limited to donations of $5,000. But the U.S Supreme Court’s 2010 ruling Citizens United v. FCC, 558 U.S. 310 permits corporations to buy unlimited amounts of airtime boosting a candidate as long as the ad buys are “independent” of the candidate’s campaign.

This afternoon’s hearing, which is expected to continue on Tuesday, May 28, is examining whether the CBS series was produced independently of the Hynes campaign. In an affidavit filed in the case last week, Hynes’ chief press officer, Jerry Schmetterer, disclosed that he and Michael Vecchione, the chief of the office’s rackets division, agreed to guidelines for the production of the series after “much discussion” with Aronofsky and Zirinsky, senior producers at CBS.

The first of four guidelines listed by Schmeltzer states that CBS has full editorial control and the DA’s office none “whatsoever.”

From comments Wooten made at yesterday afternoon’s court conference, it appears that he wants to give George and his attorney, Aaron M. Rubin, an opportunity to test that proposition. Wooten defined the issues before him as relating to “production, promotion” of the series.

Other remarks Wooten made at yesterday’s conference, according to a court transcript, send different signals as to how he views the hearing. At one moment he emphasized that, in ordering the hearing, he was trying to protect the record on appeal, and at another he indicated that the issue was serious enough that he might delay the start of the series for a week if Schulz needed more time to prepare for the hearing.

Other Questions Raised about Control

Meanwhile, other issues have surfaced in the last two weeks, which raise further questions about the extent of the Brooklyn office’s involvement in the production of the show.

A week ago, the office came under fire from a well-known criminal defense lawyer, Gerald L. Shargel, who accused the office of a “shocking” breach of ethics rules regulating pretrial publicity in a case he is handling. In a letter to the judge presiding over the arson case, in which five persons in a Bensonhurst tenement died, Shargel asserted that prosecutors met with, and “prep[ped],” witnesses. In the May 15 letter, Shargel advised Acting Justice Danny K. Chun that he found out about the filming when producers of the series contacted him about their work on the series, and that the account had been confirmed by the lead prosecutor on the case, Assistant District Attorney Lawrence Oh. That conversation was recorded, Shargel stated. Click here to read the Shargel letter.

The Brooklyn office beat a hasty retreat at a court conference the next day. Oh informed Chun that CBS had decided not air any material about the arson case, making the issue moot. That scenario raises a question as to whether CBS or Hynes’ office made the decision not to include any reference to Shargel’s case. Shargel’s charges of  violations of the New York Rules of Professional Conduct were aimed solely at the District Attorney’s Office, not CBS.

The Shargel letter also undercut one of the ground rules that Schmetterer listed in his affidavit.

That guideline stipulates that the Brooklyn office would not “assist in arranging any interviews with witnesses.” How does that account square with Shargel’s assertion that CBS crews filmed prosecutors meeting with witnesses. How did CBS know about the interview sessions? Were they held in the District Attorney’s offices? How did CBS know when and where the interviews would take place?

Shargel’s account may not be accurate, but the fact that he claims to have ADA Oh’s confirmation on tape gives it credibility.

No response was received to requests for comment direct to both  to the District Attorney’s Office and and Hynes’ campaign.

Schmetterers’ affidavit offers other examples of extraordinary access being provided to CBS. Its reporters are being allowed into prosecutors’ homes because the series’ “concept” is to provide the public with a full picture of who the prosecutors are, both inside and outside the workplace, Schmetterer explained in the affidavit. Normally, the home addresses of prosecutors are closely guarded secrets to insure that prosecutors and their families are shielded from harm, and CBS has promised to protect that information.

Also according to the affidavit, the office afforded CBS access to an undercover sting operation that resulted in the arrest of a house painter for the theft of a Picasso and other artwork from an estate in Kings Point, L.I. In a promo for the series, released by CBS yesterday, Oh, who apparently is the lead prosecutor, is shown stating that we are planning a sting and “somewhat close to a take down.” There is a shot of a tiny camera being held in someone’s hand and a shots of someone with a screwdriver. It is unclear whether the visuals show the actual installment of the device or are a staged re-enactment.

—Hella Winston, an investigative reporter who has done extensive work for the NY Jewish Week, assisted in the reporting of this article.

 

©DanielJWise2013

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