After a daylong seesaw legal battle, CBS’ ‘Brooklyn DA’ will air as scheduled on Tuesday evening at 10 p.m.
Justice Paul Wooten, after approximately two hours of testimony from two senior producers at CBS, had heard enough. After taking a short break, Wooten returned to the bench and denied a motion seeking to defer the start of the six-week series on Hynes and his office until after the Democratic primary on Sept. 10. In a brief oral statement, Wooten said that there was not enough evidence for him to conclude that there was a reasonable likelihood of success on the motion to preliminarily enjoin the series.
At a court conference a day earlier, Wooten had said that the hearing might extend to Tuesday, the day the show was set to be aired.
Sonya McNair, a spokesperson for CBS News, issued a statement, saying, “We are pleased with today’s decision and look forward to bringing viewers the compelling documentary series ‘Brooklyn DA.”
Aaron M. Rubin, the attorney for Abraham George who is seeking to challenge Brooklyn’s six-term District Attorney Charles J. Hynes in the September primary, said his client is weighing his options.
No subpoenas were required for the testimony of the two CBS producers—Susan Zirinsky and Patti Aronofsky. But, court ordered subpoenas were necessary to compel the testimony of the three persons at the District Attorney’s Office who had direct dealings with Zirinsky and Aronofsky: Hynes, Michael Vecchione, the chief of the rackets bureau, and Jerry Schmetterer, Hynes’ director of communication. Apparently through a mix up, the subpoenas were never signed.
Wooten had pointed out, during arguments Thursday over the scheduling of the hearing that Hynes had never been served in his capacity as District Attorney. As a consequence, in the absence of a court-ordered subpoena, neither Hynes nor his subordinates could be compelled to testify.
Also, during arguments on Thursday, David Schulz, of Levine Sullivan Koch & Schulz, who represented CBS, had said that Wooten’s order requiring CBS to make available all email correspondence between CBS and Hynes office could well entail the office’s examining “thousands and thousands” of emails to determine if they were exempt from disclosure because of the reporters’ privilege. Only a tiny fraction—15 pages—were delivered to Rubin prior to the start of the hearing, with CBS apparently claiming privilege to the balance.
On Friday morning, First Department Justice Angela M. Mazzarelli denied CBS’ motion to stay Wooten’s order for the hearing.
In asking that the series be enjoined, George claimed that the show would be an “infomercial ” for Hynes and the series’ six hours of free airtime should be treated as an in-kind contribution to his 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 focused upon whether the CBS series was produced independently of the Hynes’ campaign.
—Hella Winston, an investigative reporter who has done extensive work for the NY Jewish Week, assisted in the reporting of this article.