Leaked Documents and Loose Lips

James A. Cohen and Daniel Capra in Brooklyn Daily Eagle, August 16, 2011

Media Source

By Cynthia Magnus
Special to the Eagle

BROOKLYN — One of the two mishaps that occurred last week in the Levi Aron murder case involved an interview Aron gave at Rikers Island to a reporter from the Daily News for a story it ran on Friday. Aron stands indicted for the July murder of Borough Park boy Leiby Kletzky.

Aron was declared competent to stand trial prior to his Aug. 4 arraignment before Kings County Supreme Court Justice Neil Jon Firetog. Aron’s defense attorney Jennifer McCann told this reporter that, “No one permitted this interview. It was not approved.”

But there were no barriers in place to prevent such a visit.

Department of Correction (DOC) spokeswoman Sharman Stein said, “Anybody can go to Rikers Island, give their name, and request to see an inmate. If the inmate agrees, you can have the interview.”

Stein said that the DOC, as a courtesy in cases where inmates are well known, offers attorneys an opportunity to provide the department with a list of approved visitors.

“In that case,” said Stein, “the department will not allow anyone who is not on the list to visit with the inmate.” Any inmate can supply an approved-visitor list, but in high profile cases, the DOC may remind an inmate’s defense counsel of this privilege at the initial time of incarceration.

McCann, who joined Aron’s original defense attorney Pierre Bazile 10 days after Aron was taken into custody, said she doesn’t ever let her clients talk to the press. She told reporters in an indignant email on Friday that Aron, “was clearly unable even to follow the direction of his attorneys not to speak to the press. He was not fit to consent to an interview.”

Stein said that when reporters proceed as the Daily News journalist did, “they are essentially circumventing an approved and established procedure for press interviews.”

“That procedure is to have an attorney and inmate agree to an interview,” said Stein, “to send a signed document to that effect to the DOC Department of Information, and to have us set up the approved press interview.” Stein said, “If [Daily News reporter Reuven] Blau had adhered to that procedure, the attorney presumably would not have agreed to the interview.”

Ruth Hochberger, professor of media and ethics at both the NYU and CUNY graduate schools of journalism, and a former Manhattan Legal Aid defense attorney, said, “If his lawyer didn’t safeguard him and he didn’t know enough to say ‘no,’ then the journalist didn’t transgress.” Hochberger said, “I do believe, though, that a reporter has to impose a more careful standard when dealing with an interview subject who is not savvy with the press.”

Stein said, “It is not our responsibility at DOC to determine which visitors inmates can have. It is our responsibility to make sure inmates are safe and secure while incarcerated. It is the responsibility of inmates and their attorneys to determine who they should or should not speak with and accept visits from.” Stein said that the DOC was given a list of approved visitors on Friday.

When asked by email if he had supplied the DOC with an approved-visitor list when Aron was first remanded to custody on July 13, Bazile replied, “No comment.”

The case took a curve earlier last week when details of Aron’s court-ordered psychiatric report were released by The Associated Press. McCann, who said the AP’s spokeswoman refused to name the source, said, “Whoever gave this information up violated the law and should be prosecuted.”

A spokesman for the NYS Mental Hygiene Legal Service said that, “It would be improper for that information to get out inasmuch as it was kept apart from the public file.” He said the disclosure of the report could be a violation of federal HIPAA rules, state Mental Hygiene Law, state Public Health Law, and the Constitutional right to privacy.

On journalistic ethics, Hochberger said that the AP’s use of the report is justified if it came unsolicited. “It’s a different question if they were implicated in getting the report,” she said. On the publicizing of private health information that is part of an open court case, Hochberger said, “It’s a decision a journalist in consultation with their editor has to answer for themselves.”

Fordham law professor and trial lawyer James A. Cohen, who teaches ethics, as well as a class on psychology and criminal law, said, “There are a variety of statutes on the books that make the unauthorized disclosure of health records illegal.” He said of the leak of the confidential record, “We should be pursuing it. It’s offensive.”

McCann who has concerns about a tainted jury pool, said the defense will likely request a change of venue. Earlier this month the defense had been upset by the posting of Aron’s alleged handwritten confession on the state court system’s official website.

In her Facebook comments on the case, McCann wrote, “Presumption of innocence is maintained until a jury convicts or until a judge accepts a guilty plea. Confessions are evidence of guilt, but they are not guilty pleas.”

Fordham University Law School professor Daniel Capra, whose expertise includes criminal procedure and evidence said, “The laws on pretrial publicity and prejudice are in place, and so the issue is not whether there has been a disclosure, but how important the disclosure is, whether the judge can instruct, and voir dire.”

Court spokesman David Bookstaver said, “It’s good fodder for the press. It’s brinksmanship for those who think they’re accomplishing something by leaking the document.” But he said, “The court will be cautioning all the parties in the near future and reminding them to comport themselves in a professional manner going forward.”