Press’s Use of Roger Corbin’s Perp Walk Photos Protected Under the First Amendment

Roger Corbin, a Nassau County Legislator has failed in his attempt to enjoin Newsday and and News 12 from issuing press releases, mug shots, and “perp walk” photos of himself in handcuffs.  The court also denied his motion to enjoin the government from staging perp walks and releasing information other than “pedigree information.”  Several other motions were also denied.  U.S. v. Corbin, 2009 WL 1532021 (E.D.N.Y.).

Background

Since 1995, Roger Corbin has been a Nassau County Legislator for the Second Legislative District of Nassau County.

On May 5, 2009, Corbin was charged with tax evasion and lying to federal officers over $226,000 deposited in his bank account in his name.  Corbin recieved the funds in the form of 82 checks from a New York Real Estate Developer.

On May 20, 2009, Roger Corbin, by an order to show cause, petitioned to the court to preclude certain media outlets from publishing photographs of his arrest and subsequent transport in handcuffs.  He also moved to stop the U.S. Government from staging “perp walks” of criminal defendants (a “perp walk” is essentially when law enforcement handcuff an accused defendant to transport him or her from one facility to another).

The Court’s Decision

(I will provide a more detailed analysis later.  This is a summary of the court’s reasoning)

The court noted the tension between first amendment freedoms and a defendant’s right to an impartial jury.  By exercising their first amendment rights, the press could prejudice a potential jury against the defendant.

In this situation, the court weighs three factors:

(1) the nature and extent of pretrial news coverage;
(2) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and
(3) how effectively a restraining order would operate to prevent the threatened danger.

Here the court found that Corbin’s right to an impartial jury was adequately protected.

The court found, that because New York is a large metropolitan area, there was less of a risk of prejudicing potential jurors: “courts have long held that in a large metropolitan area, prejudicial publicity is less likely to endanger a defendant’s right to a fair trial.”

The court also found that the publicity  “has not been ubiquitous” noting that “[b]y defense counsel’s own account, the matter has not been widely publicized by other local news sources, such as the New York Times, the New York Post, and the New York Daily News, to name the major other newspapers.”

In addition, it would be another six months before the jury would be selected, and by that time memory of the pictures would not be as strong.  “Both the Supreme Court and this court have indicated that the length of time between the publication of adverse publicity and the empanelling of the jury is a significant factor in assessing claims of prejudice resulting from pre-trial publicity.”

The court also has protections in place, such as voir dire, to select impartial jurors.

Ultimately, the court held:

Although the Court is troubled by the repeated use of images of Corbin in handcuffs despite the availability of numerous other photographs from his years of service as a public official, it is simply without authority to censor the press in this matter and cannot instruct the press as to what images are newsworthy. In the context of this criminal matter, the Court cannot consider whether the images may have other negative effects, such as injury to the defendant’s public image or reputation. Accordingly, the Court finds that a prior restraint on the publication of images of the defendant in handcuffs is unnecessary to safeguard his right to a fair trial.

As to Corbin’s motion against perp walks, the court found the issue moot, since the perp walk in question had already occurred.