Opinion
No. 1260/12.
11-24-2014
The PEOPLE of the State of New York, v. Louise NEATHWAY. a.k.a. Louise Meanwell, Defendant.
New York County District Attorney Cyrus R. Vance, Jr. (Daniel Garnaas–Holmes & Kenneth Kern, of counsel) for the People. Lawrence P. LaBrew, for the Defendant.
New York County District Attorney Cyrus R. Vance, Jr. (Daniel Garnaas–Holmes & Kenneth Kern, of counsel) for the People.
Lawrence P. LaBrew, for the Defendant.
Opinion
DANIEL P. CONVISER, J.
The Defendant is charged with grand larceny and related charges arising from an allegation that she obtained a below-market Manhattan apartment by falsely claiming her daughter would live in the apartment with her (the “Apartment Indictment”). She is also charged in a separate indictment with grand larceny, coercion, perjury, stalking, aggravated harassment and related charges arising from actions she allegedly took against family members and other individuals. The Defendant previously indicated she wished to call an expert psychiatric witness to opine that her mental condition would provide a defense to the charges in the Apartment Indictment. This Court ruled in a Decision and Order earlier this year that the Defendant would not be entitled to call such a witness with respect to that indictment. People v. Neathway, 43 Misc.3d 1235(A) (New York County Supreme Court, June 13, 2014).
The Defendant subsequently brought an Article 78 petition against this Court seeking to reverse that ruling. That petition was unanimously dismissed by the First Department without an opinion in Neathway v. Conviser, 120 AD3d 1143 (1st Dept 2014).
In April of this year, the Defendant was interviewed by an examiner for the People for approximately five hours for the purpose of assessing these psychiatric claims and a videotape of this interview (the “Videotape”) was made by the People. The Defendant here seeks a copy of this Videotape. The People have no objection to providing the Videotape to the Defendant and indeed are required to do so but ask that this Court issue a protective order directing the Defendant to not use the Videotape for any purpose other than assisting her with respect to the criminal charges here. That application is opposed by the Defendant. For the reasons outlined below, the People's motion for a protective order is denied and the People are directed to provide a complete copy of Videotape to the Defendant.
CPL 240.20(1)(a) generally requires the People to provide the defense upon a demand with any recorded statement of a defendant prepared at the People's direction.
This Court has watched the entire Videotape. In it, a psychologist whose name is not provided and who has apparently been retained by the prosecutor's office, questions the Defendant, Ms. Neathway, about her life history beginning in her childhood, discusses the relationship she had with her former husband, Jason Bump and what Ms. Neathway contends was the extreme physical and emotional violence Mr. Bump perpetrated against her. Ms. Neathway also describes other romantic relationships, criticizes the legal and particularly the family court system, discusses her daughter and criticizes actions by family members of Mr. Bump. During discussions of her general life history, Ms. Neathway is calm and articulate. Discussions regarding Mr. Bump, however, are seen to cause her significant pain and at times she appears overwhelmed with emotion. The examination becomes increasingly contentious as it proceeds, with Ms. Neathway increasingly refusing to answer questions. She asserts that she will not answer some questions because they concern ongoing Family Court proceedings, some because they concern the instant proceedings, some because she feels the questions are not relevant and some because she asserts she wishes to protect the identity of various individuals. She indicates that her attorney has advised her not to address various subjects and breaks are taken during which she confers with her attorney who is apparently present throughout the interview but is not seen on camera. The interview finally ends when the examiner indicates that because of the acrimony which the interview is generating, it would be best for the proceedings to adjourn, a conclusion in which Ms. Neathway concurs.
The Court viewed three DVD's which recorded the interview. The first two record an extended interview which the DVD's indicate occurred on April 4, 2014. The third DVD records an interview which apparently adjourns at 12:33 P.M. on April 18, 2014. There were a number of time stamp discrepancies and extraneous material contained in the DVD's provided to the Court and the Court initially had difficulty accessing the DVD's but the People indicate that these three time periods comprise the entire period during which the interview took place.
The People have previously argued that Ms. Neathway improperly refused to answer various questions during this examination which she was required to answer given the fact that she had indicated she wished to call an expert psychologist to testify on her behalf with respect to the Apartment Indictment. Given the fact that this Court has ruled that the Defendant will not be permitted to present the testimony of this psychologist with respect to the Apartment Indictment, the Court did not rule on the People's contention that Ms. Neathway did not appropriately cooperate with the People's psychologist during the instant examination.
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The People have already provided the Defendant a copy of a transcript of the entire interview which is recorded on the Videotape. They have never requested and continue not to request that this Court issue any protective order with respect to this transcript. Put another way, the People apparently believe they have no legal basis to argue that the conten of any of the words spoken on the Videotape entitles them to the issuance of a protective order. What the People apparently find potentially objectionable are not the words Ms. Neathway has spoken, but the manner and medium in which those words have been conveyed.
CPL 240.50 provides the court with broad authority to issue a protective order like the one sought by the People here. Among other justifications, a protective order may be issued to avoid “a substantial risk” of “unjustified annoyance or embarrassment” to a person. The People argue that the Defendant has engaged in a multi-year pattern of harassment directed at her former husband, Mr. Bump, his family and the Defendant's daughter. Allowing her free use of the Videotape, they argue, would enable her to use it to further that harassment. The People acknowledge that Ms. Neathway might be able to freely repeat the same allegations she makes in the Videotape in a different forum. But they assert that the fact that the Videotape was prepared by the People for use in the instant litigation puts the Videotape in a different category than, for example, an identical Videotape which was made by the Defendant herself, without the People's participation.
Evidence provided in discovery in a criminal case absent the issuance of a protective order, on the other hand, may be publicly disclosed. That is, there is an inherent presumption that materials provided by one party to another party in a criminal case are not shielded from public disclosure unless the standards applicable to the issuance of a protective order have been satisfied. In addition to the right of a party to make free use of discovery material provided to it, the public also unquestionably has a right to open judicial proceedings absent some reason to restrict disclosure. People v. Sanabria, 301 A.D.2d 307 (1st Dept 2002), lv. denied. 99 N.Y.2d 632 (2003). Indeed, “the presumption of the benefit of public access to court proceedings” takes precedence over a court's inclination to seal court records unless “compelling objectives ... outweigh[s] the public's right to access.” Applehead Pictures LLC. v. Perelman, 80 AD3d 181, 191–192 (1st Dept 2010).
The People here, in the Court's view, have a legitimate concern that the Videotape could be used to embarrass or annoy the persons whom the People allege have been the victims of Ms. Neathway's alleged criminal conduct. A number of facts here, however, convince this Court that a protective order should not be issued. First, it is obvious that the issuance of a protective order would not prevent any harassment or annoyance Ms. Neathway might wish to cause because the material the People seek to restrict are recordings of Ms. Neathway's own statements. Upon the issuance of a protective order preventing the disclosure of the Videotape, there would be nothing to prevent Ms. Neathway from simply pulling out a phone, recording any of the allegations she makes on the Videotape and then disclosing that recording. This makes the instant application obviously different from the usual case in which protection is sought for information provided to an opposing party in a criminal case which that opposing party would not otherwise be able to access.
The People correctly point out that were Ms. Neathway to make her own videotape that would differ from what is at issue here because the prosecution would not have been a participant in creating such a recording. But the Court does not see how this difference is material with respect to the issue here. The fact that this recording was made by the People, rather than by Ms. Neathway herself, does not make it any more dangerous or prone to abuse. The opposite is true. Ms. Neathway would obviously have more freedom to create a videotape making embarrassing or annoying allegations herself, rather than through the Videotape here which was created through questions posed by the People's own professional examiner in a proceeding where prosecutors and Defendant's counsel were present.
Second, as noted infra, the People have made no objection to Ms. Neathway's use of the content of her statements on the Videotape as reflected in the transcript she already possesses. The only difference between the transcript and the Videotape is the drama inherent in seeing and hearing the words spoken by Ms. Neathway on the Videotape, rather than the substance of anything she says. While there are certainly cases where it is proper for a court to restrict the dissemination of publicly available information through particular media or formats, the Court cannot perceive of why that should be done here. There is no evidence that Ms. Neathway has thus far used the transcript she possesses for any improper purpose. The People have also indicated that the harassment they allege Ms. Neathway previously perpetrated against various members of her family has stopped upon the issuance of temporary orders of protection issued by the Court to protect those people.
At an appearance on the record to discuss this issue, the People previously alleged that certain statements made by Ms. Neathway on the Videotape might violate Family Court confidentiality rules. In response to that claim, the Court invited the People to identify which Videotape statements would fall into that category and indicated the Court would consider issuing a protective order with respect to any such statements. The People have not responded to that request. Rather they continue to urge that a protective order should be issued with respect to the entire Videotape. But there is not even a colorable argument that much of the Videotape would warrant any protection from disclosure. A viewer of the Videotape would learn, for example, that Ms. Neathway grew up in England, liked horses as a child, had a good relationship with her grandparents, worked as a nanny, previously lived in North Carolina and Albany, New York, continues to maintain relationships with various friends and was previously in a serious car accident. There is obviously no basis for a judicial order restricting the Defendant from disclosing statements like this.
This Court's refusal to grant the People's application is also not a license for the Defendant to use the Videotape for any unlawful or improper purpose. To the extent any of the statements on the Videotape were defamatory, for example, the fact that the Court has not issued a protective order would not immunize Ms. Neathway from any civil liability arising from such a possible tort. Inherent in the People's application is the notion that the Defendant would not have any legitimate use for the Videotape apart from this litigation. But, in the Court's view, that argument misses the mark in two respects. First, the burden with respect to demonstrating good cause for the issuance of a protective order is on the People, not Ms. Neathway. Second, the Court can readily conceive of non-objectionable reasons why the Defendant might want to use the Videotape apart from this case. The Videotape records a psychiatric evaluation. Ms. Neathway might want to show it to psychiatric professional of her own choosing for purposes of psychological treatment or evaluation. She might want to show it to a friend or a family member.
The Court is aware that this case has garnered media attention and that the failure to issue a protective order would mean the Defendant would not be prohibited from showing the Videotape to the media. But the parties have previously agreed that no “gag order” should be issued in this case with respect to the press and the Court does not believe the Videotape has any realistic potential of so polluting the minds of any potential jurors in a saturated media market like Manhattan that it would impede the ability to find fair and impartial jurors for Ms. Neathway's trial. The media interest in these two cases, moreover, has arisen from the fact that certain charges in the non-Apartment Indictment concern Ms. Neathway's former relationship with Yankees general manager Brian Cashman. Ms. Neathway discusses her prior relationship with Mr. Cashman, however, for only a few minutes of the five hour Videotape and refuses to answer detailed questions about it.
In any event, as noted supra, the issuance of a protective order would not in practical terms prevent Ms. Neathway from making the same allegations she makes in the Videotape in a different videotape and then providing that videotape to the media. It would not prevent her from making the same allegations in a media interview. Indeed, to the extent the People believe any statements on the Videotape would be embarrassing, hurtful, annoying, unlawful or objectionable, a protective order would do nothing to prevent Ms. Neathway from making statements which were even more egregious in any number of potential forums. It is also far from clear that Ms. Neathway would have any interest in disclosing the Videotape. At one point during her interview, she herself described the experience of having an examination of the intimate details of her life recorded as humiliating.
In contrast to the People, Ms. Neathway herself would certainly be entitled to move for an order to safeguard the confidentiality of the recording of her psychiatric evaluation. “Psychiatric records are to be disclosed only when their confidentiality is significantly outweighed by the interests of justice”. People v. Duran, 276 A.D.2d 498 (2nd Dept 2000) (quotation omitted). But that protection operates to protect persons subject to psychiatric examinations, not opposing parties in litigation. Ms. Neathway has not sought any such order. The People have also shown no inclination to disclose the Videotape or use it for any purpose other than the instant case.
There is an inherent presumption here. That is the presumption that court proceedings and their attendant records are open to the public. The People, in this Court's view, have failed to overcome that presumption. For all of those reasons, the People's application for a protective order with respect to the Videotape is denied. The People are directed to provide a complete copy of the Videotape to the Defendant forthwith.