THE FREE LANCE NEWS CHALLENGES SECRECY FOR GUARDS WHO KILLED ROBERT BROOKS
LAWSUIT FILED IN STATE SUPREME COURT SEEKS TO OPEN SECRET EMPLOYEE DISCIPLINARY HEARINGS TO JOURNALISTS AND THE PUBLIC
EXCLUSIVE
Feb. 3, 2025
The Free Lance News is suing for the right to witness and report on the employee disciplinary hearings state officials claim to be conducting for the prison guards who killed Robert Brooks.
A ruling in the news blog's favor would open the hearings to the public—including members of Brooks' family.
The Department of Corrections and Community Supervision or DOCCS, which runs New York's prison system, has kept the hearings secret for decades. They are presided over by private arbitrators instead of public, elected judges.
"DOCCS' employee disciplinary system has been roundly criticized as toothless and ineffective," the lawsuit alleges, citing notorious Correction Officer Edward Kuhnel as an example.
Kuhnel handed out white supremacist literature to fellow guards while at work at the Eastern Correctional Facility in 1988 and flew the Nazi flag from his home on Hitler's birthday in 1996, the Middletown Times Herald Record reported. It wasn't until he was convicted of sodomizing a cross-dressing prisoner in 2001 that DOCCS finally managed to fire him—a year later, in 2002.
"The public has a significant interest in witnessing how DOCCS' employee disciplinary system works," the petition, filed in State Supreme Court in Albany on Monday, alleges. "The public has an especially significant interest in observing the disciplinary hearings for the employees charged by DOCCS in connection with Brooks' killing."
The guards' union, the New York Correctional Officers & Police Benevolent Association, did not respond to an invitation to comment.
For decades, New York law made it illegal for the public to know the disciplinary records of law enforcement officers, including prison guards. With few exceptions, officials interpreted the law, called 50-a for the section of the Civil Rights law it occupied, to effectively require secret disciplinary hearings for the officers.
The murder of George Floyd by Minnesota police in 2020 motivated the governor and state legislature to repeal 50-a and, with it, the justification for keeping the disciplinary hearings of officers secret.
The lawsuit cites the US Constitution, the State Constitution, New York's Freedom of Information law and what it calls "the American common law right of the public to gain access to information and proceedings affecting the public interest" as the legal basis of its demand the hearings be made public.
The latter is noteworthy because New York's FOIL law has been almost read out of existence by judges and officials, making the common law right of access a potentially more powerful legal weapon for journalists and citizens to use to gain access to public records.
Gov. Kathy Hochul said she "directed DOCCS Commissioner Martuscello to begin the termination process for the 14 individuals who were involved in his fatal attack" on Robert Brooks in a news release on Dec. 27, 2024. Thomas Mailey, DOCCS' Director of Public Information, said disciplinary proceedings were initiated against three more guards and a nurse on Jan. 10.
DOCCS contract with the union allows guards accused of misconduct to ask for expedited hearings that must be completed within 90 days of request. DOCCS has ignored requests to disclose information about the status of the hearings, so it's unknown how far along its efforts to fire the employees is.
The lawsuit seeks to change that. It asks the court to declare that the public has the legal right to attend the hearings. It also seeks a court order allowing this reporter to attend and witness the hearings to report on them.
A decision is expected in about three months.
Send tips or corrections to jasonbnicholas@gmail.com or, if you prefer, thefreelancenews@proton.me