A legal drama worthy of The Good Wife is unfolding this morning as lawyers for CBS scramble to keep a producer from testifying, and e-mail exchanges between senior producers and high-level Brooklyn prosecutors are getting turned over in a last-minute court hearing about the legality of a TV show. The presiding judge, who once ran against the Brooklyn district attorney featured in the show, has shocked veteran court watchers by allowing the hearing to go forward. It's the latest twist in the controversy over Brooklyn D.A., a six-part series following Joe Hynes, who is currently in the middle of a reelection campaign, which CBS plans to air on Tuesday.
Hynes gave CBS unprecedented access, and Abe George, one of his opponents in the Brooklyn D.A. race, lobbed a lawsuit into Manhattan supreme court, arguing that airing the show would be in violation of fair election laws. The argument was a (very press-friendly) long shot, and a lawyer for George requested that e-mails between CBS producers and Hynes's prosecutors be turned over to determine if there were any arrangements made over issues like content and airtime.
“This is obviously a publicity push by a politician,” a CBS spokesman said, dismissing the suit as a media stunt. Many other legal minds were also of the same opinion — the First Amendment offers wide protection to news-gathering organizations like CBS to produce and air what they want and when they want.
But the judge hearing the case, Paul Wooten of Manhattan State Supreme Court, seems to have sympathy for George’s argument and the difficulty of running against an entrenched incumbent like Hynes. He might be the only judge that does: In 2005, Wooten was in the same position as George, running as an underdog against Hynes in the race for Brooklyn D.A. Wooten dropped out before even entering the primary because he couldn't raise enough money, a spokeswoman for his campaign said back then.
Late yesterday, after most of the courtrooms in Manhattan had closed, Wooten ordered that a hearing go forward. David Schulz, a lawyer for CBS, is incredulous that Wooten would not only entertain the idea but demand that CBS also turn over the e-mails overnight.
“It’s just two days, two business days ... until the broadcast,” Schulz argued, according to a transcript.
“Got it,” Wooten replied. “I got your argument, that you believe it’s irrelevant. I’m not so sure the court agrees ...”
“Judge, that’s completely unacceptable and it would be unconstitutional,” Schulz said. Wooten wasn’t interested.
Of course, this is precisely the kind of chaotic legal mess that might ensue after a public office gives a TV network so much access during a campaign season. But when I asked Hynes recently if he was worried about such issues, he shrugged them off: ‘Did I think for a moment, ‘Gee this could be a disaster.’ Yeah. I’ve been around long enough to understand the practical.”
Ironically, that very comment was included in a letter to Wooten arguing for the hearing. Aaron Rubin, a lawyer representing George, wrote: “Perhaps most troubling, Hynes has publicly suggested that he agreed with CBS to produce Brooklyn D.A. even after considering the foreseeable and highly questionable aspects of the show.”
Wooten’s decision to go forward with a hearing and not toss out George’s legal papers like junk mail had some longtime Brooklyn court and political watchers in awe. “He’s actually going to hear this?” one veteran defense attorney texted me, after hearing the news. Even George told me he was surprised at how favorable Wooten was to his arguments: "I didn't know where the politics would lead us, but he [Wooten] knows how tough it is to raise money."
Not only does Wooten plan to hear arguments in the case, he ordered the e-mails to be turned over later this morning. The hearing is scheduled for 2:00 p.m.
Update: The show goes on. After a long day in two courts, a judge has finally ruled the CBS series Brooklyn DA can air on Tuesday night. Early in the morning, CBS's lawyers raced to an appeals court to prevent their producers from testifying; after those attempts failed, the show's producers, Susan Zirinisky and Patti Aronofsky, testified under oath in Manhattan Supreme Court late into the afternoon. At issue was whether the office of Brooklyn district attorney Joe Hynes was given preferential treatment in exchange for access during the middle of an election.
After the producers testified, Judge Wooten denied the injunction, allowing the controversial show to air.
The legal battle over the show isn't over. Wooten still plans to rule on the essence of the lawsuit — whether the show violates fair election laws — on Tuesday.