Lawyer: Videotaping testimony could cause James Flaherty to have heart attack

Haverhill

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May 29, 2009

Judge will rule on newspaper's request this morning

By Shawn Regan

HAVERHILL — James Flaherty continued to run the Highway Department and a busy private business paving driveways and building homes for several years after suffering a heart attack and stroke in August 2003.

Police photographs taken secretly between 2004 and 2006 show the former Highway Department superintendent riding a steamroller and doing other work on private job sites.

But being videotaped during his testimony this morning in Salem Superior Court poses a substantial risk to Flaherty's health and could cause him to have another heart attack, his lawyer argued yesterday.

Yesterday afternoon Judge David Lowy granted a motion by Flaherty attorney Scott Gleason to bar The Eagle-Tribune from videotaping James Flaherty's testimony. The judge said he will allow the newspaper to videotape all other witnesses in the case, including Kevin Flaherty, who is scheduled to testify after his father.

Kevin Flaherty's testimony will be broadcast today on www.eagletribune.com as soon as it happens.

Lowy said he will allow The Eagle-Tribune to take photographs of James Flaherty, 67, who now gets around with the help of a cane.

The judge ruled it would be significantly more stressful to James Flaherty to be videotaped in court than photographed.

"It's more stressful for the defendant to know that people are able to click (on a Web site) and see every movement of the defendant and every mannerism," the judge said.

However, Lowy agreed to reconsider his decision after a hearing later yesterday afternoon at which Eagle-Tribune lawyer Robert Bertsche argued for the newspaper to be allowed to videotape James Flaherty.

The judge said he would make his final ruling in court at 8:50 a.m. today, prior to James Flaherty's scheduled testimony.

Case law says a judge "shall permit broadcasting, televising and electronic recording by news media of proceedings open to the public in a courtroom" with one exception. The exception states "a judge may limit or temporarily suspend news media coverage, if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence."

Gleason submitted an affidavit in support of his motion that details James Flaherty's medical condition.

The document says Flaherty suffered a heart attack on Aug. 19, 2003, which was followed by a stroke. It says Flaherty continues to have "significant medical issues including severe high blood pressure."

In the affidavit, Flaherty said his testimony will be "an acute stressor for me," and that videotaping his testimony would heighten that stress.

In his argument, Bertsche noted the case is of great interest to Haverhill taxpayers as it is about allegations their money was stolen and misused by an elected official. Bertsche also said James Flaherty should be familiar and comfortable with speaking in public given his many years as head of the Highway Department.