The Children’s Law Center, which advocates for children in juvenile court, is suing in a state appeals court to overturn a Los Angeles judge’s decision to allow the media into juvenile hearings.

The center says the ruling wrongly puts the interests of the public and media above the interests of those suffering child abuse and neglect. -db

From the Los Angeles Times, February 7, 2012, by John Hoeffel.

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A recent study concluded that use of social media by jurors is infrequent with the implication that the practice is not a growing problem, but Eric P. Robinson, writing for the Citizen Media Law Center, says that the study takes a far too optimistic stance on the issue.

Given the rampant use of the social media by the general public supplying the juror pools and the difficulty of detecting its use by jurors, Robinson argues that the study’s findings are dubious. -db

From a commentary for the Citizen Media Law Center, February 6, 2012 by Eric P. Robinson.

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A federal district judge ordered the release of court records relating to a lawsuit brought by a hospital system alleging that another hospital group had conspired against them.

The hospital system refused to release details of an agreement settling the case claiming that the information was confidential, containing vital business information about future plans. -db

From The Reporters Committee for Freedom of the Press, January 4, 2012, by Kristen Rasmussen.

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A local newspaper said the courtroom rules for the ex-Penn State coach Jerry Sandusky’s hearing over his alleged rape and sexual abuse of  children “may stun the national media.” The rules cover five pages. “It’s not California,” noted the Centre Daily Times. -db

From a  commentary in the Centre Daily Times, December  7, 2011.

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A Sacramento lawyer found herself in court the same day  arguing two sides of the First Amendment in two separate trials, in one to keep the press and public out of pretrail hearings in a sensational murder trial and the other to defend Occupy Sacramento protesters on free speech grounds.

In both trials she was arguing”time, place and manner” restrictions on free speech and/or press. -db

From the Sacramento Bee,  December  4, 2011, by Andy  Furillo.

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When the lawyers argue before the 9th U.S. Circuit Court of Appeals on the appeal of the striking down of Prop 8, the referendum prohibiting same-sex marriage, the proceedings will be videotaped and then televised.

A federal district court had ruled Prop 8 unconstitutional for violating equal protection and due process rights. -db

From the First Amendment Center, December 2, 2011.

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The Courthouse News Service lost a round in court when a federal judge refused to hear a case over a court clerk’s delay in providing access to new civil actions. Courthouse News contended that the delays violated their free press rights in that by the time they received access, the cases were old news.

The judge said it was not the role of a federal judge to intervene in a state court’s business. -db

From the Courthouse News Service, November 29, 2011, by Bill Girdner.

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The  Tennessee judge presiding over the lawsuit over the return of an adopted 9-year-old boy to Russia ruled that the court documents be unsealed.

A court memo indicated that there were no facts presented to justify sealing the case and that the 9-year-old was living in Russia far from the harsh light of publicity about the case. -db

From The Reporters Committee for Freedom of the Press, November 23, 2011, by Kristen Rasmussen.

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The presiding judge of the Los Angeles Juvenile Court plans to open court hearings to the public by the end of the month in an attempt to bolster public confidence by improving accountability and transparency.

The court deals with child abuse and neglect and foster care placement. Many social workers oppose the plan out of concerns for the privacy and the children. The proceedings would be presumed open unless someone objects or a judge decides to close them. -db

From the Los Angeles Times, November 9, 2011, by Garrett Therolf.

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The Ninth U.S. Circuit Court of Appeals has delayed its decision on whether to release video recordings of the January 2010 Prop. 8 trial on the constitutionality of banning same-sex marriage.

The court is still deciding if the public’s right to know outweighs potential danger to witnesses in favor of Prop. 8, passed by the voters in 2008 banning same-sex marriage in California. -db

From  the San Francisco Chronicle, October 25, 2011, by Bob Egelko.

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A manufacturer upset about an online database of safety complaints has asked the court to allow it to remain anonymous in its suit against a government agency. The manufacturer claims that if it were named, it would jeopardize the interests it strives to protect by bringing suit.

As of this week, there is no record of the lawsuit on PACER, the federal courts’ electronic service with case and docket information. -db

From The Reporters Committee for Freedom of the Press, October 19, 2011, by Kristen Rasmussen.

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A movement to improve the transparency and openness of federal courts is gaining momentum with video cameras recording at least six civil trials courts authorized under the experiment.

There is also evidence of progress in several states in preparations for recording court proceedings. -db

From a commentary for the Citizen Media Law Project, October 17, 2011 by Eric P. Robinson.

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The videos of  Prop. 8 lawsuit videos will not be released while  federal appeals court considers whether the videos would endanger witnesses and compromise the credibility and integrity of the federal judiciary.

The 9th Circuit Court of Appeals issued a temporary hold on the videos after Chief  U.S.District Judge James Ware ruled on Sept. 19 that the videos be released. -db

From the San Francisco Chronicle, September 28, 2011, by Bob Egelko.

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A new California law scheduled to go into effect January 1, 2012 prohibits jurors from using texting, social media or the Internet to research or to distribute information about cases in trial.

There have been numerous instances of juror misconduct that made the law necessary. Then Governor Arnold Schwarzenegger vetoed a similar bill last year. -db

For the Citizen Media Law Project, September 1, 2011, by Eric P. Robinson.

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A federal appeals court in New Orleans ruled a Texas journalist could expedite his appeal of a gag order in a trial of a citizen of Saudi Arabia who allegedly attempted to use of weapon of mass destruction in the U.S.

The court refused to suspend the gag order but ordered that a decision in the appeal be made on September 9. -db

From The Reporters Committee for Freedom of the Press, August 12, 2011, by Derek Green.

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The federal courts’ test of  cameras in the courtroom began July 21 in a hearing for a preliminary injunction in Tennessee. The test program,  approved by the U.S. Judicial Conference last year,  allows court-operated cameras to film civil proceedings in 14 federal trial courts. The July 21 proceedings were posted online after the hearing.

Writing for the Citizens Media Law Project, Eric P. Robinson noted that this is not the first experiment with cameras in federal courts, “Only time will tell if this experiment finally leads to federal courts being open to regular camera coverage, or if it will be just another short period of openness before cameras are once again left outside the courtroom doors.” -db

From a commentary for the Citizens Media Law Project,  July 27, 2011 by Eric P. Robinson.

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A U.S. magistrate judge ruled that a ex-Baptist deacon accused of sexually abusing one of his female parishioners could not go by a psuedonym during his trial.

The judge said the deacon’s desire to avoid embarrassing revelations did not outweigh the public’s right to know, “”Allegations of sexual assault of a minor is [sic] of public interest,” the judge wrote. Moreover, “Bowen’s [the deacon's] former employment and leadership role in a religious organization paired with his current involvement in the tourism industry makes him of public interest.” -db

From the Courthouse News Service, July 27, 2011, by Jack Bouboushian.

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The 5th Circuit Court of Appeals in New Orleans ruled that the press and public have a First Amendment right to attend the sentencing of a criminal defendant. The court also said that there must be public notice and a chance for the public to comment before the sentencing.

The court noted that there was a long history of opening sentencing including high-profile cases and said that there were significant benefits such as  increasing public confidence in the criminal justice system and better informing the  public. -db

From The Reporters Committee for Freedom of the Press, May 18, 2011, by Derek Green.

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Court administrators hastened to say that trials at the Riverside Superior Court’s branch in Corona were open to the public after someone posted a sign to the contrary. An employee had apparently misinterpreted instructions about curtailed services to include access to criminal trials.

Two Supreme Court decisions affirm access to courts except in cases in which closure was essential to protect the defendant’s right to a fair trial and other interests such as juror privacy, and there are no other ways of protecting those interests. -db

From the Metropolitan News-Enterprise, May 13, 2011, by Kennth Ofgang.

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The California Legislative Analyst’s Office is recommending phasing out court reporters in favor of electronic transcription. The Office thinks it will save the state $113 million a year but studies have raised doubts that any savings would occur.

Some open government advocates are also challenging the status quo by questioning the benefits of allowing court reporters intellectual property rights to court transcripts ergo the right to collect fees for copies thereby limiting access. -db

From a commentary in the Sacramento Bee, April 25, 2011, by Andy Furillo.

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Attorneys for the Southern Poverty Law Center are allowed to discuss a civil rights case involving treatment of plaintiffs in a private Juvenile Detention Center.

A federal judge found that a fair trial would not be compromised by statements from plaintiffs or their attorneys. The judge noted that while “Defendants are dismayed by the extrajudicial statements at issue in this case, since such statements challenge the Defendants’ business activities and actions…such dismay does not amount to the legal requirement for this type of protective order.” -db

From The Reporters Committee for Freedom of the Press, April 4, 2011, by Kacey Deamer.

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Smartphones could be used to provide instantaneous online updates of court proceedings but the federal court administration sees dangers in allowing smartphones in court buildings. The Administrative Office of the Courts want to ban smartphones not just because they could conceal non-metallic bombs but also for the potential harm to court proceedings through secret recording.

The office issued an 8-page memo on the topic saying, “Reasons above and beyond terrorism to restrict the devices from courthouses include the secret filming, recording or transmitting of court proceedings; the disruption of court proceedings; and that deliberating jurors might access the internet and research the case.” -db

From a commentary in Wired, March 28, 2011, by David Kravets.

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The federal appeals court in Atlanta ruled that plaintiffs could remain anonymous in suing video creator Joe Francis for filming them while they were underage engaging in nudity and sexual acts. -db

The Reporters Committee for Freedom of the Press
February 2, 2011
By Derek Green

Several women suing the creator of the “Girls Gone Wild” video series will be allowed to proceed anonymously in the case, after a panel of the U.S. Court of Appeals in Atlanta (11th Cir.) on Tuesday overturned a district court judge’s decision requiring disclosure.

But the court left open the issue of whether the plaintiffs’ request for restricted reporting at trial would serve as an unconstitutional prior restraint on speech.

Plaintiffs in the case, Plaintiff B v. Francis, sued video creator Joe Francis and his companies “for damages stemming from films the Defendants produced in which the Plaintiffs, while under the age of eighteen, exposed their breasts and engaged in sexually explicit acts,” according to the appellate court’s opinion. One plaintiff also alleged that she had been sexually assaulted by Francis. At issue was the trial court’s denial of the plaintiffs’ request to remain anonymous through the trial proceedings.

The district court initially allowed the plaintiffs to proceed anonymously through pre-trial proceedings, but later ruled that the plaintiffs could not proceed anonymously at trial. The appellate court disagreed with the trial court’s decision, noting that the lower court’s ruling rested on the conclusion that the presumption of openness in court proceedings outweighed the concerns expressed by the plaintiffs.

The appeals court’s analysis began by acknowledging a “strong presumption in favor of parties’ proceeding in their own names,” noting that defendants “have the right to know who their accusers are, as they may be subject to embarrassment or fundamental unfairness if they do not.”

But this rule is not absolute, the court said. Referencing cases involving issues such as abortion and religious beliefs, the court noted that the presumption against anonymity can be overcome when a party “has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’”

The Eleventh Circuit concluded that this case involved such concerns. “The issues involved in this case could not be of a more sensitive and highly personal nature — they involve descriptions of the Plaintiffs in various stages of nudity and engaged in explicit sexual conduct while they were minors who were coerced by the Defendants into those activities,” the court stated.

The Eleventh Circuit ordered the district court to allow two of the four plaintiffs to proceed anonymously, concluding that the explicit and involuntary nature of the actions that they alleged and the potential harm they could suffer justified proceeding anonymously. The appellate court also ordered the trial court to reconsider whether the other two plaintiffs should also be allowed to remain anonymous.

Notably, the court’s opinion left open the issue of how to allow the plaintiffs to proceed anonymously at trial without creating an impermissible prior restraint on speech. Observing that the plaintiffs sought to restrict the press’s ability to report identifying information disclosed at trial, the appellate court ordered the trial court to address the issue on remand.

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The district attorney in Roseville is asking a court for a gag order in an arson case. They claim the order is needed to ensure a fair trial whereas those against the order say it would prevent information from surfacing that would clear up misperceptions about the case. -db

The Reporters Committee for Freedom of the Press
December 15, 2010
By Derek Green

A California state court in Placer County heard arguments Tuesday on a motion from the local district attorney’s office for a controversial gag order in a shopping mall arson case. The attorney for the accused and the Sacramento Bee opposed the gag order, which, if granted as proposed, would apply not only to the parties and their attorneys, but also to investigating agencies and their employees as well.

The larger significance of the prosecution’s proposed “order prohibiting comment on the case” became apparent last week, when the City of Roseville decided to withhold public disclosure of an investigative report about the emergency response to the mall fire. Although the city had initially intended to release the report, it reversed that decision after the district attorney’s office sought the gag order.

The withheld findings were particularly noteworthy because they were expected to explain why the mall’s sprinkler system shut off during the fire, according to The Sacramento Bee.

In its briefing submitted before the hearing, the district attorney’s office asserted that the city’s findings, which the prosecution acknowledged the city had drafted “for public and media release,” should not be released to the public. The briefing argued that the release of such information “poses a substantial danger of tainting the pool of potential jurors, and endangers both the Defendant’s and the People’s constitutional right to a fair trial.”

Johnny Griffin III, representing the accused, opposed the gag order. Griffin asserted in his briefing that such a prohibition would do little to reduce publicity and could compromise his ability to comment on the case.

The Bee also opposed the proposed gag order, asserting that it would unconstitutionally impair newsgathering and also failed to meet the high standards necessary to justify restraining speech. Attorney Charity Kenyon’s brief also asserted that the order would not have the desired effect. “The proposed order would not prevent publication of information about the case pending and during trial, but it could result in the perpetuation of an error or misunderstanding already reported to the public,” Kenyon wrote.

News reports of the hearing indicate that the parties held to their positions at the hearing.

A decision by the trial court is expected later this week.

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The Ninth Circuit is allowing live broadcasting by C-SPAN and KGO, an ABC affiliate,  of the December 6 oral arguments on California’s Proposition 8 banning same-sex marriage. -db

SCOTUSBlog
November 17, 2010
By Lyle Denniston

The Ninth Circuit has agreed to allow live and delayed TV broadcasting of the Dec. 6 oral argument in the case on California’s ban on same-sex marriage — Proposition 8.

The Ninth Circuit Court agreed on Wednesday to allow live and delayed broadcasting of the Dec. 6 oral argument on the constitutionality of Proposition 8 — California’s ban on same-sex marriage. In a brief order, the Court cleared live broadcasting by C-SPAN, the cable network. It also gave permission to a San Francisco station, KGO-TV, an ABC affiliate, to provide coverage.

The hearing, now scheduled for two hours, is to begin at 10 a.m. Pacific time. The Court earlier this week issued a scheduling order. On Wednesday, the challengers to Proposition 8 asked the Court to revise that schedule, to give it more time than the original schedule had allotted.

They urged the Court to leave it to the judges’ questions and lawyers’ arguments to determine how much of the time goes to the constitutional merits and to the issue of whether anyone has a right to appeal the case.

At issue in the case, aside from the question of “standing” to appeal, is a ruling by U.S. District Judge Vaughn R. Walker striking down Proposition 8.

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The California Newspaper Publishers Association has joined with the Los Angeles Times, the New York Times Co. and the Association Press to endorse reforms favorable to the media in a draft from the state Bench-Bar-Media Committee. -db

California Newspaper Publishers Association
November 1, 2010

The newspaper industry has filed comments with the Judicial Council on the draft report of the statewide Bench-Bar-Media (BBM) Committee.

The BBM Committee, created by Chief Justice Ronald M. George at the request of CNPA in 2008, recommends nearly a dozen sweeping changes in court rules and policies to improve relations among the bench, bar and news media, including updating or creating new rules for use of cameras and recording devices in the courts, the issuance of gag orders and increasing public notice of applications to seal court records. The 55 page report is available here.

At the Los Angeles Times’ invitation, CNPA has joined the Times, Associated Press and New York Times Co. and filed a letter that wholeheartedly endorses all the BBM Committee’s suggested rule and policy changes. The letter focuses most on the proposals to create a presumption in favor of allowing cameras in the courts and to establish strict standards for evaluating the constitutionality of gag orders. The 20-page letter also argues in support of a policy to require reasonable public notice of applications to seal records and, briefly, for the hiring of regional public information officers to help address conflicts between the media and courts at an early stage. Similar comments were filed by the McClatchy Co. on behalf of The Sacramento Bee, The Modesto Bee, The Fresno Bee, the Merced Sun-Star and the San Luis Obispo Tribune.

Judges representing the Los Angeles Superior Court and Sacramento Superior Court filed comments that are critical of the BBM Committee recommendations. The judges’ comments questioned whether the composition of the committee was representative of all the interested groups, its procedures for adopting recommendations, and the need for the proposals. On the cameras in the courts proposal, the Los Angeles Courts said the presumption of access would “diminish the authority and responsibility of the courts to assure the integrity of the proceedings.”

The statewide BBM is chaired by Associate Justice Carlos R. Moreno of the California Supreme Court. CNPA Vice President and Chairman of the association’s Bench-Bar-Media Committee Ralph Alldredge represented CNPA on the committee and also chaired the “Access to Court Proceedings Working Group” which created the report’s public access recommendations. Included in its membership, among others, were First Amendment Coalition Executive Director Peter Scheer, media attorney Kelli Sager of Davis Wright Tremaine, Los Angeles Times California Editor David Lauter and Greg Moran, Legal Affairs writer for the San Diego Union-Tribune.

The statewide BBM committee also includes appellate court justices, superior court judges, attorneys specializing in the First Amendment, a prosecutor, a criminal defense attorney, journalists, an academic, a superior court executive officer, and a superior court public information officer.

Highlights of the report include:

Cameras in Court: Amend rule 1.150 of the California Rules of Court to provide an explicit presumption that cameras and other recording devices are allowed in the courtroom unless sufficient reasons exist to prohibit or limit their use. The recommendation also calls for judges to make specific findings to prohibit or limit the use of cameras and other recording devices.

Gag Orders: Adopt a uniform statewide rule similar to those governing orders sealing records and consistent with the opinion in Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232. That ruling, among other things, requires a specific finding of a legitimate competing interest that overrides the public’s right of access and justifies some form of gag order. The ruling also limits the scope of any gag order to the narrowest restraint and shortest time period necessary to protect the identified overriding interest.

Orders Sealing Records: Develop a rule of court that requires all courts to post notice of any application for, or entry of, an order sealing a record on their local websites within five court business days after filing or entry. If that is not possible, the proposed rule would require that such a notice be sent to the Judicial Council for publication on the judicial branch’s website within the same five court business days required for posting online.

Educational Programs: Support creation of educational content and programs to enhance relationships and cross-communication among the bench, bar, media, court staff, and public.

Judicial Officer Training: Develop training for judges and justices on how to present the meaning or substance of court decisions in a way that can be easily understood by the media and the public. The Bench-Bar-Media Committee also drafted proposals to address the need to explain legal terminology to the public and media; create online training materials for court staff and judges; develop regional media access plans; and make regional public information officers available to assist the courts.

The report also recommends that CNPA representatives meet with court reporter unions and associations to develop a special protocol and pricing formula that would allow court reporters to prepare limited partial transcripts for use by the media in preparing accurate accounts of court proceedings for publication.

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The U.S. Supreme Court ruled that the public could review the court proceedings and issues involved in a Kansas suit over alleged unlawful prescription of pain relief medication. -db

The Reporters Committee for Freedom of the Press
October 18, 2010
By Derek Green

The United States Supreme Court today denied the Reporters Committee for Freedom of the Press’ motion to intervene in a pending case but allowed a redacted version of the petitioners’ request for Supreme Court review to be publicly filed.

Earlier this month, the Reporters Committee requested to intervene in the case, In Re Grand Jury Proceedings, in order to gain public access to the Supreme Court filings in a case that involves a dispute over grand jury subpoenas in a federal investigation in Kansas. Although the lower court records are sealed, the case has garnered significant news coverage.

Siobhan Reynolds, one of the petitioners in the case, publicly discussed in 2009 that she and her organization, the Pain Relief Network, were issued grand jury subpoenas for records related to an investigation into the prescription of pain relief medication. Reynolds told the Associated Press that she believed she and her organization were being investigated because of their advocacy on behalf of a doctor accused of unlawfully prescribing pain medication. She also reported that she fought the subpoenas in the federal District Court in Kansas and lost, but planned to appeal.

In the Supreme Court, the petitioners asked for permission to file their request for Supreme Court review under seal in order to comply with any sealing orders from the lower courts, but with a redacted version available to the public. The Supreme Court’s order today grants the petitioners’ request, signaling that the public will have the ability to at least partially review an official record of the proceedings and the issues involved.

Copyright 2010 The Reporters Committee for Freedom of the Press     FAC Content Use Policy

Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals wrote in the Fordham University law review that it is time to allow television cameras in courtrooms to give the public a full view of the proceedings and increase public respect for the justice system. -db

San Francisco Chronicle
October 8, 2010
By Bob Egelko

SAN FRANCISCO — It’s time to allow television cameras into the nation’s courtrooms “to give the public a full and fair picture of what goes on,” says the chief judge of the federal appeals court in San Francisco – with a swipe at the U.S. Supreme Court for blocking video coverage of the Proposition 8 trial.

Televising court proceedings would increase public respect for the justice system and might also improve trials, Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals wrote in the Fordham University law review.

Although some lawyers and judges might grandstand for the camera, and some witnesses might be intimidated, others may act more carefully if they know the public is watching, Kozinski said in the article, co-written with his former law clerk Robert Johnson.

“Judges may avoid falling asleep on the bench or take more care explaining their decisions and avoiding arbitrary rulings or excessively lax courtroom management,” Kozinski said.

“Some witnesses may feel too nervous to lie,” he wrote. “Others may hesitate to make up a story when they know that someone able to spot the falsehood may hear them talk.”

Federal courts have long prohibited cameras, with a few exceptions. The appeals courts in San Francisco and New York televise some hearings. Kozinski’s court approved a pilot project in December 2009 authorizing trial judges in the nine-state circuit to allow cameras at selected nonjury civil trials, but the experiment hit a roadblock in the Supreme Court.

Chief U.S. District Judge Vaughn Walker of San Francisco approved closed-circuit broadcasts to other federal courthouses of this year’s trial of a lawsuit challenging Prop. 8, California’s ban on same-sex marriage. He also said it could be videotaped for later posting on YouTube.

The appeals court approved the closed-circuit telecast, but the high court vetoed it just as the trial was about to start. A 5-4 majority said Walker had failed to give the public enough time to comment on the proposal and said cameras could have a chilling effect on the expert witnesses called to defend Prop. 8.

Any televising of federal trials should begin with a less controversial case, said the justices, who have rejected proposals to admit cameras to their own hearings.

Kozinski took a poke at the ruling in his article.

“At a time when we’ve had gavel-to-gavel coverage of both houses of Congress for over two decades, it’s hard to explain why the prospect of broadcasting a judicial trial to a courtroom across the country merits the emergency intervention of the Supreme Court,” he said.

All states allow cameras in at least some court proceedings. California leaves decisions on cameras at trials to Superior Court judges, who have rejected virtually all such requests since the histrionics of the O.J. Simpson murder trial in 1995.

A state Judicial Council committee of judges, lawyers and media representatives has recommended changing the rules and allowing cameras at trials unless the judge states specific reasons to exclude them, findings that media organizations could then appeal.

The council has invited public comments through Oct. 29 and plans to consider the proposal next spring.

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Supreme Court Justice Samuel A. Alito Jr. said in a Des Moines, Iowa speech that he opposed televising court action because lawyers would play to the cameras. -db

ABA Journal
October 1, 2010
By Debra Cassens Weiss

Justice Samuel A. Alito Jr. opposes televised Supreme Court arguments, and he explained why on Thursday: Lawyers would play to the cameras.

Alito said in a speech at Drake in Des Moines that cameras would have “a noticeable observer effect,” at least in cases attracting national interest, the Des Moines Register reports. In a speech outlining the history of oral arguments, he said lawyers at one time used theatrics to please the audience and it could happen again, if cameras are allowed.

“Unfortunately, those who advocate the televising of our arguments generally proceed on an assumption that I believe is incorrect,” Alito said. “And that assumption is that televising our arguments would not change the nature of the arguments.

“I disagree,” he said. “Whenever an event is televised, and the participants think that any sort of substantial audience is watching, their behavior is changed.”

Copyright 2010 American Bar Association     FAC Content Use Policy

A military judge who will preside over the hearing on the Fort Hood, Texas shootings denied a request to close the hearing to the public saying the victims and the families have the right to hear testimony. -db

The Reporters Committee for Freedom of the Press
September 17, 2010
By Rosemary Lane

A military officer rejected a defense request Thursday to close an upcoming hearing for the Fort Hood, Texas, shooting suspect after the defense claimed pre-trial publicity would impede a fair trial.

Col. James L. Pohl, the military officer presiding over the case, said the request to close the Oct. 12 hearing was too general and the defense needed to be more specific about why the entire session needed to be closed, according to Chris Haug, chief of media relations for Fort Hood public affairs. Pohl also said victims and families have a right to hear testimony, The New York Times reported.

Maj. Nadal Hasan, 40, is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the shootings at Fort Hood on Nov. 5, 2009.

John Galligan, Hasan’s lawyer, said the amount of media coverage will skew Hasan’s Article 32 hearing.

“The defendant’s rights in comparison to the media are paramount,” Galligan said. “If he wants to have his Article 32 hearing, it has to be done in context that will operate against his ability to gain a fair trial.”

Galligan said the media coverage has been enormous, citing a Time magazine cover with “Terrorist?” across Hasan’s face and President Barack Obama’s visit to Fort Hood.

“That kind of pre-talk publicity and coverage you don’t find in any of the other cases I’ve come in contact with in my criminal case career,” he said.

Galligan said he’s considering appealing the ruling.

The attorney also filed two other motions during the two hour session: One to exclude autopsy evidence from the hearing, which Pohl denied, and another to delay the hearing one month to develop mitigating evidence, which Pohl will visit at a later date, Haug said.

Galligan said his team just retained an independent psychiatrist and needs time to go over evidence.

“If the purpose of this is to allow discovery, we haven’t been given all the discovery we need,” he said. “If it will only operate to already inflame a community that is already totally opposed to Maj. Hasan. The prejudice in this case is overwhelming.”

The Oct. 12 hearing is expected to last about four weeks, said Haug.

Copyright 2010 The Reporters Committee for Freedom of the Press     FAC Content Use Policy

Despite his vote against allowing closed circuit broadcast of the same-sex marriage trial in San Francisco in January, Supreme Court Justice Antonin Scalia says he favors cameras in courts. -db

San Francisco Chronicle
September 18, 2010
By Bob Egelko

Scalia is the longest-serving justice on the current court. He spoke to an auditorium filled with law students at University of California Hastings College of the Law on the 24th anniversary of his unanimous Senate confirmation, after his appointment by President Ronald Reagan.

He said most of his views haven’t changed since then, but one exception is the idea of allowing cameras in the court, which he supported when he was appointed. The issue resurfaced in January when a 5-4 majority, including Scalia, vetoed a federal judge’s plan to allow closed-circuit televising of the same-sex-marriage trial in San Francisco.

“If I really thought it would educate the American people, I would remain in favor of it,” he told the students. But instead of educational gavel-to-gavel coverage, he said, most people would see 30-second snippets on the nightly news that would “distort the public perception of the court.”

Click here for the full story

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The California Supreme Court agreed to broadcast oral arguments on television and Internet on Wednesday,  September 8 in the case challenging Arnold Schwarzsnegger’s authority to impose mandatory two-day-a-month unpaid furloughs on state employees -db

Metropolitan News-Enterprise
September 3, 2010
By a Met News Staff Writer

The California Supreme Court said yesterday that it will broadcast oral arguments Wednesday on television and on the Internet involving cases challenging the governor’s authority to furlough state employees and to use his veto power to reduce budget appropriations.

Arguments in the first case, Professional Engineers in California Government v. Schwarzenegger, S183411, are set to take place from 9 a.m. to 10:30 a.m. They will be followed by arguments in St. John’s Well Child and Family Center v. Schwarzenegger, S181760, from 10:30 a.m. to noon.

The California Channel, a public affairs cable television network, will broadcast the arguments live on cable television and on its website, www.calchannel.com. It will also provide archived broadcasts of the arguments on its website.

The arguments will be part of the court’s oral argument calendar session set to take place Tuesday and Wednesday in the Supreme Court Courtroom on the Fourth Floor of the Earl Warren Building in San Francisco.

In Professional Engineers, the justices are slated to consider whether Gov. Arnold Schwarzenegger had authority on Dec. 19, 2008 to unilaterally impose by executive order a mandatory two-day-a-month unpaid furlough for state employees. They will also hear arguments on whether the Legislature’s February 2009 enactment of the revised Budget Act of 2008 and the initial Budget Act of 2009 affected the validity of the executive order or the remedy that the employee organizations may be entitled to obtain.

St. John’s presents the issue whether the governor’s line item veto power “to reduce or eliminate one or more items of appropriation”—set forth in Article IV, Sec. 10(e) of the California Constitution—applies to provisions in a mid-year emergency bill that reduces appropriation amounts of a previously enacted budget bill.

Copyright 2010 Metropolitan News Company    FAC Content Use Policy

A superior court judge ruled that the Los Angeles Times could publish photos of a murder defendant taken with the court’s permission. The judge said the attempt to bar the photos was unconstitutional prior restraint. -db

Metropolitan News-Enterprise
August 20, 2010
By Kenneth Ofgang

A Los Angeles Superior Court judge’s order barring publication of photos that were taken of a defendant in the courtroom with the jurist’s permission is an unconstitutional prior restraint, the Court of Appeal for this district ruled yesterday.

Div. Five, in an opinion by assigned Los Angeles Superior Court Judge Sanjay T. Kumar, ordered that Judge Hilleri G. Merritt’s order barring publication of the photos of Alberd Tersargyan be vacated. Merritt revoked the order late yesterday in a minute order stating that both the order prohibiting the photography, and the order of the following day denying the motion of the Los Angeles Times to vacate the ban, were vacated “nunc pro tunc.”

Court counsel Frederick R. Bennett declined to comment as to why the nunc pro tunc language was included.

The appellate court rejected the public defender’s assertions that the photographer took the pictures unlawfully because a prior order—made by another judicial officer, at an earlier hearing, in response to a request by a different news organization—barred taking pictures of the defendant, due to identification issues.

Kumar pointed out in a footnote that Merritt stated in open court that she signed an order that permitted news cameras, before the prosecutor commented on the prior order.

Balancing Test

By engaging in a balancing test and concluding that defendant’s right to a fair trial overrode the media’s First Amendment right, Kumar said, the trial judge failed to follow the many U.S. Supreme Court, California Supreme Court, and California Court of Appeal cases holding that a strong presumption lies against prior restraints.

As for the defense’s asserted interest in protecting the defendant from prejudice resulting from being photographed in jail garb, Kumar wrote:

“Although the original order may have been issued to preserve the integrity of eyewitness identification, the record does not demonstrate it is substantially probable that either the integrity of the identifications or the defendant’s due process rights are at risk absent the prior restraint.

For example, the record is devoid of evidence that eyewitnesses expressed uncertainty over their identification, that they have not already seen photographs of the defendant in the media, or that their ability to accurately identify the perpetrator of the offenses would be threatened by the publication of the photographs. Indeed, given the fact that the media has previously published photographs of the defendant in connection with the charges in this case, it is not probable that defendant’s right to a fair trial would be threatened by the publication of additional photographs.”

Deputy Public Defender Albert Menaster, who argued the case for the defendant, complained that the compressed schedule set by the Court of Appeal—the alternative writ of mandate was issued Aug. 9, argument was held Aug. 10, the public defender was given until Aug. 16 to file a brief, and the Times was given until this past Wednesday to reply—did not allow the development of a full record.

Menaster lamented that “the court selected a newspaper’s right to publish photos over the defendant’s right to a fair trial,” but said he did not believe that any further remedies would be available, particularly in light of Merritt’s decision to vacate her order immediately, rather than wait for the appellate court’s order to become final, which takes three days under court rules.

Times Lawyers’ Statement

The firm of Davis Wright Tremaine LLP, which represented the Times, issued the following statement:
“We’re heartened that the Court of Appeal lifted the unconstitutional prior restraint against The Los Angeles Times. The Court reaffirmed the sound rule that restraining the press from publishing photographs that a photographer has taken in open court is a ‘classic prior restraint’ that violates the First Amendment. The interest asserted by the trial court and Mr. Tersargyan’s counsel—witness identification—cannot possibly justify censoring the press when photographs of the criminal defendant in connection with the charges already have been published on the Internet and on television.”

The unpublished opinion in Los Angeles Times Communications LLC v. Superior Court (People) appears in today’s Slip Opinion Supplement at 10 S.O.S. 4938.

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The California Court of Appeal ordered a Superior Court judge to reverse her ban barring the Los Angeles Times from publishing the courtroom photos of a murder suspect. -db

Los Angeles Times
August 9, 2010
By Andrew Blankstein

The California Court of Appeal ordered a Los Angeles County Superior Court judge Monday to abandon her order barring the Los Angeles Times from publishing images of a man accused of a quadruple homicide or show a compelling reason by Tuesday why the images should not be printed.

Judge Hilleri G. Merritt allowed — then barred — L.A. Times photographer Al Seib from publishing several dozen images taken of defendant Alberd Tersargyan.

Jeff Glasser, an attorney representing The Times, argued in a hearing last week that neither the U.S. Supreme Court nor the California Court of Appeal has ever upheld a prior restraint even when faced with imperatives such as national security, or a competing interest such as the right to a fair trial. He also noted that images of Tersargyan had already been shown on television news broadcasts and on the Internet.

Despite decades of 1st Amendment precedent barring prior restraints, Merritt said she was concerned about issues involving the ability of witnesses to identify a suspect in the case, interfering with the defendant’s right to a fair trial.

Although images of Tersargyan had been made public, pictures showing him wearing a jail jumpsuit in the cage-like lockup area of her courtroom could be more prejudicial to potential witnesses, Merritt said.

Tersargyan is awaiting a trial in the killing of a woman in Los Angeles’ Little Armenia neighborhood in March. He was charged last week with the 2008 slaying of the woman’s husband and 8-year-old daughter, as well as a fatal sniper-style attack this year on a prostitute on Sunset Boulevard.

Before Tersargyan’s arraignment, Merritt had approved a written request by Times photographer Al Seib to take pictures of the suspect. Seib notified the court bailiff, the clerk and a spokeswoman for the Los Angeles County district attorney’s office.

During the hearing and after Seib had already begun photographing Tersargyan, Los Angeles County Deputy Dist. Atty. Eric Harmon reminded the judge about the prior order.

Harmon told the judge it was possible the pictures could affect witnesses’ testimony but also said he did not believe publishing the pictures would prejudice witnesses.

Tersargyan’s defense counsel argued that the pictures could prejudice witnesses although they did not provide concrete examples of the potential harm.

Allan Parachini, a spokesman for the L.A. County Superior Court, said no immediate decision had been made in response to the appeals court’s order

Copyright 2010 Los Angeles Times