A U.S. district judge is no longer asking Chicago reporters to provide notes of interviews with a juror who did not admit to two felony convictions in filling out court papers prior to serving in a high profile trial.

The trial concerned a charge that a man tried to extort money from a film producer trying to buy a share of the state Teacher Retirement System pension fund. -db

From the Chicago Sun-Times, December 15, 2011, by Abdon M. Pallasch.

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The Chicago Tribune is deciding its course of action after a federal judge ordered thier reporter to turn over notes and other document in the case of a juror who concealed her criminal record in the William Cellini trial.

Cellini was convicted last month for attempted extortion. The Tribune suggested that the court should first question the woman’s fellow jurors, family and other close associates. -db

From the Chicago Tribune, December 13, 2011, by Stacy St. Clair.

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A federal district judge held that a blogger could remain anonymous since his First Amendment rights were paramont to discovery needs in a defamation case.

The “Skywalker,” as the blogger is known, is charged with defaming the spiritual leader of the Art of Living Foundation.

From the Courthouse News Service, November 16, 2011, by Maria Dinzeo.

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The California Supreme Court ordered the state appeals court to reconsider a case of a Sacramento juror required to release Facebook posts he made during a 2010 criminal trial. Both the juror and Facebook challenged subpoenas of the posts. -db

From The Reporters Committee for Freedom of the Press, April 1, 2011, by Rachel Costello.

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The 2nd Circuit U.S. Court of Appeals ruled that it was improper to restrict cross-examination of a reporter invoking his privilege not to testify. The court said that the restriction violated the defendant’s right to confront witnesses. The reporter from the Wall Street Journal was forced to testify from his knowledge gained in a series of Pultizer-Prize-winning stories stories about backdating stock options.

Writing for The Reporters Committee for Freedom of the Press, Kristen Rasmussen said, “Where the trial court erred was in its limitation on the scope of cross-examination of Forelle [the reporter], the court ruled. Specifically, the lower court mistakenly treated Forelle’s interest in refusing to disclose information obtained during news gathering and dissemination as a competing constitutional interest to be balanced against Treacy’s [the defendant's] Sixth Amendment Confrontation Clause right. The court noted that the reporter’s privilege in the Second Circuit is derived from the federal common law of privileges, not the First Amendment. Thus, the standard required to overcome the privilege on cross-examination is the same one applied to direct questioning, the court ruled.”  -db

From The Reporters Committee for Freedom of the Press, March 11, 2011, by Kristen Rasmussen,

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After a jury foreman wrote on Facebook during the trial of alleged gang members that the proceedings were boring, defense attorneys issued subpoenas to Facebook and the foreman for the postings.

The judge ordered the foreman to authorize Facebook to release the postings. That order was upheld by the appeals court without comment. -db

From The Reporters Committee for Freedom of the Press, February 11, 2011, by Rachel Costello with additional reporting by Lyndsey Wajert.

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A Sacramento Superior Court judge gave a juror 10 days to comply with an order to turn over postings he made on Facebook last year during a trial concerning a gang beating. Lawyers for the Killa Mobb gang are asking for the postings to make sure that the juror was not biased.

A lawyer for the juror Arturo Ramirez said that surrendering the postings would violate the privacy rights of his client and promised to appeal the order. -db

From the Sacrament Bee, February 6, 2011, by Andy Furillo.

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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.

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

The U.S. Court of Appeals in Washington, D.C. found that the federal government had compelling arguments for withholding documents requested by a Guantanamo detainee. -db

JURIST
October 09, 2010
By Daniel Makosky

[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Wednesday that governmental interests in the protection of sensitive information supersede a detainee’s request for its disclosure.

The decision overturns the district court’s earlier finding in favor of Guantanamo Bay [JURIST news archive] detainee Djamel Ameziane [advocacy materials], who claims to have been subjected to torture [AP report] and is seeking release. In a heavily redacted opinion, the court found that insufficient deference had been paid to the government’s assertions that releasing the materials would compromise national security and foreign policy interests.

Ameziane is also awaiting the outcome of a complaint filed against the US [JURIST report] in August 2008 before the Inter-American Commission on Human Rights (IACHR) [official website], which alleges that he has been tortured, given inadequate medical treatment and denied other basic rights.

The complaint contends that Ameziane’s treatment violates conditions of the American Declaration of the Rights and Duties of Man [materials] and that he has been denied timely review of his habeas corpus petition by the US, despite the US Supreme Court ruling in Boumediene v. Bush [opinion text; JURIST report] that detainees have the right to bring such petitions.

Copyright 2010 JURIST      FAC Content Use Policy

In a brief filed in court this week, the Los Angeles Times argued that their photographer acted with the court’s permission in taking photos of a defendant charged with murder, and that any attempts to prevent publication of the photos constituted prior restraint. -db

Metropolitan News-Enterprise
August 19, 2010
By a MetNews Staff Writer

A Los Angeles Times photographer who took dozens of photographs of a defendant in a downtown courtroom two weeks ago acted properly, in accordance with the court’s permission, the newspaper argued yesterday in a brief to the Court of Appeal.

Attorneys for the newspaper, in a reply to a brief filed Monday by the Public Defender’s Office, reiterated previous arguments that nothing in the conduct of the photographer, Al Seib, warranted Judge Hilleri Merritt’s subsequent order barring publication of the photographs. The Times has characterized the judge’s order as imposing an invalid prior restraint in violation of the First Amendment and the California Constitution.

The attorneys representing Alberd Tersargyan had argued in their brief that Seib violated an earlier order—issued by a different judicial officer in response to a request by a different news organization, related to a different proceeding in the case—that barred photographing the defendant, due to identification issues.

They further argued that the Judicial Council form order signed by Merritt did not authorize photographing Tersargyan because a box on the form indicating whether a request has been granted or denied was not checked, and defense attorneys were not notified that it had been entered.

The newspaper’s attorneys yesterday scoffed at those arguments, asserting that the prior order by Commissioner Alan Rubin was irrelevant to the Aug. 4 hearing before Merritt, that any imperfection in the form was irrelevant because Merritt repeatedly acknowledged in open court that she had granted permission for Seib to take the pictures, and that defense lawyers had notice because they were present and saw the photographer take the pictures.

The newspaper’s lawyers—Kelli L. Sager, Alonzo Wickers IV, and Jeff Glasser of Davis Wright Tremaine LLP and in-house counsel Karlene Goller—distinguished Marin Independent Journal v. Municipal Court (1993) 12 Cal.App.4th 1712, cited by the defense. The Court of Appeal in that case upheld the seizure of film from a photographer who did not have permission to photograph the proceedings.

The photographer claimed to have understood permission to be granted because “when she entered the courtroom, she was given a wink and a nod by the courtroom bailiff.”

The case is an “outlier,” the Times lawyers said, because no other case has found allegations of “unlawful” media behavior to warrant prior restraint. Nor are the facts analogous, they asserted, because Seib’s actions were entirely proper.

Merritt’s statements, both at the Aug. 4 hearing and at a hearing the next day on the Times’ motion to vacate the ban on publication, make clear that “there is no ambiguity and no dispute that she intended to grant, and did grant, permission for The Times to photograph the proceeding.”

The attorneys said it was “grasping and pointless” to argue about the contents of the form because it was undisputed not only that the judge said Seib could take the pictures, but that he confirmed this with the baliff and clerk, who checked back with the judge and obtained confirmation that she had approved the photography, “…Mr. Seib’s behavior exhibits a diligence that contrasts sharply with the inaction of Mr. Tersargyan’s lawyer, who said nothing to Respondent about a prior order despite knowing that Mr. Seib was present to photograph the proceedings, and did not object when Mr. Seib took 45 photographs during the first 11 minutes of the hearing,” the attorneys insisted.

Copyright 2010 Metropolitan News Company

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

A judge approved a written request to photograph a murder suspect but when reminded in court about a prior order banning photography ordered the photographer not to publish his photos. -db

Los Angeles Times
August 5, 2010
By Andrew Blankstein

A judge issued an unusual order Wednesday in which she told a newspaper photographer not to publish pictures after granting him permission to take them.

Legal experts said prohibiting publication of an image that a photographer had permission to take could violate the 1st Amendment.

The case involved Alberd Tersargyan, 60, who was in court for a scheduled arraignment on multiple murder counts in connection with the slayings of four people — including three members of the same family — from 2008 to 2010.

Judge Hilleri G. Merritt approved a written request by Los Angeles Times photographer Al Seib before the arraignment to take pictures of Tersargyan.

But during the hearing — after Seib had already begun photographing Tersargyan — Los Angeles County Deputy Dist. Atty. Eric Harmon reminded the judge about a prior order banning photography and video.

Harmon said it was possible the pictures could affect potential eyewitness testimony but didn’t object to the photographs.

Deputy Public Defender Patricia Mulligan told Merritt she objected to having her client photographed.

Merritt chastised both sides for not raising the issue earlier but then told Seib to immediately stop taking pictures and ordered him not to publish the images he had already taken.

Merritt would not comment on whether the ruling amounted to a prior restraint of the press in violation of the 1st Amendment.

“The record clearly reflects concerns expressed by Judge Merritt in the balance between a fair trial and free press issues,” said Los Angeles County Superior Court spokesman Allan Parachini.

But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said there was no legal reason why the judge should not have allowed the pictures to be published absent a demonstration of “direct, immediate, physical harm that is not speculative.”

“The judge has the ability at any time to order the photographer out of the courtroom,” Dalglish said. “What the judge does not have the ability to do, based on U.S. Supreme Court precedent, is bar the photographer from publishing the information he lawfully collected.”

“The U.S. Supreme Court has never, ever, not once, upheld a prior restraint on publication,” Dalglish noted.

Tersargyan, who is awaiting trial in the killing of a woman in L.A.’s Little Armenia neighborhood in March, was charged Tuesday with the 2008 slaying of the woman’s husband and 8-year-old daughter, as well as the fatal, sniper-styled attack on a prostitute on Sunset Boulevard this year.

Copyright 2010 Los Angeles Times

While opening the door to a new trial for former Enron CEO Jeffrey Skilling, in a 6-3 vote the U.S. Supreme Court rejected Skilling’s argument that pre-trial publicity made a free trial impossible. -db

The New York Times
June 24, 2010
By Adam Liptak

WASHINGTON, D.C. — Ruling for two prominent corporate executives in prison for fraud, the Supreme Court on Thursday dramatically narrowed the scope of a law often used by federal prosecutors in corruption cases.

The justices were unanimous in calling at least the broadest interpretation of the law, which makes it a crime “to deprive another of the intangible right of honest services,” unconstitutionally vague. The decisions call into question the convictions of Jeffrey K. Skilling, a former chief executive of Enron, the Houston energy company, and Conrad M. Black, the newspaper executive convicted of defrauding his media company, Hollinger International.

The decisions may also have implications for many other cases, including those of former Gov. Rod R. Blagojevich of Illinois, whose trial for violating the law is underway in Chicago, and Joseph L. Bruno, once one of the most prominent politicians in New York who was convicted of federal corruption charges in December.

The law has been the subject of frequent criticism in the lower courts for giving potential defendants too little guidance and prosecutors too much discretion.

“How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit, in New York, asked in a 2003 dissent.

Justice Ruth Bader Ginsburg, in writing the majority decision in both the Skilling and Black cases on Thursday, said the law must be limited to the core offenses of bribes and kickbacks. Mr. Skilling’s conduct, she said from the bench, “entailed no bribe or kickback.”

The court sent both cases back to the lower courts. Mr. Skilling’s lawyers have argued that a decision in his favor should void his entire conviction, which was based on several theories. That, Justice Ginsburg wrote, is “an open question.”

In Mr. Black’s case, the justices instructed the lower courts to reconsider his conviction in light of Thursday’s decision.

Three members of the court, Justice Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, would have gone further than the majority and struck down the law entirely.

By a separate 6-to-3 vote, the justices rejected a second challenge from Mr. Skilling, who said that he had not received a fair trial in Houston in 2006, given the widespread prejudice against Enron.

In a brief, unsigned opinion, the justices also returned a third honest-services cases to the lower courts for further consideration, this one involving a former Alaska legislator, Bruce Weyhrauch, who did not disclose soliciting work from a company with business before the Legislature. Mr. Weyhrauch had argued that the federal honest-services law should not apply in public corruption cases where no violation of a state law was alleged.

After a military judge issued a gag order in the trial of a man accused of killed 13 people at Fort Hood last year, the civilian lawyer for the man started a blog to make his case for the suspect. -db

Jurors can expect to be reminded of the limits of their free speech rights as a federal court body has released revised model jury instructions specifically forbidding jurors from using technology and the social media to communicate about cases in progress. -db

Sponsors of Prop. 8 the ballot measure that banned same-sex in California say that television coverage of the court trial in San Francisco in January would result in harassment and intimidation of witnesses and other participants. -DB

The Supreme Court granted review of the case of former Enron CEO Jeffrey Skilling convicted in a high profile trial for his role in Enron’s collapse. Skilling claimed that the publicity surrounding the trial created prejudice in the jury and that the federal law criminalizing “honest services” fraud was ”unconstitutionally vague.” -DB

A U.S. district judge closed the Blackwater manslaughter pretrial hearings to the public, he said, to enable a fair trial by shielding witnesses and potential jurors from a flurry of media reports. -DB

The Washington Post
October 15, 2009
By Del Quentin Wilber

A federal judge blocked the public Wednesday from attending a critical set of pretrial hearings in the prosecution of five U.S. security contractors accused of killing 14 unarmed Iraqi civilians in 2007.

The hearings, which are expected to last through next week, will examine whether the government improperly used immunized statements by the Blackwater Worldwide security guards in its investigation. The guards gave the statements to the State Department shortly after the controversial shooting Sept. 16, 2007, in a busy Baghdad square.

U.S. District Judge Ricardo M. Urbina said Wednesday that he was closing the hearings because he wanted to shield witnesses and potential jurors from pretrial publicity. He said he wanted to ensure the guards a fair trial.

The hearings in the District’s federal court were not listed on the public docket, and filings by prosecutors and defense attorneys over the immunity issue have been sealed. A Washington Post reporter learned about the hearings several weeks ago and was told they would be open to the public. Last week, a court clerk told The Post that Urbina intended to close the hearings.

In a letter Tuesday, The Post asked Urbina to reconsider. Post attorney James McLaughlin said the court should have put the proceedings on the open docket and given the public an earlier chance to challenge the basis for the closure of the hearing. He said concerns about the impact of pretrial publicity were “highly speculative” unless supported by factual findings in open court.

Urbina denied The Post’s request. He said the rights of the five guards to a fair trial outweighed the public’s interest in attending the proceedings. He said he was concerned about how news accounts of the statements might affect witnesses, some as far away as Baghdad.

The judge added that he did not see a way to partially open the hearings because they will deal heavily with grand jury information. Grand jury proceedings are, by law, kept secret.

The five guards — Paul Slough, Nicholas Slatten, Evan Liberty, Dustin Heard and Donald Ball — are charged with voluntary manslaughter and weapons violations in the killing of 14 civilians and the wounding of 20 others. The Justice Department alleges that the guards unleashed an unprovoked attack on Iraqi civilians in Nisoor Square while in a convoy. One guard, Jeremy P. Ridgeway, has pleaded guilty and is expected to testify against the others.

Blackwater, which has since renamed itself Xe, had a contract to provide security for the State Department in Iraq.

The Justice Department’s investigation has been complicated by many factors.

Agents and prosecutors were barred from gleaning information from immunized statements the guards gave to officials with the State Department Bureau of Diplomatic Security. When officials took the statements from the guards, the State Department was under pressure to quickly assess what happened.

The proceedings underway, known as Kastigar hearings, will probe how well investigators gathered evidence without being tainted by those immunized statements. If the judge finds the government’s case is tainted, he might throw out the indictment.

Copyright 2009 The Washington Post Company

 In the Chauncey Bailey murder, Superior Court Judge Morris Jacobson released 800 pages of grand jury testimony and refused defense pleas to impose a gag order on lawyers. -DB

The Oakland Tribune 
July 31, 2009 
By Thomas Peele

OAKLAND — A judge on Thursday afternoon refused to impose a gag order on lawyers and others involved in the Chauncey Bailey murder case and also ordered the release of 800 pages of grand jury testimony.

Attorneys representing accused killers Yusef Bey IV and Antoine Mackey opposed both of Superior Court Judge Morris Jacobson’s decisions.

Also Thursday, Bey IV and Mackey each pleaded not guilty to triple murder charges.

They were indicted in April after Devaughndre Broussard, a follower of Bey IV’s at the defunct Your Black Muslim Bakery, admitted he killed Bailey and another man at Bey IV’s order.

Broussard also told a grand jury that Mackey admitted to him killing another man, Michael Wills, also at Bey IV’s order. Broussard also testified that Mackey drove the getaway vehicle in the Bailey slaying. 
Jacobson said he expects them to stand trial sometime next year.

Defense lawyers, citing the Web site of the Chauncey Bailey Project, a coalition of media organizations that has published dozens of stories about the killing, asked Jacobson to make a permanent and provisional gag order in the case.

Gary Sirbu, Mackey’s lawyer, said he believed both defendants’ rights to a fair trial have been jeopardized.

But Jacobson said the project’s work, “while very biased against” Bey IV and Mackey, did not approach the level of “clear and present danger or imminent threat” to their rights to a fair trial.

“I am unaware of a circus atmosphere,” the judge said. “I am not seeing cars being burned in the street.”

Jacobson urged the lawyers to agree among themselves not to talk with reporters and honor such an agreement.

Bey IV’s lawyer, Lorna Brown, said she was worried that the release of the grand jury transcript “puts us in a very difficult position” because the document will show one-sided testimony against the defendants.

“What you need to is to say to the press is ‘my client’s not guilty,” Jacobson said.

Brown left the courtroom declining to speak to reporters who asked her for interviews.

Broussard told grand jurors that Bey IV wanted Bailey dead to stop him from writing an article for the Oakland Post about the bakery’s troubled finances and internal strife.

“If this killing was done to silence the work of a reporter, then this killing was one of the worst sorts I can imagine,” Jacobson said.

Jacobson also lifted a temporary gag order he issued June 16 on Bailey Project attorney Duffy Carolan. He imposed it after Carolan told a Chauncey Bailey Project reporter that the prosecutor in the case, Christopher Lamiero, announced during a meeting in Jacobson’s chambers that the death penalty would not be sought in the case.

Carolan was under no restriction to share the information. The reporter was her client.

Jacobson also ordered the release of the transcript of the grand jury testimony of Broussard and 14 other witnesses in April. He agreed to the release last month but gave defense lawyers a chance to appeal.

A state appellate panel on Monday summarily rejected an appeal by Sirbu.

Court clerks said Thursday they expect the 800-page document to be available to the public Monday.

To learn more about the Chauncey Bailey Project, go to http://www.chaunceybaileyproject.org.

Copyright 2009 Bay Area News Group