California judge rules against court in attempt to block publication of courtroom photos

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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