Victim s Rights v. The Media. Jani S. Tillery, Esq. DC/MD Crime Victims Resource Center

Similar documents
No. IN THE SUPREME COURT OF THE UNITED STATES. STATE OF FLORIDA, Petitioner, THE SARASOTA HERALD-TRIBUNE, et al., Respondents.

Appellate Division, First Department, Courtroom Television Network LLC v. New York

THE STATE OF NEW HAMPSHIRE

STATE OF WISCONSIN DEPARTMENT OF JUSTICE

Robert Morton v. Michelle Ricci

SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA Civil Division

Step-by-Step Commentary Accompanying Records Request Flowchart for Justice and Municipal Courts March 2014

Order and Guidelines for Photographing, Recording, and Broadcasting in the Courtroom

COURT DOCUMENTS AND THE FOIA Annual Meeting August 25, 2011

Case 1:15-mc ESH Document 17 Filed 05/18/15 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Knowledge, Skills & Abilities. FOIA Redaction Workshop Denver, Colorado. Instructors. Scott Hodes, Esq.

Fair Trial and Free Press: The Courtroom Door Swings Open

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [COUNTY NAME]

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA. Plaintiff, Defendants.

Step-by-Step Commentary Accompanying Records Request Flowchart for Justice and Municipal Courts October 2011

THE AFTERMATH OF MARYLAND V. CRAIG: APPLYING IT TO PRACTICE. Ashley Nastoff, J.D.

COUNSEL JUDGES. Donnelly, J., wrote the opinion. WE CONCUR: MACK EASLEY, Chief Justice, WILLIAM R. FEDERICI, Justice. AUTHOR: DONNELLY OPINION

MOTION FOR PROTECTIVE ORDER PURSUANT TO FED.R.CRIM.P.16(d)(1)

IN THE EIGHTH JUDICIAL CIRCUIT OF FLORIDA ADMINISTRATIVE ORDER NO COURT REPORTING SERVICES PLAN

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) )

THE HONORABLE ERIN OTIS, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge,

SEALING COURT RECORDS MD RULES

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham

Case 3:16-cr TJC-JRK Document 31 Filed 07/18/16 Page 1 of 8 PageID 102

THE CONSTITUTION IN THE CLASSROOM. TEACHING MODULE: Tinker and the First Amendment [Elementary Grades]

-What are the five basic freedoms that are listed in the 1st Amendment?

Case 1:14-cv GK Document 31 Filed 12/12/16 Page 1 of 11

Case 8:15-cr DOC Document 345 Filed 07/25/17 Page 1 of 11 Page ID #:6336

Access to Trial Exhibits in Civil Suits: In re Reporters Committee For Freedom of the Press

DEPARTMENT OF VETERANS AFFAIRS Office of the General Counsel Washington DC APR n

SP00-3 Sealed Records Procedures Appellate and Trial Court Rules Standards for sealing. Proposal applies to civil and criminal proceedings

If municipal court records are not subject to the PIA, can the public get these records?

NOS , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNDER SEAL, PETITIONER-APPELLANT,

American Society of Access Professionals

vs. PHILLIP ALEXANDER ATKINS, Appellee. [December 1, denying collateral relief pursuant to Florida Rule of Criminal Procedure

Case 5:13-cv JLV Document 113 Filed 07/21/14 Page 1 of 7 PageID #: 1982

APPELLATE COURT OF THE STATE OF CONNECTICUT AC WILLIAM W. BACKUS HOSPITAL SAFAA HAKIM, M.D.

Supreme Court of the United States

Judges and the Media. College for New Judges National Center for Juvenile and Family Court Judges

Case 1:18-cv Document 1 Filed 02/08/18 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

No CONSOLIDATED WITH Nos & IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT H. RAY LAHR, Plaintiff-Appellee,

PROCESSING FOIA REQUESTS

The First Amendment. This course is fundamentally a study of the First Amendment freedoms and how they apply to the media.

DISTRICT OF COLUMBIA COURT OF APPEALS. No. 97-CF-469. Appeal from the Superior Court of the District of Columbia

District Attorney's Office v. Osborne, 129 S.Ct (2009). Dorothea Thompson' I. Summary

Municipal Records And Open Records. Zindia Thomas Assistant General Counsel Texas Municipal League

Case 0:12-cv WJZ Document 7 Entered on FLSD Docket 12/13/2012 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Note: New caption for Rule 1:38 adopted July 16, 2009 to be effective September 1, 2009.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Child Victims and Child Witnesses Rights in Federal Court December 2014

Chapter III ADMINISTRATIVE LAW. Administrative law concerns the authority and procedures of administrative agencies.

Supreme Court of the United States

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Constitution. Structure and Principles

Re: Request under the Freedom of Information Act. Dear Mr. Marquis,

Case 1:06-cv RBW Document 17 Filed 05/10/2007 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE DISTRICT COURT FOR OKLAHOMA COUNTY::U1 STATE OF OKLAHOMA MOTION AND SUPPORTING BRIEF FOR PERMISSION TO TELEVISE COURT PROCEEDINGS

UNITED STATES DISTRICT COURT

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

IN THE Supreme Court of the United States

Case 1:13-cv KBJ Document 21 Filed 09/06/13 Page 1 of 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Events such as the fatal

Illinois Official Reports

GUIDANCE No.25 CORONERS AND THE MEDIA

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:12-cv JAL Document 93 Entered on FLSD Docket 02/19/2013 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

DANTAN SALDAÑA, Plaintiff/Appellant, No. 2 CA-CV Filed July 21, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STIPULATED PROTECTIVE ORDER

2017 PA Super 170. OPINION BY OTT, J.: Filed: May 31, David Smith appeals from the judgment of sentence imposed on

American Society of Access Professionals

Civil Liberties and the Internet. Timothy M. Donoughue July 16, 2004

Bill of Rights! First 10!!! What were the basic rights promised in the Bill of Rights?

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

COMMONWEALTH OF MASSACHUSETTS. SUFFOLK, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT

Case 1:10-cv RMU Document 25 Filed 07/22/11 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

FOIA Exemptions 6 & 7C Personal Privacy Exemptions

Explanation of Notes. Section 2 Definitions

MEDIA INTERVENOR RESPONDENTS MOTION TO INTERVENE TO BE HEARD IN RESPONSE TO PETITION

H.R. 2093, Representative Meehan s Grassroots Lobbying Bill

Criminal Law Table of Contents

William Thomas Johnson v. State of Maryland, No. 2130, September Term, 2005

Michelle Hetzel v. Marirosa Lamas

PROCEDURAL BACKGROUND

THE CONSTITUTION IN THE CLASSROOM

IN THE SUPREME COURT OF THE STATE OF FLORIDA SUPREME COURT CASE NO. SC TH DCA CASE NO. 4D

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHAT EVERY IN-HOUSE COUNSEL NEEDS TO KNOW

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. EDWARD TUFFLY, AKA Bud Tuffly, Plaintiff-Appellant,

Nos , , PHILIP MORRIS USA INC. (ffk/a PHILIP MORRIS, INC.) and R.J. REYNOLDS TOBACCO CO., et al. and LORILLARD TOBACCO CO.

Case 5:10-cv JLH Document 12 Filed 03/11/2010 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

Vicinage Operations Revised Guidelines on Cameras in the Courts

Case 1:17-cv KPF Document 39 Filed 10/04/17 Page 1 of 19 MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION FOR AN ORDER TO SHOW CAUSE

Case 1:13-cv EGS Document 87 Filed 06/03/16 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IR E b"c ^VI^D JAN CLERKOFGOUR7 IUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO STATE OF OHIO NO Plaintiff-Appellee

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Appendix B. The Freedom of Information Act: Responding to a Request for Records

Re: Freedom of Information Act Request (Expedited Processing Requested)

Transcription:

Victim s Rights v. The Media Jani S. Tillery, Esq. DC/MD Crime Victims Resource Center

Objectives Recognize privacy issues that arise for victims in high profile cases. Discuss practical examples of opposition to media requests. Compare and contrast case examples. Provide overview of relevant case law.

When or how does the media get interested in obtaining case information? When case becomes of high interest to the public and the media. When the media has reported heavily on the case or the parties involved. If the victim has utilized the media to help bring light to their case or assistance in the criminal investigation.

What happens when victims want certain information kept from the media dissemination? Issues that cause privacy interests to arise: Protection of victims and victims families from details of the case. Preventing the public at large from learning details of the case. The age of the Media: internet, social media, tv, and film. Revictimization and trauma Association with crime or case

Victims relationship with the media Feelings toward the media vary. Victims want nothing to do with media. Victims want extensive media involvement. Media involvement within reason Gauge victims interests

State of MD et. al, v. WBAL-TV State of Maryland, et al., v. WBAL-TV 187, Md. App 135 (2009) 975 A.2d 909 (2009) Highly publicized case due to graphic gruesome nature of crime. State, Defendant, and Victim s Representative v. WBAL-TV Facts: Victim was brutally murdered by college student *Defendant gave a graphic detailed confession that was recorded and videotaped by detectives. Video /audiotape confession was played during the trial. Video and audio was also replayed a second time for the media. Defendant was convicted of 1 st degree murder, sentenced to life in prison.

Media s request for trial exhibits TV station wanted copies of the DVD and audiotape to broadcast. Motion to intervene and for access to trial exhibits Access to Court Records-Maryland Rules 16-1001, et. seq. Requested videotaped/audiotape confession of defendants.

Privacy interests of victim Victim s family wanted to protect victim s minor daughter from learning horrific details of the murder through the media. Wanted to tell victim s daughter at appropriate time. Fear of causing more distress and revictimization.

Filings by parties and participants Media filed Motion to Intervene and For Access to Trial Exhibits Defendant and State Opposed Victim filed Motion to Seal or Limit Inspection of the Case Record Media s motion granted State, Defendant, and Victim appealed

Maryland Constitution and Maryland Rules on Access to Court Records State constitutional provisions-maryland Constitution, Declaration of Rights, Art. 47(a), a victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process. Maryland Rules 16-1001 et. seq. Maryland Rule 16-1002(a). General policy. (a) Presumption of openness.- Court records maintained by a court or by another judicial agency are presumed to be open to the public for inspection. Except as otherwise provided by or pursuant to the Rules in this Chapter, the custodian of a court record shall permit a person, upon personal appearance in the office of the custodian during normal business hours, to inspect the record.

Maryland Rules Access to Court Records Maryland Rule 16-1003. Copies. Maryland Rule 16-1009. Court order denying or permitting inspection of case record. Maryland Rule 16-1005. Case records Required denial of inspection.

Victim s arguments opposing the media s request for access to trial exhibits Access and broadcast of tapes will violate state constitutional rights. Sensationalized media coverage of confession will revictimize and traumatize the family. Media will have the ability to broadcast and rebroadcast material. Exposure to the Defendant s depictions of the last hours of their loved one s life broadcasted on the airwaves will be disturbing to cause intensified pain Victim s Brief for Appellant, at 14, State of Maryland, et al., v. WBAL-TV 187, Md. App 135 (2009) 975 A.2d 909 (2009)

Media s argument in favor of access to DVD/audiotape The defendant s confession has been widely reported on by media. Victim s concerns speculative- already experiencing intense pain, any broadcast wouldn t be any worse than what has already been experienced. Request for only redacted info, in interest of family will not play most grotesque details. MD Rules give Media the right to access records. Not a first amendment issue No constitutional right to veto just because it may cause pain to the victim. The media should not be punished for exercising restraint. Public benefit to copying redacted trial exhibits.

Relevant case law New York Times Co. v. National Aeronautics and Space Administration, 782 F.Supp 628 (D.D.C. 1991) Facts Newspaper brought Freedom of Information Act (FOIA) action to obtain copies of voice recordings of astronauts last words aboard the space shuttle Challenger before its explosion. Argument NASA argued families of astronauts had a privacy interest exemption to FOIA request. Media argued that since transcript had been released no privacy interest existed in the tapes: the tape contains no such intimate details, as it records only technical observations during the shuttle s launch period..id at 631.

Relevant case law New York Times Co. v. National Aeronautics and Space Administration, 782 F.Supp 628 (D.D.C. 1991) Court s analysis: However, plaintiff is misconstruing the nature of the privacy interest implicated by disclosure of the tape. NASA does not dispute that substantive information contained in the tape is technical and nonpersonal. Rather the intimate detail that underlies the privacy interest in this tape is the sound of the astronauts voices... What the astronauts said may not implicate privacy interests; NASA has not argued that it does and has, in fact, provided the public with a transcript of the tape s substantive contents. But how the astronauts said what they did, the very sound of the astronauts words does constitute a privacy interest. This is the intimate detail that the Challenger families seek to protect from disclosure. Moreover this privacy interest is substantial. Id. at 631-632

Relevant case law National Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) U.S. v. Criden, 681 F.2d 919, (3 rd Cir. 1982) U.S. v. Amodeo, et. al. 71 F.3d 1044 (2d Cir. 1995) Cases cited by the media: Group W Television, Inc. v. State, 96 Md. App. 712 (1993)(Media sought videotape and still photographs for broadcast, played in open court. Court held tape could be made available after fair trial rights were no longer at issue) People v. Glogowski, 517 N.Y.S.2d 403, 407 (1987) In re CBS, Inc., 828 F.2d 958, 960 (.2d Cir. 1987) Lack of cases where crime victims oppose release of exhibits. Cases arise from objections from the State and Defendant. Cases precede many crime victims rights laws.

Opinion State of Maryland, et al., v. WBAL-TV 187, Md. App 135 (2009) 975 A.2d 909 (2009) Court s analysis: The interests of the victim must be weighed against the public s interest No compelling need to prohibit the media from obtaining copies of the dvd and audiotape.id 154, 920 Article 47 did not preclude the trial judge from exercising discretion regarding access to and the copying of exhibits at issue.id at 921.

Opinion State of Maryland, et al., v. WBAL-TV 187, Md. App 135 (2009) 975 A.2d 909 (2009) Court s analysis: Article 47 does not, however, provide victims with an absolute right to veto a request to access and copy court records. The issue remains one of balancing competing interests. Id. 158, 922-923 The Court stated that the lower court did not ignore the victims privacy concerns.

Opinion State of Maryland, et al., v. WBAL-TV 187, Md. App 135 (2009) 975 A.2d 909 (2009) Court s analysis: The court considered the victims interests Found the victim s argument that it would cause further victimization speculative, since the media did not seek the most grotesque portions of the DVD. Transcript had already been released, the airing of portions of the tapes would not do more harm that what the victims have already experienced.

Opinion State of Maryland, et al., v. WBAL-TV 187, Md. App 135 (2009) 975 A.2d 909 (2009) Holding: Lower court did not abuse its discretion by granting the Media s Motion for Access Lower court did not abuse its discretion by denying the Victim s Motion to Seal

U.S. v. Ingmar Guandique Motion of the Washington Post, The Associated Press, Gannett Company, And Reporters Committee for Freedom of the Press for Contemporaneous Access to Trial Exhibits and Completed Juror Questionnaires.(U.S. v. Ingmar Guandique, No. 2009 CF1 009230,(D.C. Super Ct., filed Nov. 3, 2010) Victim s Opposition in Part to Motion of the Washington Post, The Associated Press, Gannett Company, And Reporters Committee for Freedom of the Press for Contemporaneous Access to Trial Exhibits and Completed Juror Questionnaires. (U.S. v. Ingmar Guandique, No. 2009 CF1 009230,(D.C. Super Ct. filed Nov. 22, 2010)

Relevant Law U.S. Constitution, Amendment I, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances The Crime Victims Rights Act- 18, U.S.C. 3771(a)(8), a victim has the right to be treated with fairness and with respect for victim s dignity and privacy.

The Media s Request for Trial Exhibits Requested that the Court provide immediate and contemporaneous access to (1)all exhibits presented during the ongoing criminal trial Media s Motion, U.S. v. Ingmar Guandique, No. 2009 CF1 009230,(D.C. Super Ct. filed Nov. 3, 2010) Request made pursuant to the First Amendment and the common law. No demonstration of any compelling and overriding interest that would warrant delaying or blocking access by the public and the press to at least the bulk of these materials Media s Motion, U.S. v. Ingmar Guandique, No. 2009 CF1 009230,(D.C. Super Ct. filed Nov. 3, 2010)

Victim s Opposition to Media s Request for Trial Exhibits Victim opposed the release of trial exhibits. Photographs that contain skeletal remains and trial exhibits of clothing and shoes. Pursuant to the CVRA, 18 U.S.C. 3771 (a)(8), a crime victim has the right to be treated with fairness and with respect for the victim s dignity and privacy. The First Amendment generally grants the press no right to information about a trial superior to that of the general public. Nixon v. Warner Communications, 435 U.S. 589, 609 (1978) the right to inspect and copy judicial records is not absolute..id at 598

Victim s Opposition to Media s Request for Trial Exhibits the publishing of photographs depicting Chandra Levy s skeletal remains and clothes she was wearing when she went missing will likely inflict unnecessary pain and intensified pain on Mrs. Levy and the Court should exercise its discretion to limit access to those particular exhibits. Victim s Motion at 5, U.S. v. Ingmar Guandique, No. 2009 CF1 009230,(D.C. Super Ct. filed Nov. 22, 2010) Balancing media interests: among countervailing factors favoring nondisclosure are: (i)prejudicial pretrial publicity; (ii) the danger of impairing law enforcement or judicial efficiency; and (iii) the privacy interests of third parties. U.S. v. Salemme, et al 985 F. Supp. 193, 195 (D. Mass. 1997)(emphasis added)(citations omitted)

Victim s Opposition to Media s Request for Trial Exhibits The privacy interests of innocent third parties should weigh heavily in a court s balancing equation, U.S. v. Amodeo, et al. 71 F.3d 1044, 1050(2d Cir. 1995) Court s Ruling: Media s request for trial exhibits DENIED.

Comparisons and Contrasts Similarities of case examples: Victims did not want material dissimenated to the general public for similar reasons. High-profile cases Media requested permission to intervene to access court records. Victim asserted victims rights to prevent dissemination. One Victory, One Loss. Why? What was different?

Differences in case examples Access to Records rules vs. First Amendment State Constitution v. Crime Victims Rights Act Contemporaneous Request vs. Request after conviction and sentencing Media s broad requests for all trial exhibits vs. Media s narrowly tailored request for portions of dvd/videotape Court s possible view of victims risk for revictimization National media attention v. Local media attention Victims opposition to media s motion vs. Victims motion to seal (no opposition) Victims broad request to seal record vs. Victim s narrowly tailored request. Exhibits at issue: Defendants confession vs. Victim s remains and personal effects.

Conclusion An issue on the rise: Victims privacy interests vs. Media: Media supply for public s demand for intimate details of criminal cases ( Dateline, The First 48, 48 Hours, Snapped, Forensic Files, 20/20, E! Investigates, etc ) Mr Kercher does not give radio or TV interviews but in a brief exchange of e- mails he told BBC News that he considered the scenes "graphic" and he found them horrific and distressing. The producers are reported not to have spoken to any of the families, instead working from media reports and a 400-page report drawn up by the judge in the case. Article, Meredith Kercher's father attacks US film of her murder BBC News UK, http://www.bbc.co.uk/news/uk-12371487 (last visited June 8, 2011) Motion for Injunctive Relief from the Orange County Jail and/or the State of Florida from Releasing Information to the Media as it relates to Inmate Communication Between the Defendant Casey Anthony and Her Parents George and Cindy Anthony State of Florida v. Casey Marie Anthony, Case No. 2008-CF-015606-A-O ( 9 th Judicial Cir. Court of Florida, Orange County, filed May 4, 2011)

Contact information Jani S. Tillery, Esq. D.C./M.D. Crime Victims Resource Center 1411 K Street, N.W., Suite 1400 Washington, D.C. 20005 Main: (202) 638-0273 Direct: (240) 335-4020 jani@mdcrimevictims.org jani@dccrimevictims.org

Acknowledgments D.C. Crime Victims Resource Center services are funded by a grant from the National Crime Victim Law Institute (NCVLI), grant number 2008-DD-BX-K001 awarded by the Office of Victims of Crime, Office of Justice Programs, U.S. Department of Justice and a grant from the District of Columbia, Office of Victim Services, Grant Number 11-VAF-02. Points of view in this presentation and document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice, NCVLI and OVS.