IN THE DISTRICT COURT FOR OKLAHOMA COUNTY::U1 STATE OF OKLAHOMA p 1::; STATE OF OKLAHOMA, ) ) Plaintiff, ) VS. JEROME JAY ERSLAND ) ) Defendant. ) ) Case No. CF-2009-3199 Uty ) Hon. Tammy Bass-LeSure : c:::p r;rv, MOTION AND SUPPORTING BRIEF FOR PERMISSION TO TELEVISE COURT PROCEEDINGS Griffin Television OKC, LLC, owner of Oklahoma City television station KWTV ("News 9"), Local TV, LLC, owner of Oklahoma City television station KFOR ("News Channel 4") and Griffin Television Tulsa, LLC, owner of Tulsa television station KOTV ("The News on 6"), respectfully move this Honorable Court to enter an order permitting them to televise all court proceedings in this case including the preliminary hearing and any resulting jury trial. In support of this motion News 9, News Channel 4 and The News on 6 show this Honorable Court the following: 1. On Tuesday May 26, 2009, Oklahoma City Police reported that two individuals entered the Reliable Pharmacy at 5900 S Pennsylvania Ave. in Oklahoma City and attempted to rob pharmacy employees. During the alleged attempted robbery, 16 year old Antwun Parker, one of the alleged robbers, was shot and killed. 2. On May 27, 2009 Oklahoma County District Attorney David Prater held a news conference in which he announced to the news media and the public that his office was filing a First Degree Murder charge against Jerome Jay Ersland, a pharmacist at Reliable Pharmacy in Oklahoma City, in the death of Antwun Parker.
3. The District Attorney acknowledged in his news conference that his decision to charge Mr. Ersland could be questioned by members of the public as indicating a lack of support for the right of citizens to defend themselves with deadly force. At the news conference where he announced the First Degree Murder charge against Mr. Ersland, District Attorney David Prater said "I do not want the charging of Jerome Ersland with first-degree murder to have a chilling effect on any person legitimately in a position to defend themselves from an assailant." 4. The electronic and print news media in Oklahoma City, statewide and nationally, gave anticipated and appropriate full coverage to the story of the attempted pharmacy robbery, the shooting of one of the robbery suspects by a pharmacist, and the resulting criminal charges filed by the Oklahoma County District Attorney against pharmacist Ersland and against three individuals allegedly involved in the robbery. 5. Citizens have expressed strong and strikingly different opinions about the actions of Jerome Ersland in shooting Antvvun Parker, some decrying the pharmacist's actions and some supporting them as appropriate self-defense. 6. Both District Attorney David Prater and Ersland's attorney Irven Box have been open and available to the television, radio, print and internet news media as this story has developed since May 27, 2009. Mr. Box and his client have even appeared on the national broadcast of "The O'Reilly Factor" on Fox Television to discuss the shooting incident. 7. Counsel for News 9, News Channel 4 and The News on 6 have consulted with Oklahoma County District Attorney David Prater and Defendant Ersland's attorney Irven Box and are authorized to state that neither the prosecution nor the defense in this case object to the televising of these court proceedings through placement of pool cameras for the use of News 9, News Channel 4 and The News on 6 in the courtroom. 2
8. News 9, News Channel 4 and The News on 6 agree that, if the instant motion is granted by this Honorable Court, they will work together using pool cameras and audio/video recording equipment to minimize any noticeable television presence in the courtroom. 9. News 9, News Channel 4 and The News on 6 further agree that, if the instant motion is granted by this Honorable Court, they will work with court staff to comply with the directions of the Court as to appropriate rules of procedure, to minimize any noticeable television presence in the courtroom and to take all appropriate steps to avoid disruption of the activities of the Court in this case. Argument and Authority The First Amendment prohibits governments from abridging the freedom of speech or of the press. U.S. Const. amend. I. In guaranteeing the freedoms of speech and press, the United States Supreme Court has held that the First Amendment can be read as protecting the right of everyone to attend trials "so as to give meaning to those explicit guarantees." Richmond Newspapers v. Virginia, 448 U.S. 555, 575, 6 Med. L. Rptr. 1833, 1842 (1980). The guarantee of free speech carries with it the freedom to listen and to receive ideas and information. Id. at 448 U.S. at 576. "What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted." Id. In Oklahoma, the right of the press to have access to and electronically record courtroom proceedings is governed by Okla. Stat. tit. 5 Ch. 1, App. 4, Canon 3(B)(10). Before using 1 The Court in Richmond Newspapers examined at length the history and tradition of openness in Anglo-Saxon criminal trials. The Court noted, "What is significant for present purposes it that throughout its evolution, the trial has been open to all who cared to observe." 444 U.S. at 564, 6 Med. L. Rptr. at 1837. 3
cameras or other recording or broadcasting equipment, the news media must obtain the express permission of the judge in whose court the subject case is pending. Id. (10) Except as permitted by the individual judge, the use of cameras, television or other recording or broadcasting equipment is prohibited in a courtroom or in the immediate vicinity of a courtroom. (a) Before cameras, television or other recordings or broadcasting equipment are used, express permission of the judge must be obtained. (b) The judge shall prescribe the conditions and specific rules under which such equipment may be used. (c) Media personnel shall not distract participants or impair the dignity of the proceedings. (d) No witness, juror or party who expresses any objection to the judge shall be photographed nor shall the testimony of such a witness, juror or party be broadcast or telecast. (e) There shall be no photographing or broadcasting of : (1) any proceeding which under the laws of this State are required to be held in private; or (2) any portion of any criminal proceedings until the issues have been submitted to the jury for determination unless all accused persons who are then on trial shall have affirmatively, on the record, given their consent to the photographing or broadcasting. Any portion of a criminal proceeding may be recorded or broadcast when the accused affirmatively consents on the record to the photographing or broadcasting. Id. Oklahoma courts have long recognized the importance of public and press access to criminal trials. In Lyles v. State, 1958 OK CR 79 at II 2, 330 P.2d 734, 738 (Okla. Crim. App. 1958), the Court of Criminal Appeals considered the defendant's assertion that the allowance of television cameras at his burglary trial inflamed the jury and prevented him from having a fair trial. Though the Lyles decision was in a case not one like the instant matter, where neither the
prosecution nor the defense object to the use of television cameras in the courtroom, and the Lyles Court analyzed the defendant's claim under a standard that is no longer in effect, the general principles of public access to the courtroom are still applicable. Television reporters have the same right to attend trials as does the public. Not only does the general public include the news media, the news media acts in a special representative capacity for the populace in the reporting of information. The general public rarely has the time to attend court proceedings. As a practical matter, the primary medium for the dissemination of court information is the news media. Such a realization both recognizes the special status of the media and acknowledges the skill of the news media to sort out the intricacies of court hearings that the general public could find difficult to discern. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-492, 95 S.Ct. 1029, 1044-45, 43 L.Ed.2d 328, 347 (1975). Oklahoma follows the rule in Richmond Newspapers Inc. v. Virginia, 44S U.S. 555 (1980) (absent extraordinary reasons the public has a right to attend criminal trials). Richmond Newspapers concluded that the public has a presumptive right to attend criminal trials under the open system of American justice. Openness encourages that the judge fairly presides over the proceedings, discourages perjury of witnesses, the misconduct of parties and witnesses and decisions based on secret bias or partiality. Allowing the public, individually and through the news media, to observe the work of our judicial system satisfies society's interest in justice. Only when there is a clear need to protect a witness from harassment, embarrassment or physical harm should the court close the proceedings In this motion, News 9, News Channel 4 and The News on 6 are requesting leave to televise, not only the preliminary hearing but all proceedings leading up to the trial. In the absence of prejudice a defendant may not close his preliminary hearing to the public on the 5
grounds that it would spawn prejudicial pre-trial publicity impacting on his right to a fair trial. Driskell v. State, 1983 OK CR 22, 659 P.2d 343. The public shares an interest with the accused in an open public trial, the common concern being the assurance of fairness. No Oklahoma statute or court rule limits access of print journalists to cover trials or court proceedings that are otherwise open to the public at large. Only the tools of broadcast journalists, cameras and recording devices, are treated differently by Okla. Stat. tit. 5 Ch. 1, App. 4, Canon 3(B)(10). The Lyles Court noted that the assertion of the criminal defendant in that case involved "important concepts of constitutional law" specifically freedom of speech and freedom of the press. Id. at 6, 330 P.2d at 738-39. The Lyles Court held that these rights belong to every person, and that it would be discriminatory to hold that the rights belong to some journalists (print journalists), but not to others (broadcast journalists). Id. at 'Ij 6, 330 P.2d at 739. The Lyles Court noted: Id. Under our constitution, the right may be freely used so long as it is not improperly exercised. How can the right of all to gather and disseminate legitimate matters to the public be denied to one without doing violence to the right of all?... We are of the opinion freedom of speech and press is not a discriminate right, but the equal right of news gathering and disseminating agencies, subject only to the restrictions against abuse and injurious use to individual or public rights and welfare. We are further of the opinion that to deny television the same privileges as are granted to the press would constitute unwarranted discrimination. In Chandler v. Florida, 449 U.S. 560, 573-74, 7 Med. L. Rptr. 1041, 1045 (1981), the United States Supreme Court expressly stated that its earlier decision in Estes v. Texas, 381 U.S. 532, 1 Med. L. Rptr. 1187 (1965) did not create a per se rule that all photographic, radio, and television coverage of criminal trials is inherently a denial of due process. The Chandler court found that Estes was not an absolute ban on radio and television coverage. Id. The Chandler 6
Court found that the mere presence of a television camera does not inherently have an adverse effect on the process. Id. at 449 U.S. at 578-79, 7 Med. L. Rptr. at 1049. The Chandler Court noted: Not unimportant to the position asserted by Florida and other states is the change in television since 1962, when Estes was tried. It is urged, and some empirical data are presented, that many of the negative factors found in Estes cumbersome equipment, cables, distracting lighting, numerous camera technicians are less substantial actors today than they were at that time. Id, 449 U.S. at 576, 7 Med. L. Rptr. at 1048. In fact, the district court in Kingfisher County, Oklahoma, in an experiment authorized and initiated by the Oklahoma Supreme Court, has had 9 court-owned cameras and audio recording devices present in its courtroom for more than 10 years. The cameras and recording equipment in Kingfisher County District Court are available for use by parties and their counsel, particularly the prosecution and defense in criminal cases, for the purpose of daily recordings of trial proceedings and have not generated any objections or concern by parties of distraction of witnesses, jurors or lawyers, or disruption of the solemnity or dignity of court proceedings. News 9, News Channel 4 and The News on 6 are prepared to take the technical steps necessary under the direction of this Court to provide pool coverage for the two participating television news stations with a minimum presence in the courtroom during pre-trial and trial proceedings in this case. Such coverage would be appropriate in any case pending in Oklahoma County District Court, but in this case, which is one generating an immense amount of public interest, it is especially appropriate to permit the public to observe the court proceedings. Permitting news coverage with the assistance of video and audio recording will provide citizens far and wide the chance to observe with their own eyes and ears the proper conduct of an 7
important judicial proceeding which they would be entitled to attend and observe in person, but for the limitations of space and work schedules. The instant motion is not opposed by either the prosecution and the defense in this case. The provisions of Okla. Stat. tit. 5 Ch. 1, App. 4, Canon 3(B)(10), based on a hearing and the agreement of the prosecution and the accused on the record, permit this Court to provide the open and public trial guaranteed by the law and to which both the accused and the public are entitled. WHEREFORE, Griffin Television OKC, LLC (News 9), Local TV, LLC (News Channel 4) and Griffin Television Tulsa. LLC ("The News on 6") respectfully request that this Honorable Court, upon hearing, enter an order permitting them to televise court proceedings in this case including the preliminary hearing and any resulting jury trial. Respectfully submitted, DOERNER UNDERS, DA DERSON, L.L.P. By: -41 S. II 4UG AS DODD, OBA No. 238 320 outh Boston, Suite 500 Tulsa, OK 74103-3725 Telephone (918) 582-1211 Facsimile (918) 925-5316 and MICHAEL MINNIS, OBA No. 6251 201 Robert S. Kerr, Suite 700 Oklahoma City, OK 73102-4203 Telephone (405) 319-5000 Facsimile (405) 319-3509 ATTORNEYS FOR Griffin Television OKC, LLC ("News 9") Local TV, LLC ("News Channel 4") and Griffin Television Tulsa, LLC ("The News on 6") 8
CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 28 th day of July, 2009, a true and correct copy of the above and foregoing document was both mailed with proper postage thereon, and emailed to: David W. Prater, Esq. Oklahoma County District Attorney 505 County Office Building 320 Robert S. Kerr Avenue Oklahoma City, OK 73102 Irven R. Box, Esq. Box & Box 2621 South Western Avenue Oklahoma City, OK 73109 Or. / Michael Minnis 9