Looking to the courts for relief

The judicial branch is responsible for its share of "lost stories," as courts have found many ways to limit media access to important information. Most notably, access to immigration hearings has been virtually eliminated since Sept. 11.

From hearings for the alleged Washington, D.C.-area snipers to immigration hearings for foreign nationals the government has detained since Sept. 11, reporters trying to inform the public about the justice system are increasingly running into closed doors.

Although subsequent hearings have been open to the public and press, the original pretrial hearings for accused sniper Lee Boyd Malvo, 17 at the time of his arrest in 2002, were closed. Malvo, along with John Allen Muhammad, is accused of shooting 19 people — killing 13 and wounding six — in Alabama, Georgia, Louisiana, Maryland, Virginia and Washington, D.C.

A judge denied media requests for access to Malvo's November 2002 hearing, which resulted in his detainment. But another judge refused to close Malvo's preliminary hearing in January. Most recently, a judge banned camera access to the hearing to determine Malvo's court date.

As of late October, Muhammad was on trial in Prince William County, Va. The judge there ruled against allowing TV cameras, but has allowed still camera access.

While the media tries to cover the war on terrorism, the doors have been shut to immigration hearings for those detained since Sept. 11.

In September 2001, Chief Immigration Judge Michael Creppy issued a memorandum closing access to all "special interest" immigration cases.

Two federal appeals circuits are in conflict whether or not such hearings should be open. A federal appeals court panel in Cincinnati (6th Cir.) ruled in August 2002 that proceedings for Rabih Haddad, the Lebanese co-founder of an Islamic charity, should be open to the press and public. In late January, the government's request for a rehearing by the full court was denied.

But another federal appeals court, in Philadelphia (3rd Cir.), said in October 2002 that deportation proceedings should not be public.

The U.S. Supreme Court, which often takes cases where there is a split in the circuits, declined review of the Third Circuit's decision.

It is not only high-profile cases being closed, though. Courts regularly close proceedings, making it more difficult for the media to report on cases that give the public insight into the judicial system.

In December 2002, a federal appeals court in New York (2nd Cir.) upheld a lower court's decision to ban the public — including the defendant's wife — from parts of the trial of a man convicted of weapons possession and conspiracy to commit murder stemming from his participation in a scheme to import heroin from Turkey.

Media organizations and openness advocates have heralded a statement made by Judge Damon Keith in the Sixth Circuit's decision, that across-the-board closure of immigration hearings is unconstitutional.

"Democracies die behind closed doors," he wrote.

But finding out what was going on behind those closed doors is what allowed Los Angeles Times reporter Lisa Getter in 2001 to report about problems in the immigration system that prevented many people from being granted asylum.

"In 9 out of 10 cases," Getter wrote, "the judges order the immigrants deported. A Los Angeles Times examination of the nation's immigration courts reveals a system in which judges are overburdened, immigrants are intimidated and justice often seems arbitrary."

In April 2001, The Dallas Morning News reported that "hundreds of foreigners, including asylum seekers and others convicted of no crime, are trapped indefinitely in U.S. jails."

To do the story, the newspaper pushed for access to names of individuals being detained by the government, something that has become virtually impossible since Sept. 11.

As journalists reported on the arrests and detention of hundreds of people around the country in the United States' war on terrorism, they ran up against government efforts to keep hearings and even the whereabouts of detainees secret.

One particularly sensitive and confusing area of terrorism-related detentions deals with people held as "material witnesses." Under the material witness statute, any person may be detained indefinitely if their testimony is "material in a criminal proceeding" and it would be "impracticable" to expect them to respond to a subpoena.

One such detainee, James Ujaama, a U.S. citizen, originally was held as a material witness to terrorist activities. Ujaama, 36, was later charged with conspiring to provide material support to terrorists and with possessing and discharging a firearm in furtherance of a crime. He has since accepted a plea bargain and is serving two years in federal prison.

While Ujaama was held as a material witness, news media around the country wanted to tell the public why he was being held. Particularly interested were media outlets in Denver, where he was arrested in July 2002, and in Seattle, where he was a Muslim activist. But the courts thwarted media efforts to gain access to Ujaama's hearings and proceedings.

"The story here was whether detention including American citizens as material witnesses — in some cases for long periods of time — is legal, constitutional or is a good policy," said Seth Berlin, an attorney for The Denver Post. "It's very difficult to tell that story if you can't have access to the proceedings."

Charlie Brennan, a Rocky Mountain (Denver) News reporter who covered the Ujaama case, called the process "a nightmare."

"It just made it extremely frustrating, really impossible to write anything intelligent about what was happening to this person and why," Brennan said. "To be in a situation where people who are holding a citizen in custody cannot even acknowledge that they are holding that person is frankly scary. I've been a reporter for 22 years and I've never seen anything like that."

Reporters were denied access to an initial hearing that was held in Denver on July 26, 2002, to determine the legality of detaining Ujaama as a material witness, not as a criminal. Later, when Ujaama was moved by federal authorities to Virginia, Brennan was told conflicting stories as to whether he was there at all.

Courts and the privacy debate

Government agencies often choose on their own to raise the privacy argument when they don't want to release information. The dispute over openness must be resolved in the courts.

After two lower court rulings favoring the city of Chicago, the Supreme Court agreed in November 2002 to decide whether the federal Bureau of Alcohol, Tobacco and Firearms can withhold federal gun-tracking data from the city. At issue in the case was access to information on approximately 200,000 firearm traces made by police every year. When police officers confiscate a weapon in a crime, they track down who made it, sold it and bought it.

The ATF claimed that releasing gun-tracing information would "significantly intrude upon the privacy of hundreds of thousands of individuals — including firearms purchasers, potential witnesses to crime and others — without meaningfully assisting the public to evaluate the conduct of the federal government."

It also argued release of the records would hinder ongoing law enforcement investigations.

The dispute started when the City of Chicago sued the ATF in 1999 after the agency refused to release gun-tracing data that the city requested under the federal Freedom of Information Act. Chicago claimed it needed the information to help prove its case in a $433 million lawsuit against gun manufacturers the city believed illegally marketed guns to the inner city. Chicago wanted to use the information to locate gun sources and analyze trafficking patterns.

Chicago won at both the federal district and appellate levels. The U.S. Court of Appeals in Chicago (7th Cir.) found that releasing the information raised neither privacy nor law-enforcement concerns. Rather, the court found that the public interest would be served by the disclosures.

"Disclosure of the records sought by the City will shed light on ATF's efficiency in performing its duties and directly serve FOIA's purpose in keeping the activities of government agencies open to the sharp eye of public scrutiny," the appeals court held in its March 2002 decision.

The U.S. Supreme Court was scheduled to hear arguments March 4, 2003, but a provision inserted into this year's spending package as it worked its way through Congress precludes the ATF from spending any money to release the gun-tracing information. Rep. George Nethercutt (R-Wash.) introduced the provision as an amendment to the 2003 Consolidated Appropriations Resolution, which was signed by the President on Feb. 20. The House report on the bill said releasing the data "would not only pose a risk to law enforcement and homeland security, but also to the privacy of innocent citizens."

The Supreme Court cancelled the hearing and said the Seventh Circuit must reconsider the case in light of the change.

News organizations are watching this case closely because gun-tracing data is an important reporting tool; journalists rely on the data to report on the illegal flow of guns. News stories have shown how police guns ended up in the hands of criminals, often through illegal interstate trafficking.

Using database information that the ATF is now withholding, The Denver Post identified guns traced from crime scenes that had been sold by law enforcement agencies. According to the Post's Jeff Roberts, who analyzed the data, the newspaper found more than 2,800 examples of such guns from 1994 to 1998.

According to Roberts, after the series ran in September 1999 some Denver-area police departments announced they would stop selling used police guns. Denver Mayor Wellington Webb, who was president of the U.S. Conference of Mayors at the time, called on other departments nationwide to do the same thing.

In December 2000, the Dayton Daily News used gun-tracing data for its story, "Ohio: The Gunrunner's Paradise." The story showed "more than 1,000 guns used in crimes nationwide came from Ohio" in 1997 and 1998. But despite the "state's well-known role in supplying guns, ATF agents in Ohio rank among or near the bottom third of all federal districts for generating criminal cases," the report showed.

In November 1999, The Washington Post used ATF gun-tracing data to report that Washington, D.C.'s Metropolitan Police Department "has traded in nearly 9,000 used guns in exchange for a lower price on new firearms. Across the Washington area, police have recycled more than 20,000" guns in the past decade.

Privacy and private property

Privacy considerations go beyond public records. The U.S. Supreme Court and multiple federal appeals courts have found that reporters who accompany officials onto private property can be liable for invasion of privacy. The courts have also found that police officers can violate search and seizure laws by bringing a third party with them.

What that means for journalists is that, rather than independently witnessing an event, they must rely only the word of officials after an event takes place. It is akin to the difference between being an embedded reporter with a military unit in wartime, and hearing from Central Command what the unit did. It is not the same.

In 1999, the U.S. Supreme Court held that police officers can violate the Fourth Amendment when executing an arrest or search warrant by bringing members of the media into a private residence. However, in 2001 CNN and the federal government settled an invasion of privacy lawsuit brought by Montana ranchers. The decision affected the media's ability to accompany officials to certain places, such as police ride-alongs.

CNN was reporting on the alleged poisoning of eagles and other birds by ranchers. The case presented the legal question of whether the media could be liable for accompanying law enforcement officials on otherwise lawful searches of private persons.

The suit was filed by Paul and Erma Berger after Fish and Wildlife Service agents raided the Bergers' Montana ranch in March 1993 in search of evidence that they illegally poisoned the birds. Prior to the raid, the FWS granted a CNN camera crew permission to accompany the agents onto the property. During the search, the camera crew filmed the agents as they searched the Bergers' ranch, and recorded a conversation between Paul Berger and an FWS agent who wore a hidden microphone.

The Bergers sued the FWS and CNN in separate actions, asserting civil rights violations in both lawsuits and several wiretap and other state claims against the network. A U.S. district court judge in Billings dismissed the civil rights suit against the network in February 1996, holding in part that the reporters could not be "state actors" and thus cannot be sued for civil right violations. The district court also dismissed the other claims against CNN and its employees.

In November 1997, a panel of the U.S. Court of Appeals in San Francisco (9th Cir.) reversed the dismissal of the civil rights claim and the Bergers' claims of trespass and intentional infliction of emotional distress. The panel held that the news reporters had cooperated so closely with the FWS during the search that they became joint actors. That decision made CNN susceptible to a lawsuit for violating the Bergers' civil rights. (See NM&L, Winter 1998)

In May 1999, the U.S. Supreme Court sent the case back to the Ninth Circuit to reconsider its ruling in light of the high court's finding that the law was unclear at the time of the raid. At the same time, the Supreme Court ruled in a similar case that law enforcement officials were entitled to qualified immunity for their actions because the state of the law was uncertain at the time of the search. (Cable News Network, Inc. v. Berger; Wilson v. Layne)

In November 1999, the Ninth Circuit ruled the federal officials were immune to suit, but media participants were not. (Cable News Network, Inc. v. Berger)

The "lost stories" here are those where the media serves an important role as an independent observer of state power. Many searches and arrests lead to allegations of racial motives, police brutality or other improper behavior. Allowing news media to observe such scenes would typically infringe very little on a true "privacy" interest, and would serve a valuable role in helping a community understand how its police officers enforce the law.

Court cases under seal

Important information hidden under seal by courts has prevented many important stories from coming to the forefront. Settlements between the Catholic Church and victims of sexual abuse by priests were tucked away under seal until only recently. Settlements between manufacturers and consumers have kept safety problems under wraps and out of news reports.

In some cases, after great efforts by news organizations, those documents have been opened. Federal judges in South Carolina even adopted a new rule, effective Nov. 1, 2002, that bans secret settlements. The rule applies to all federal district courts in South Carolina.

But in other cases, important information remains hidden in court files.

Court records will remain sealed in the high-profile case of Stephen Roach, a former Cincinnati police officer acquitted of criminal charges in the shooting death of Timothy Thomas, a 19-year-old, unarmed African American male, that led to city riots in April 2001. The Dec. 31, 2002, decision by the Ohio Court of Appeals ended The Cincinnati Enquirer's yearlong battle to obtain access to the court records.

In January 2003, a U.S. district court judge in Boston denied media requests for letters written by confessed "shoebomber" Richard Reid, claiming the letters could contain coded messages to other terrorists and put national security at risk.

Access to jurors

Reporters routinely interview jurors following trials to help explain the deliberation process to readers. But journalists do not always have access to jurors.

After the trial of Andrea Yates, a Texas nurse who, in 2002, was convicted of killing her five children, jurors told Dallas Morning News reporter Terri Langford how they came to their decision in the controversial case. Jurors also discussed what it was like to be sequestered for four weeks.

"It is crucial to know how jurors come to their conclusions," Langford said. "Interviewing them after any trial allows the public to gain critical insight as to how jurors decide the fate of one of their own."

In the case of Yates, Langford said, it was important to talk to the jurors to determine exactly what evidence convinced them that Yates was guilty of murder and not clinically insane at the time.

When the initial trial for Fred Neulander, a rabbi and former community leader accused of murdering his wife in Camden County, N.J., ended in a hung jury in November 2001, the judge ordered that journalists could not contact or interview discharged jurors. The Philadelphia Inquirer challenged the court's order and lost at the trial court level. On appeal, the New Jersey Supreme Court affirmed the lower court's decision and expanded the order to prohibit communications with the press, initiated by the discharged jurors. It reasoned that it was necessary to ban juror interviews to prevent the prosecution from obtaining an unfair advantage in the retrial of the defendant by the disclosure of information regarding the jury's deliberations.

In a friend-of-the-court brief filed by The Reporters Committee for Freedom of the Press, several media groups urged the U.S. Supreme Court to accept the Inquirer's petition for review of the case. The brief contends that the New Jersey Supreme Court's order prohibiting juror interviews was an unconstitutional prior restraint that "severely restricts the First Amendment rights of the press and limits the exchange of information about the administration of justice in our society."

Electronic access to courts

Access to electronic court records is at a pivotal point, as courts decide what they will and will not make available.

In 2001, the Justice Management Institute and the National Center for State Courts began work on developing a model policy on electronic access to court records. The groups listened to testimony from those advocating for open access to online court records and those who claimed that stalkers could use court information to invade individuals' privacy.

According to an analysis by the Reporters Committee, the guidelines the organizations produced do not encourage sufficient public access. The guidelines actually have the potential to discourage states from making court records fully available electronically.

Journalists should pay attention to developments in their own states, while they still have the opportunity for input. Otherwise, they will wake up one day and wonder what happened to their access.

And unfortunately, too many of the stories being reported are those warning readers to be leery of Internet scams and stalkers — and too few explain why access to this information is important.

Reporters who have used electronic court records know what important stories can be done.

In October 2002, reporters for WOAI-TV in San Antonio used electronic court records to show that thousands of accused criminals in Bexar County, Texas, were getting off the hook because the justice system there couldn't process their cases fast enough.

WSMV-TV in Nashville analyzed electronic court records in September 2002 and found that a former patrol officer on disability had been working to defend the same kind of criminals he used to arrest, and was getting paid by taxpayers to do both.

When the Tulsa (Okla.) World wanted to look at the outcomes of juvenile court cases, reporters had to build their own database using paper records. Reporters requested a redacted version of the court's database, but an exemption in the state's open records law allowed the courts to withhold the data.

The World later asked a federal judge to make public a database of police data that included the names of officers, complaints, pedestrian stops and other information created as part of a settlement in a police discrimination lawsuit. The newspaper won access to the information in a settlement. In addition, under the terms of the settlement, the department has to create a database of all of its contacts with the public and internal affairs investigations. The judge ordered the department to design the database to easily provide public information.