Broadcaster seeks push for court ruling on prior restraint case

• As a murder trial date looms, First Coast News needs to know whether a do-not-publish order from a trial court will restrict its reporting.

Feb. 25, 2005 — A news organization has asked the Florida Supreme Court to compel a state appeals court to decide whether to quash a prior restraint issued in a high-profile murder case, an unusual request that comes six months after an “emergency” petition was filed.

A trial judge had ordered First Coast News in July not to re-publish information contained in a transcript of grand jury testimony by accused wife-killer Justin Barber. First Coast, which had obtained a copy of the transcript from the prosecutor’s office, challenged the order to Florida’s Fifth District Court of Appeal on Aug. 4. The appeals court has yet to rule on the media’s petition, despite a request for expedited review.

First Coast — a Gannett duopoly of an ABC and NBC affiliate — argued in its Feb. 21 request to the high court that it has a clear legal right to a speedy decision from the appeals court, citing case law and court rules calling for “immediate” appellate review of prior restraints, which are presumed unconstitutional.

With the murder trial expected to start soon, First Coast said it had no choice but to ask the Supreme Court for a writ of mandamus ordering the appeals court to take action — although it recognized the “extraordinary nature” of such a request.

“For over six months the continuous threat of criminal prosecution and contempt sanctions has frozen First Coast News’ ability to report public information it lawfully obtained and currently possesses,” the media group stated in its petition to the Florida Supreme Court. “Furthermore, First Coast News’ freedom of speech and the press have been chilled to the point of fear to report further on Mr. Barber’s trial, which will be starting soon.”

To bolster its request, First Coast pointed to previous cases in which the Florida Supreme Court ordered the appeals courts to do something, such as reinstate an appeal it had dismissed. It emphasized that the petition was not asking the high court to direct the appeals court to rule in a certain way.

“Rather, it is seeking to compel the Fifth District Court of Appeal simply to decide,” First Coast stated.

First Coast reported on the contents of the 164-page grand jury transcript on July 28. Two days after the story aired, Jacksonville Circuit Judge Robert Mathis issued his order, a violation of which is a misdemeanor. First Coast filed a motion to set aside the order, calling it an unconstitutional prior restraint and a violation of state public records laws.

“The documents were furnished by the state attorney,” First Coast News attorney George Gabel of Holland & Knight said at the time. “They’re in our possession and now the judge is saying we can’t use it.”

First Coast asked the intermediate appellate court to vacate Mathis’s order, arguing that because Florida’s public record laws make documents furnished to defendants who testify in a criminal proceeding part of the public record, Assistant State Attorney Maureen Sullivan Christine acted legally in providing them a copy of the transcript. Copies of Barber’s grand jury testimony had already been given to Barber.

Mathis’ order, which he brought on his own motion, relies on a Florida law requiring grand jury proceedings to remain secret. He said release of the transcript violates that law. Mathis also asked Florida Gov. Jeb Bush to appoint a special prosecutor to investigate whether Christine or First Coast should be prosecuted for disclosing the transcript’s contents.

Barber was charged last July with killing his 27-year-old wife, April, who was found dead in a state park in August 2002 with one gunshot wound. Barber had allegedly fled the scene and drove more than 10 miles before flagging down help. He had four gunshot wounds himself, and claimed that the two had been robbed by a man on the beach.

The July 28, 2004, First Coast report discussed Barber’s admission to the grand jury that he had at least five affairs in the year prior to his wife’s death, as well as his account of the events the night his wife was killed. Barber maintained his innocence throughout his testimony, according to an article on the company’s Web site.

(Multimedia Holdings Corp d.b.a. First Coast News v. Florida, Media Counsel: Holland & Knight LLP, Jacksonville, Fla.) — KK

Related stories:

• Judge issues prior restraint against broadcast company (08/03/2004)

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