Court finds right of access to videotape of governor’s deposition

ILLINOIS–In mid-January, a federal District Court in Springfield denied motions filed by the governor of Illinois and a defendant in a fraud trial to seal a videotape of the governor’s deposition after it was played for the jury in open court.

Judge Richard Mills held that under the First Amendment the public should have access to the videotape because it is “more akin to a judicial record than a violation of the ban of cameras in a federal courtroom.” The court further stated that the defendant would suffer no prejudice from its release, nor was there any “higher value” that rebutted the public’s right of access.

Mills also rejected a request by the defendant and the governor to stay his ruling until they have had an opportunity to prepare a formal motion on the issue, holding that once access is found to be “appropriate,” it should be “immediate and contemporaneous.”

In January 1998, Mills recessed the trial of Department of Public Aid deputy director James Berger for several days because one of the jurors was ill. Berger had planned to call Illinois Gov. Jim Edgar as a witness the next day, but Edgar was unavailable to testify at another time during the trial because of a planned trip overseas. The parties agreed to allow the governor to be deposed via videotape, to remain under seal until it was presented in court.

In late December, the court denied a press motion to be present during the taping of the governor’s deposition, which was closed to the public. The press moved for reconsideration, which the court denied in late January.

In his January motion, the governor asserted that the videotape should remain under seal even after it was played for the jury because media broadcasts of the videotape could result in negative publicity or possible distortion or misreporting of his statements. Mills rejected this argument, holding that it was not his job to assure that the news media does its job properly or that the public is not misinformed.

Mills acknowledged that his decision conflicted with three federal appeals courts decisions, including one in 1996 by the federal appeals court in St. Louis (8th Cir.) holding that the public did not have a First Amendment or common law right to copy President Clinton’s videotaped testimony in a Whitewater-related proceeding.

The jury acquitted Berger in mid-January of all charges. (United States v. Berger; Media Counsel: Donald Craven, Springfield)