Now you see it, now you don’t

From the Spring 2010 issue of The News Media & The Law, page 19.

When attorneys show evidence to juries and judges during trial, the photographs and video can also be seen by anyone in the courtroom. Judges’ decisions, which are based on such evidence, are likewise a public record unless the case itself is sealed. Yet gaining access to the same material once a trial has ended can be complicated — and there is little legal precedent available to guide courts in deciding whether or not to grant the media access.

Though the U.S. Supreme Court in 1947 in the case of Craig v. Harney said “[w]hat transpires in the courtroom is public property,” what happens to the property after the trial’s conclusion has prompted several journalists to wage legal battles to gain access.

Access (eventually) allowed

In 1980, the U.S. Court of Appeals in New York City (2nd Cir.) was asked to decide if three major television networks were entitled to copy and broadcast videotapes used in the midst of the Abscam trials, which began after law enforcement officials in New York developed an undercover operation to determine whether public officials would accept bribes. The videotapes were of significant public interest, particularly one that showed a congressman accepting a bribe of $50,000 and demanding $35,000 more. Everyone present in the courtroom, including the jury and the press, saw and heard the tapes during one of the trials.

The court allowed the broadcasters to obtain copies of the videotapes, despite prosecutors’ concerns that releasing the tapes would impair the right to a fair trial for defendants prosecuted in subsequent trials.

“Once the evidence has become known to the members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction,” the court ruled, suggesting that this principle should apply whenever there was no “significant risk of impairing the integrity of the evidence of interfering with the orderly conduct of the trial.”

The Abscam case has provided guidance for some other courts. In 2005, for example, journalist Jerry Capeci tried to obtain copies of five tape recordings presented as evidence during the first of many trials involving an organized crime family. Members of the press listened to the recordings during the trial and no restrictions had been placed on the press regarding reporting on the contents of the tapes.

The government argued that because the tapes would be used as evidence for subsequent trials involving the same organized crime family, Capeci should not be given access, but the federal district court in New York disagreed.

“[T]he presumption of public access is at its strongest when courts consider whether the public should have access to trial evidence,” wrote the court in its opinion, also adding that it would take “extraordinary circumstances” to justify restricting access.

Not all courts apply this “extraordinary circumstances” principle, however.

Access denied

In 2008, Prison Legal News, an organization that protects human rights in U.S. prisons, sued the Executive Office for United States Attorneys after repeated attempts to gain access to videotapes used as evidence during the two criminal trials of William Sablan and Rudy Sablan.

The Sablans were on trial for murdering another prisoner, Joey Jesus Estrella, in their shared prison cell at a federal facility in Florence, Colo. The videotapes showed not only the Sablans’ actions after the murder, which included the mutilation and handling of Estrella’s body, but also the removal of the Sablans from their cell, their physical exams and their placement in restraints in separate cells.

At trial, the videotapes and autopsy photographs were shown in open court. Later, they were returned to the federal prosecutors in Colorado.

The Colorado federal court refused to grant the media subsequent access to the photographs, claiming that the government could legitimately refuse to release information under the Freedom of Information Act if it constituted “a clearly unwarranted invasion of personal privacy.”

Public interest in the autopsy photographs was small, the courtclaimed, because there was nothing in the photographs that linked the circumstances of the murder to a governmental activity or the government’s decision to seek the death penalty for the defendants. Furthermore, the court said, Estrella’s family’s privacy interest was “significant” because public dissemination of the images could impede the mourning process and prevent them from obtaining emotional closure.

The court granted Prison Legal News access to the portions of the video showing treatment of the Sablans during and after their removal from the cell, stating that it was warranted because “it depicts the governments’ operations with respect to dealing with William and Rudy Sablan following the murder” and there were “no family privacy interest at issue because these are not death scene images.” It refused to grant access to portions of the tape that showed the Sablans’ handling of Estrella’s body, citing the same familial privacy interest that resulted in denial of access to the photographs.

The court rejected Prison Legal News’ arguments that because the video and photographs were shown as evidence during the trial, they had already entered the public domain. Additionally, the court seemed to consider evidence as a separate category from other public records, particularly when there was a privacy interest at stake.

“A trial is of limited duration, and once completed, the evidence presented becomes part of the trial record,” the court said, claiming that the trial record may never have public exposure and even if it did, the exposure would only be for a limited amount of time. “In contrast, the release of death scene material through FOIA is absolute, unrestrained, and perpetual. Once released, the information can be publicly displayed, by multiple persons, in multiple venues, and on multiple occasions,” the court said, adding that Estrella’s family “would have no expectation that the exposure would necessarily end.”

Placing evidence in its own special category is troubling to media attorneys. “If a court uses the evidence, it’s a public record,” said Kevin Goldberg, an attorney for the American Society of News Editors, which joined a friend-of-the-court brief in Prison Legal News’ appeal before the U.S. Court of Appeals in Denver (10th Cir.). “If a court relies on the evidence to make a decision, then it’s a matter of semantics as to what it’s called.”

Complicating matters is the fact that courts do not generally keep the evidence presented at trial as a court record. After a trial is completed, courts usually order the evidence returned to its rightful owner.

Goldberg indicated that the public should be able to access the evidence, no matter whose hands it is in. “If it’s something the court relied on, actual physical possession shouldn’t matter,” Goldberg said, adding though that practically speaking, the right to access court records generated as part of the case is much stronger than the right to access actual evidence shown to the jury.