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Inmate fails to obtain 911 tape

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  1. Freedom of Information
From the Winter 2001 issue of The News Media & The Law, page 41.

From the Winter 2001 issue of The News Media & The Law, page 41.

A Virginia appeals court has ruled a convicted murderer was not entitled to a copy of a 911 tape, which included his call to 911 claiming that his wife had fallen off of a pier.

There is extensive case law in Virginia recognizing a First Amendment right of public access to criminal trials and criminal records, but in making its ruling, the court relied on other case law that denied the media access to the Watergate tapes.

The tape, a piece of evidence in the murder trial of Herbert Fisher, included his call to 911 in which he claimed his wife fell off a pier into the Ware River in Gloucester County, Va. The 911 call was played in open court and a verbatim transcript was included in the court record, a copy of which was given to Fisher. Fisher was convicted of murdering his wife.

In his appellate brief, Fisher argued that he needs access to the tape because it could also include “conversations between officials at the rescue scene and elsewhere,” which were not played in open court.

Almost five years after Fisher was given a 20-year sentence for second degree murder, he sent a request to Charles King, the clerk of court in Gloucester County, for the original 911 tape. King denied the request under a statute that prohibits prisoners from using the state open records law. Although it did not affect the court’s analysis, the prisoner prohibition did not become effective until two months after Fisher was denied access to the 911 tape.

Fisher sued King in federal district court claiming that the clerk violated his First Amendment right of access to government records and the equal protection clause of the U.S. Constitution. The district court found in favor of King without a trial.

In the appellate brief, Fisher argued that the recording of the emergency call was akin to other documents deemed open in a criminal proceeding, such as exhibits supporting a pre-trial motion or change of venue motions.

Fisher gave short-shrift in his argument to Nixon v. Warner Communications, a case which denied the media access to the original Watergate tapes because the media had already received transcripts. Fisher distinguished his predicament from Nixon, claiming the earlier case involved a “most idiosyncratic situation” and predated U.S. Supreme Court cases that have defined the constitutional right of access to criminal proceedings and documents.

In contrast, King relied principally on Nixon, arguing it controlled the court’s decision because it involved the same type of records. He also cited three circuit court cases that closed access to audio or video tapes beyond what was played in open court.

While the state appeals court acknowledged that cases after Nixon found a First Amendment right of access to records admitted in criminal trials, it noted that it was bound to follow the precedent set by the Nixon case. The court called Fisher’s argument that Nixon was unique because it involved tapes of a sitting president to be a “distinction without a difference.”

Without relying on the arguments of either side, the appeals court upheld the constitutionality of the state law. The court determined that Fisher could not maintain a claim that he was being treated differently than other people under the Virginia open records law because he had “not shown that any other person, prisoner or nonprisoner, requested and received physical access to the original tape recording of his 911 call.”

Virginia is one of only three states to deny prisoners the right to request records under the open records law. Michigan was the first in 1994, and Texas followed in 1995. — CC