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Judge rejects same-day access to recordings in Padilla trial

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NEWS MEDIA UPDATE   ·   ELEVENTH CIRCUIT   ·   Secret Courts   ·   June 11, 2007

NEWS MEDIA UPDATE   ·   ELEVENTH CIRCUIT   ·   Secret Courts   ·   June 11, 2007

Judge rejects same-day access to recordings in Padilla trial

  • The Associated Press and other media groups will receive second-day access to the audio files.

June 11, 2007  ·   A federal judge last week ordered that audio tapes played during the terrorism trial of Jose Padilla must be made available to the media by noon on the day after they are played in court.

The Associated Press, which was joined by The Washington Post, The New York Times, Bloomberg News and CNN, had sought to have the tapes, which include recordings by the FBI of calls involving Padilla and other defendants, made available the same day they are played for the jury.

U.S. District Judge Marcia G. Cooke in Miami ordered that documents in the case be made available by 10 p.m. on the day they are introduced in court. Audio files, however, were ordered to be made available by noon the following day, or Monday if they are played for the jury on a Friday.

“Before we filed the motion, the U.S. Attorney’s Office wouldn’t commit to any timetable necessarily [for] when they would turn things over,” said Judith Mercier, the attorney representing AP. “And they actually didn’t turn over certain things, a couple of cassette tapes, things like that. And what the judge did here is set a timetable for them.”

Cooke said during the hearing that the delay in releasing the files, and the delay in reproducing the tapes, helps ensure the defendants receive a fair trial, according to the transcript.

“That is to guard against the inadvertent disclosure of evidence that has not been published to the jury,” the judge said, according to the transcript.

The order provides that one copy of the audio file in CD format must be provided to a designated representative of the media pool. From there, media members may make their own copies at their own expense.

Mercier said the group is pleased with the access it received from the order, although same-day access across the board would be preferable.

“We’re pleased that she gave us that,” Mercier said. “[We] would have liked everything the same day, but again this is something that committed them.”

Mercier said that although there is precedent at the district and circuit court levels for same-day access, the issue is within the discretion of the trial court.

The AP said in its motion that the U.S. Court of Appeals in Atlanta (11th Cir.) has recognized a right to inspect and copy court records, which is important to help the public appreciate the issues in litigation and how the legal system works.

“The presumption of access to judicial records can be overcome only in extremely limited circumstances and here there is no basis to overcome the presumption of access,” the AP motion states.

The AP also argued that it is routine for courts to “afford contemporaneous access to criminal trial exhibits, including audio tapes and video tapes.”

Mercier said she does not know whether there will be an appeal of Cooke’s order.

(U.S. v. Padilla, Media Counsel: Judith M. Mercier, Holland and Knight LLP, Orlando, Fla.)SH

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