FREE PRESS -- The California Court of Appeal has ruled that once the Los Angeles Times lawfully took photos of a criminal defendant on court premises, the judge who gave permission could not constitutionally reverse herself and order it not to publish the pictures except as a last resort, reports Kenneth Ofgang in the Metropolitan News-Enterprise—and the judge failed that principle. 

A Los Angeles Superior
Court judge’s order barring publication of photos that were taken of a
defendant in the courtroom with the jurist’s permission is an unconstitutional
prior restraint, the Court of Appeal for this district ruled yesterday.

Division Five, in an opinion
by assigned Los Angeles Superior Court Judge Sanjay T. Kumar, ordered that
Judge Hilleri G. Merritt’s order barring publication of the photos of Alberd
Tersargyan be vacated.

Merritt revoked the order late yesterday in a minute
order stating that both the order prohibiting the photography, and the order of
the following day denying the motion of the Los Angeles Times to vacate the
ban, were vacated “nunc pro tunc.” Court counsel Frederick
R. Bennett declined to comment as to why the nunc pro tunc language was
included.

The appellate court
rejected the public defender’s assertions that the photographer took the
pictures unlawfully because a prior order—made by another judicial officer, at
an earlier hearing, in response to a request by a different news
organization—barred taking pictures of the defendant, due to identification
issues.

Justice Kumar pointed out in a
footnote that Merritt stated in open court that she signed an order that
permitted news cameras, before the prosecutor commented on the prior order.

By engaging in a
balancing test and concluding that defendant’s right to a fair trial overrode
the media’s First Amendment right, Kumar said, the trial judge failed to follow
the many U.S. Supreme Court, California Supreme Court, and California Court of
Appeal cases holding that a strong presumption lies against prior restraints.


As for the defense’s
asserted interest in protecting the defendant from prejudice resulting from
being photographed in jail garb, Kumar wrote:

Although the original
order may have been issued to preserve the integrity of eyewitness
identification, the record does not demonstrate it is substantially probable
that either the integrity of the identifications or the defendant’s due process
rights are at risk absent the prior restraint. For example, the record is
devoid of evidence that eyewitnesses expressed uncertainty over their identification,
that they have not already seen photographs of the defendant in the media, or
that their ability to accurately identify the perpetrator of the offenses would
be threatened by the publication of the photographs. Indeed, given the fact
that the media has previously published photographs of the defendant in
connection with the charges in this case, it is not probable that defendant’s
right to a fair trial would be threatened by the publication of additional
photographs.