Tuesday, August 10, 2010
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C.A. Sets Argument Today on Publication of Photos of Defendant
Justices, Acting Quickly on Newspaper’s Petition, Issue Alternative Writ of Mandate
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district has ordered a Los Angeles Superior Court judge to vacate orders barring the Los Angeles Times from publishing photos taken in court with permission, or show cause why she should not be directed to do so.
Justices Orville Armstrong and Sandy Kriegler of Div. Five, along with Los Angeles Superior Court Judge Sanjay Kumar, sitting on assignment, yesterday issued an alternative writ of mandate sought by the newspaper.
The alternative writ requires the trial court, after conferring with prosecutors and defense counsel in the case of Alberd Tersargyan, to file a return by 10:30 this morning, and to appear for argument at 11 a.m., if it will not vacate its orders made Wednesday and Thursday of last week.
Superior Court Counsel Fred Bennett said the court had not determined its position as of late yesterday, but that in responding to previous writs of this type, it has left it up to the parties to brief the issues rather than take a position itself.
Albert Menaster, the top appellate lawyer in the Public Defender’s Office, which represents Tersargyan, said at 5 p.m. yesterday that his office had not received a copy of the writ petition and alternative writ until two hours earlier and had not yet formulated a response.
The District Attorney’s Office did not object to the taking of the photographs.
Order to Stop
Times photographer Al Seib had taken several dozen photos of the defendant, accused of the murders of four people, including pictures of him wearing jail garb in lockup, before Judge Hilleri G. Merritt ordered him to stop. She further ordered the photographer and the newspaper “not to publish any photographs of the defendant taken from the proceedings of this date.”
The newspaper Thursday moved to vacate the publication ban as a prior restraint in violation of the First Amendment, but the judge stood by her original order.
Tersargyan is awaiting a trial in the killing of a woman in L.A.’s Little Armenia neighborhood in March. The judge Wednesday allowed prosecutors to file an amended complaint charging him with the 2008 slaying of the woman’s husband and 8-year-old daughter, as well as the murder of a prostitute on Sunset Boulevard earlier this year.
According to the court’s minutes, the case was before Merritt Wednesday for arraignment and the setting of a preliminary hearing when the judge was advised by counsel that there was a prior order prohibiting photographing or videotaping the defendant, in order to avoid identification issues.
The judge, who according to the minutes was unaware of the previous order, then ordered Seib to stop photographing and issued the ban on publication.
In its writ petition, filed by attorneys from the firm of Davis Wright Tremaine and by the paper’s in-house counsel Karlene Goller, the Times argued that the ban on publication of legally obtained material amounted to a prior restraint on the exercise of First Amendment rights.
Supreme Court Cases
It noted that the U.S. Supreme Court, in cases involving national security claims, disclosure of the names of crime victims, and publication of a defendant’s name and photograph, had held those interests to be insufficient to justify prior restraints on publication.
The Times also pointed out that the California appellate courts have erected a high barrier to prior restraints.
Copyright 2010, Metropolitan News Company