Wednesday, August 11, 2010
Court Gives Public Defender Time to Oppose Publication of Photos
Justices Hear Argument on Merritt’s Order but Put Off Decision
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday put off, until at least next week, a decision on whether to lift a judge’s order barring publication of photographs taken by a Los Angeles Times photographer of a quadruple-murder suspect.
The Div. Five panel, consisting of Justices Orville Armstrong and Sandy Kriegler and assigned Los Angeles Superior Court Judge Sanjay Kumar, gave attorneys for Alberd Tersargyan until next Monday to submit written arguments why the order should not be overturned as an unconstitutional prior restraint. Times attorneys would then have until next Wednesday to respond.
The court also ordered that complete transcripts of the trial court proceedings be filed by Monday.
The justices, however, rejected a request by Albert Menaster, the top appellate lawyer in the Public Defender’s Office, which represents Tersargyan, to continue yesterday’s oral arguments, which were scheduled in an alternative writ of mandate issued Monday.
Time Constraint Cited
Menaster said his office had not received a copy of the writ petition and alternative writ until 3 p.m. Monday and that he had only “about 20 minutes” to research the law.
The alternative writ required Los Angeles Superior Court Judge Hilleri G. Merritt to confer with prosecutors and defense counsel, and required the court to file a return to the writ if she did not vacate her orders of last Wednesday and Thursday, which she did not do at a chambers session yesterday morning.
Times photographer Al Seib last Wednesday had taken several dozen photos of the defendant, including pictures of him wearing jail garb in lockup, before Merritt, who had earlier allowed him to take the photos, 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 judge took that action after being informed of the prosecutor of an order made by Superior Court Commissioner Alan Rubin at an earlier proceeding in the case. That order allowed media coverage, but expressly barred photographs of the defendant due to identification issues.
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.
Menaster yesterday conceded that he was unaware of any precedent under which a newspaper could be barred from publishing materials that it had legally obtained. But he questioned whether Seib was acting lawfully, in light of Rubin’s prior order.
That order was issued in response to a California Rules of Court, Rule 1.150 coverage request by the Radio & Television News Association of Southern California.
Menaster argued that Seib’s taking of the photos was “deliberately unlawful” because one of the deputy public defenders representing the defendant told him of the prior order while he was setting up.
That contention drew a skeptical response from Kriegler, who noted that no objection was voiced to Merritt while Seib was taking the pictures and that the judge made no finding of any deliberate violation of a court order. “Are you saying that the photographer should abide by the order of a deputy public defender and not that of a Superior Court judge?” Kriegler asked.
But Menaster questioned the validity of Merritt’s first order allowing photography, since she was unaware of Rubin’s order and because a box on the Judicial Council form indicating whether a request has been granted or denied was not checked.
Kumar seemed doubtful. “ ‘I changed my mind’ is different than saying the order was invalid,” he said.
Times attorney Kelli Sager of Davis Wright Tremaine told the panel that the prior order was of little relevance because the rule gives each judge the right to determine whether, and to what extent, electronic media may cover a particular proceeding.
She vehemently defended Seib, and criticized Menaster for wanting “to sling mud at the Los Angeles Times.”
The photographer, she insisted, acted completely professionally, in accordance with Merritt’s form order, adding that the deputy public defender was looking at him while he was shooting but said nothing until the deputy district attorney brought the prior order to the judge’s attention.
Copyright 2010, Metropolitan News Company