Tuesday, August 17, 2010
Public Defender Argues:
Photographer Had No Right to Take Pictures of Defendant
By KENNETH OFGANG, Staff Writer
A Los Angeles Times photographer who took several photos of a defendant charged with quadruple murder had no right to do so because an order allowing him to do so was defective, the Los Angeles Public Defender’s Office argued in a brief submitted yesterday.
The attorneys representing Alberd Tersargyan urged Div. Five of this district’s Court of Appeal to deny a writ petition by the Times, which is seeking to overturn Los Angeles Superior Court Judge Hilleri G. Merritt’s order blocking publication of the photos.
Times attorneys, under an order issued by the panel last week, have until tomorrow to respond to the brief. The Times contends that Merritt’s order amounts to a prior restraint, in violation of the First Amendment and its California analogue.
The photographer, Al Seib, took several dozen photos of Tersargyan on Aug. 4, 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 by the prosecutor of an order made by Superior Court Commissioner Alan Rubin at an earlier proceeding in the case. That order—which was obtained by another news organization—allowed media coverage, but expressly barred photographs of the defendant due to identification issues.
In the brief, signed by Deputy Public Defender Albert J. Menaster, the attorney contended that Seib likely never saw Merritt’s order permitting photography, and that there was “no actual order” because a box on the Judicial Council form indicating whether a request has been granted or denied was not checked, and defense attorneys were not notified that it had been entered.
Times attorneys have argued that the lack of a check mark is irrelevant, because Merritt clearly intended to allow the photographs to be taken prior to her being told about Rubin’s order. They have also argued that Rubin’s order is irrelevant because it related only to the prior proceeding.
The defense attorneys cited Marin Independent Journal v. Municipal Court (1993) 12 Cal.App.4th 1712, in which the Court of Appeal upheld the seizure of film from a photographer who did not have permission to photograph the proceedings. The photographer claimed to have understood permission to be granted because “when she entered the courtroom, she was given a wink and a nod by the courtroom bailiff.”
The appeals court concluded that there was no such permission, and that the court’s action in seizing the film was justified by the deliberate violation of the rule requiring court approval.
“It cannot be seriously maintained that a reporter could break into a sealed court file and remove a confidential document, or surreptitiously open a sealed search warrant affidavit including the name of a confidential informant cooperating with police at risk of life and limb, and remove it from the courthouse without permission,” the court said. “Nor could a reporter break into the courthouse and remove a sealed document and then rely on First Amendment absolution.”
Deputy Public Defender Rosette Isip, in a declaration appended to the brief, said she was unaware of Merritt’s order on Aug. 4 and that she approached Seib and told him of the prior order barring photography of her client. Seib, she said, replied “How would I know that?” and she told him to “[c]heck with the court clerk and the court file.”
She went on to say that she did not realize Seib was taking pictures of the defendant until the prosecutor noted it and informed Merritt of Rubin’s order.
“It is, of course, true that photographer Seib did not break into the courthouse and steal court documents,” the attorney said in their brief. “Nonetheless, he proceeded without having taken the basic stop of obtaining and reading the court’s order. Had he done so, he would have known that the written order was defective and did not grant the photography request.”
Times attorneys could not be reached for comment late yesterday.
Copyright 2010, Metropolitan News Company