Thursday, August 19, 2010
Times Brief Defends Photographing of Defendant
By a MetNews Staff Writer
A Los Angeles Times photographer who took dozens of photographs of a defendant in a downtown courtroom two weeks ago acted properly, in accordance with the court’s permission, the newspaper argued yesterday in a brief to the Court of Appeal.
Attorneys for the newspaper, in a reply to a brief filed Monday by the Public Defender’s Office, reiterated previous arguments that nothing in the conduct of the photographer, Al Seib, warranted Judge Hilleri Merritt’s subsequent order barring publication of the photographs. The Times has characterized the judge’s order as imposing an invalid prior restraint in violation of the First Amendment and the California Constitution.
The attorneys representing Alberd Tersargyan had argued in their brief that Seib violated an earlier order—issued by a different judicial officer in response to a request by a different news organization, related to a different proceeding in the case—that barred photographing the defendant, due to identification issues.
They further argued that the Judicial Council form order signed by Merritt did not authorize photographing Tersargyan because a box on the form indicating whether a request has been granted or denied was not checked, and defense attorneys were not notified that it had been entered.
The newspaper’s attorneys yesterday scoffed at those arguments, asserting that the prior order by Commissioner Alan Rubin was irrelevant to the Aug. 4 hearing before Merritt, that any imperfection in the form was irrelevant because Merritt repeatedly acknowledged in open court that she had granted permission for Seib to take the pictures, and that defense lawyers had notice because they were present and saw the photographer take the pictures.
The newspaper’s lawyers—Kelli L. Sager, Alonzo Wickers IV, and Jeff Glasser of Davis Wright Tremaine LLP and in-house counsel Karlene Goller—distinguished Marin Independent Journal v. Municipal Court (1993) 12 Cal.App.4th 1712, cited by the defense. The Court of Appeal in that case 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 case is an “outlier,” the Times lawyers said, because no other case has found allegations of “unlawful” media behavior to warrant prior restraint. Nor are the facts analogous, they asserted, because Seib’s actions were entirely proper.
Merritt’s statements, both at the Aug. 4 hearing and at a hearing the next day on the Times’ motion to vacate the ban on publication, make clear that “there is no ambiguity and no dispute that she intended to grant, and did grant, permission for The Times to photograph the proceeding.”
The attorneys said it was “grasping and pointless” to argue about the contents of the form because it was undisputed not only that the judge said Seib could take the pictures, but that he confirmed this with the baliff and clerk, who checked back with the judge and obtained confirmation that she had approved the photography,
“...Mr. Seib’s behavior exhibits a diligence that contrasts sharply with the inaction of Mr. Tersargyan’s lawyer, who said nothing to Respondent about a prior order despite knowing that Mr. Seib was present to photograph the proceedings, and did not object when Mr. Seib took 45 photographs during the first 11 minutes of the hearing,” the attorneys insisted.
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