Producers of a podcast series about Keith Davis Jr., who has been tried three times in the 2015 killing of a Pimlico Race Course security guard, plan to use audio from court proceedings and want the Maryland Judiciary not to enforce a state statute that prohibits the broadcasting of criminal matters heard in trial court.
A letter sent to Chief Administrative Judge W. Michel Pierson in Baltimore City Circuit Court by the Institute for Constitutional Advocacy & Protection at Georgetown University Law Center on behalf of journalist Amelia McDonell-Parry argues it would be “unlawful” for the judiciary to enforce the statute against McDonell-Parry and the “Undisclosed” podcast.
“Undisclosed” is an investigative reporting podcast that focuses on the criminal justice system. It has covered Baltimore-based cases, including those involving Adnan Syed and Freddie Gray, according to the podcast’s website.
“Ms. McDonell-Parry and Undisclosed enjoy a First Amendment right to use these lawfully acquired recordings on their upcoming podcast,” the letter states.
The institute sent the letter on McDonell-Parry’s behalf “as a matter of courtesy” and said it was willing to identify specific audio recordings she intends to use on the podcast so that the court can identify any state interests that might justify not using the clips, the letter states.
McDonell-Parry legally obtained the audio recordings from circuit court proceedings, which were open to the public, from the court reporter’s office. If the judiciary responds to the letter, McDonell-Parry has agreed to consider any information the court provides in deciding whether to use any specific audio clip in the podcast, the letter states.
“Maryland allows anyone in the world to obtain audio recordings of criminal trials, but its broadcasting ban stifles public discussion of those very same proceedings,” McDonell-Parry said in a news release.
A Maryland Judiciary spokeswoman confirmed the judiciary had received the letter but declined to comment on its contents. The Maryland Office of the Public Defender, which is representing Davis, also declined to comment on the letter.
“Baltimore’s court system is a matter of immense public interest, both locally and nationally,” Nicolas Riley, one of the attorneys who wrote the letter, said in a news release. “Journalists cannot be punished for trying to shine a light on that system, especially when they are using publicly available recordings to do so. In a moment of unprecedented attacks on the press, we should be deeply troubled by any efforts to punish journalists for exercising their First Amendment rights.”
Another podcast focusing on a Baltimore case nearly faced sanctions two years ago, when officials considered holding the producers of the “Serial” podcast in contempt for airing audio from the trial of Adnan Syed.
“Serial” producer Sarah Koenig told court officials that her team aired the audio in the 2014 podcast after receiving inaccurate legal advice about the state’s rules on courtroom audio and that the team agreed not to broadcast court proceedings in the future.
Rebecca Snyder, executive director of the Maryland Delaware DC Press Association, said forbidding the use of audio recordings in the “Undisclosed” podcast would be a “missed opportunity” to give the public a closer look at the criminal justice system.
“As part of the storytelling, especially in a podcast, you need the audio,” Snyder said.
Recently, the press association voiced its support for allowing cameras in the courtroom during a civil trial involving Baltimore City State’s Attorney Marilyn Mosby in Baltimore City Circuit Court. Under Maryland law, cameras are permitted in courtrooms during civil trials. However, Judge Shannon Avery denied the request to allow cameras in the Mosby matter.
“Even though civil trials are allowed to be recorded and broadcast, there’s never been a time when that’s been allowed,” Snyder said. “We testify each year that using audio or even still footage from a trial helps tell the story and helps shed more transparency into the judicial process and helps counteract the ‘Law & Order’ courtroom dramas that are so pervasive.”