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Parties debate judge’s right to limit access to court audio

A Baltimore woman is asking a judge to declare that the Baltimore City Circuit Court administrative judge exceeded his authority when he issued a broad order in April revoking the public’s general right to obtain audio recordings of court proceedings.

The Maryland Rules allow individuals to request audio recordings of hearings and trials and provide that the custodian of the recordings “shall make a copy” on written request. However, an exception to the rules provides that a request may be denied “as ordered by the court.”

Administrative Judge W. Michel Pierson issued an administrative order April 24 prohibiting the custodian from making copies available to anyone except parties to the case and their attorneys.

Justine Barron, a local reporter and blogger, filed suit in May after she was told that an administrative order prevented the court reporter from giving her an audio CD she had requested.

Attorneys for Barron argued at a hearing Thursday that the Maryland Rules conferred a right of access statewide and that Pierson cannot revoke the right indiscriminately. Attorneys for the defendants, who include Pierson and the court reporter, claim the administrative order falls under the “as ordered by the court” exception.

Barron is asking the judge to order the court reporter to provide her with the requested recording, as well as with a declaratory judgment that the administrative order is invalid.

Retired Court of Appeals Judge Irma S. Raker presided over the case Thursday by special assignment. She did not give a timeline for when she will rule.

Daniel B. Rice, an attorney with the Institute for Constitutional Advocacy and Protection, or ICAP, at Georgetown University Law Center, said the court was “in dire need of clarification” about whether Pierson is permitted to issue a “blanket order” that partially revokes a right under the rules.

“The defendants have made a remarkable claim of authority,” Rice said, arguing that it does not make sense to allow circuits to “opt out” of statewide rules by administrative order.

Rice said the Court of Appeals and the Standing Committee on Rules of Practice and Procedure wanted the rules covering access to court recordings to be uniform across the state. Retired Court of Appeals Judge Alan Wilner, who chairs the rules committee, confirmed in an interview Thursday that the high court wanted to standardize the rules on access to court recordings.

Rice said the court order exception should be construed to be “proceeding-specific” so that individuals requesting court recordings are denied only on a case-by-case basis. Pierson’s order has “no limiting principle” and exceeds his authority, Rice concluded.

However, Assistant Attorney General Michele J. McDonald told Raker that an administrative order is an order of the court by the plain meaning of the language and is “expressly authorized” by the rules.

McDonald also said Barron’s access has not been limited because she is still permitted to make an appointment to listen to recordings at the courthouse or to purchase transcripts.

“The only effect of this order … is that it would prohibit any broadcasting of the audio of this proceeding,” McDonald said, noting that “broadcasting” a recording of a criminal proceeding is prohibited under Maryland law.

The one-sentence order does not contain any reasoning for the policy, which McDonald said the rules do not require. She said that the change was not necessarily triggered by Barron’s request and that she was not aware that Pierson even knew about Barron’s work.

Barron was seeking audio of a motions hearing for the Baltimore police officers charged in connection with the death of Freddie Gray in 2015. Rice said Barron was working on a book and wanted court recordings as a resource as she conducts interviews.

McDonald said Pierson was aware of several recent incidents in which recordings were used in television and podcast episodes contrary to the statute.

Wilner said Pierson called him after he issued the administrative order and mentioned his concerns about the illegal broadcasting of recordings.

“My understanding is that in Baltimore city they were obeying (the law) until at least one podcaster or somebody violated it and claimed the right to violate it and that’s when Judge Pierson issued his administrative order,” Wilner said.

Wilner added that he and Pierson did not discuss the order in detail and that “no views were exchanged.” Wilner declined to take a position on whether the administrative order was a permissible way to restrict access to recordings but said he was aware of the lawsuit.

The case is Justine Barron v. Patricia Trikeriotis et al., 24C19002626.

Access and use of courtroom audio are the subject of another ICAP lawsuit in federal court that alleges the “broadcast ban” violates the First Amendment. The defendants have moved to dismiss and no hearing has been scheduled.

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