Media reps, prosecutor split on how airing testimony should be banned

Alan D. Wilner is chair of the Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure.  (The Daily Record/File Photo)

News media representatives, a prosecutor, defense attorneys and a victims’ rights advocate failed to find common ground Tuesday in the Maryland Judiciary’s effort to devise a rule that would permit official audio recordings of criminal trials to be broadcast while respecting the witnesses’ safety and dignity and the defendants’ due process rights.

Attorneys for media groups – including The Daily Record – said the rule should state that the recording may be aired unless the presiding judge finds a compelling reason for prohibiting the broadcast. But Baltimore County State’s Attorney Scott D. Shellenberger said airing the testimony of rape and domestic violence victims should be banned, as well as the testimony of witnesses whose in-court statements put their lives in danger.

The discussion before a panel of the Judiciary’s Standing Committee on Rules of Practice and Procedure followed a federal judge’s December decision striking down as unconstitutional what had been a blanket ban on the broadcasting of official recordings of criminal court proceedings. Senior U.S. District Judge Richard D. Bennett, who sits in Baltimore, said the overbroad ban violated the First Amendment right to freedom of the press.

The Maryland Supreme Court last month rejected the Rules Committee’s proposed emergency amendment, which left the ban largely intact, and instructed the panel to get greater input from media groups that opposed the proposal.

Shellenberger, an outspoken supporter of the original broadcast ban, said his position necessarily softened after Bennett’s decision and the Supreme Court’s rejection.

“We need to do something besides ‘just say no,’ ” Shellenberger told the Special Subcommittee on Broadcasting Recordings of Criminal Proceedings. “I recognize that me just saying ‘no’ isn’t going to work anymore.”

The prosecutor said a broadcast ban should still apply to victim of sex crimes and witnesses who could be killed for testifying for the state. He likened such a prohibition to the longstanding practice of news organizations not printing or broadcasting the names of rape victims.

News media representatives agreed that the hypothetical testimony of a 10-year old girl sexually assaulted by her grandfather should not be aired.

But media attorney James McLauglin said such a traumatic example should not justify the imposition of “global rules” regarding whose recorded testimony cannot be broadcast.

A presumption of the First Amendment right to broadcast must apply in all cases and be rebutted only by the state’s showing of a compelling interest – such as the well-being of a child victim – why the testimony must not be aired, added McLaughlin, The Washington Post’s deputy general counsel.

Fellow media attorney Maxwell S. Mishkin agreed, saying the “default” position under the First Amendment is that the recorded testimony may be aired absent a strong showing by the state that the testimony should be closed off.

“When a party is seeking closure, that party should bear the burden of justifying closure,” said Mishkin, of Ballard Spahr LLP in Washington.

Attorney Nathan Siegel also opposed Shellenberger’s categorical listing of witnesses whose recorded testimony should not be broadcast, saying courts should “honor the presumption” that testimony may be aired.

“The problem with categorical rules is that there are always exceptions,” said Siegel, of Davis Wright Tremaine LLP  in Washington. “Sometimes victims want to speak out to the press. If the victim wants their story to be told, the story is going to be told.”

Rebecca Snyder, executive director of the Maryland-Delaware-DC Press Association, told the subcommittee that “this is not the Wild West.”

“We all want guardrails to protect the vulnerable” witnesses, Snyder said. But the coming rule, while providing guidance for judges, should not set categorical prohibitions, she added.

Shellenberger, however, said justice would be better served by having categories of witnesses whose privacy is inherently a compelling state interest and thus whose testimony could not be broadcast. Otherwise, judges would have to stop trials to determine if the recorded testimony could be broadcast, he added.

“My people (in the state’s attorney’s office) don’t have the time to litigate this on a case-by-case basis,” Shellenberger said.

Maryland Appellate Court Judge Douglas R.M. Nazarian, a subcommittee member moderating the discussion, said trial judges perhaps do not need Shellenberger’s “laundry list” of witnesses whose testimony cannot be aired but they will need the guidance of “broader principles about how to draw the line in the closer cases.”

Nazarian also expressed concern with what he called the media lawyers’ proposal of “no standards other than the opportunity to litigate” whose testimony may be aired.

Judges must have guidance to “avoid a trial within a trial,” Nazarian said.

“Everybody is better off knowing the rules in advance,” he added. “If it’s going to be case by case every single time, it’s going to slow down the process and I don’t think anyone wants that.”

Kurt Wolfgang, executive director of the Maryland Crime Victims’ Resource Center, said the rules committee should “err on the side of caution” and recommend that victims’ recorded testimony be shielded from broadcast.

“It is not a case-by-case matter,” he said. “The more they are identified in public, the less they’ll want to testify.”

Baltimore City Circuit Judge Yvette M. Bryant said many witnesses have a compelling reason for not having their testimony broadcast.

“Witness intimidation does not end with the trial; that’s when it begins,” Bryant told the subcommittee. “It’s a very real concern. If we can’t get witnesses, we can’t get convictions. That’s the bottom line.”

Assistant Maryland Public Defender Brian Zavin and Erica J. Suter, of the Maryland Criminal Defense Attorneys’ Association, said any rule that emerges should protect the due process rights of defendants.

Despite the disparate views, Rules Committee Chair Alan M. Wilner ended the 90-minute meeting by saying, “I think we’re seeing some coalescence here,” albeit “not complete.”

He asked the participants to supplement their comments with written testimony to the subcommittee by Feb. 17.