Court: Judge Can't Bar Publishing of Lawful Photo

FREE PRESS -- The California Court of Appeal has ruled that once the Los Angeles Times lawfully took photos of a criminal defendant on court premises, the judge who gave permission could not constitutionally reverse herself and order it not to publish the pictures except as a last resort, reports Kenneth Ofgang in the Metropolitan News-Enterprise—and the judge failed that principle. 

A Los Angeles Superior Court judge’s order barring publication of photos that were taken of a defendant in the courtroom with the jurist’s permission is an unconstitutional prior restraint, the Court of Appeal for this district ruled yesterday.

Division Five, in an opinion by assigned Los Angeles Superior Court Judge Sanjay T. Kumar, ordered that Judge Hilleri G. Merritt’s order barring publication of the photos of Alberd Tersargyan be vacated.

Merritt revoked the order late yesterday in a minute order stating that both the order prohibiting the photography, and the order of the following day denying the motion of the Los Angeles Times to vacate the ban, were vacated “nunc pro tunc.” Court counsel Frederick R. Bennett declined to comment as to why the nunc pro tunc language was included.

The appellate court rejected the public defender’s assertions that the photographer took the pictures unlawfully because a prior order—made by another judicial officer, at an earlier hearing, in response to a request by a different news organization—barred taking pictures of the defendant, due to identification issues.

Justice Kumar pointed out in a footnote that Merritt stated in open court that she signed an order that permitted news cameras, before the prosecutor commented on the prior order.

By engaging in a balancing test and concluding that defendant’s right to a fair trial overrode the media’s First Amendment right, Kumar said, the trial judge failed to follow the many U.S. Supreme Court, California Supreme Court, and California Court of Appeal cases holding that a strong presumption lies against prior restraints.

As for the defense’s asserted interest in protecting the defendant from prejudice resulting from being photographed in jail garb, Kumar wrote:

Although the original order may have been issued to preserve the integrity of eyewitness identification, the record does not demonstrate it is substantially probable that either the integrity of the identifications or the defendant’s due process rights are at risk absent the prior restraint. For example, the record is devoid of evidence that eyewitnesses expressed uncertainty over their identification, that they have not already seen photographs of the defendant in the media, or that their ability to accurately identify the perpetrator of the offenses would be threatened by the publication of the photographs. Indeed, given the fact that the media has previously published photographs of the defendant in connection with the charges in this case, it is not probable that defendant’s right to a fair trial would be threatened by the publication of additional photographs.