state vs. zimmerman: wftv, inc. motion to intervene

8/2/2019 State vs. Zimmerman: WFTV, Inc. Motion to Intervene

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,.IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUITIN AND FOR SEMINOLE COUNTY, FLORIDA

STATE OF FLORIDA,Plaintiff,

vs. Case No: 592012CFOOI083AGEORGE ZIMMERMAN,

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_ , . . , r : - ? ' : : . : - : j til..- \:Jl = - . ~ n.WFTV, Inc., d/b/a WFTV-TV; Orlando Sentinel Communications Comp~y, p~lishdfbf ;:;

MOTION TO INTERVENE FOR THE LIMITED PURPOSE OFO PPO SIN G CLO SURE O F JUDIC IAL AN D PU BLIC RECORDS

CD -..: N((1 ~.-7 ;:0~C) Cj'\; - . , -0n _"0 - -.--_'-7

Defendant. _-J _/- - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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-,the Orlando Sentinel; and Sun-Sentinel Company, publisher of the South Florida Sun-Sentinel(collectively "Media Intervenors"), move to intervene in this action for the limited purpose ofopposing continued closure judicial and public records in this matter. In support thereof, theMedia Intervenors state as follows:

1. The Media Intervenors are local, Florida, news organizations that have coveredthe shooting of Trayvon Martin, the public outcry resulting from the tragic event and thesubsequent arrest of George Zimmerman, and will continue to report on this importantprosecution. In its role as a surrogate to the public and keeping the public informed about thiscase, the Media Intervenors attend court proceedings and rely upon state, county and local publicrecords, as well as judicial records, as part of their newsgathering process.

2. During the Defendant's first appearance, counsel requested that the Court sealmaterials that would be filed with the Clerk or provided to the Defendant in discovery. The State


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BackgroundThe facts of this case already have been publicized and are well known. On the night of

February 26, 2012, Trayvon Martin was shot and killed by George Zimmerman. Precisely whathappened that evening is unclear. George Zimmerman claimed that he was attacked by TrayvonMartin and acted in self-defense. Trayvon's family, however, urged that the George Zimmermanwas the aggressor when he shot and killed the unarmed teenager. The Sanford PoliceDepartment did not arrest or charge the Defendant.

In ensuing weeks from that horrific night, rallies and protests occurred locally,throughout the State, and across the nation, a special prosecutor was assigned to the case, thePolice Chief took a leave of absence and received a no confidence vote from the CityCommission, the federal government began investigating possible civil rights violations, and theGovernor appointed a special task force to review Florida's "Stand Your Ground" law. Then, onApril1l, 2012, George Zimmerman was arrested on charges of second degree murder. Theprobable cause affidavit states that the Defendant pursued Trayvon Martin despite being told tostay in his vehicle. The Defendant then confronted Trayvon Martin, a struggle ensued and theDefendant shot Trayvon in the chest, according to the public charging document.

This generated intense public debate about racial profiling, Florida's stand your groundlaw and the competency of law enforcement. But that policy debate has not, nor can it, create amaterial or imminent threat to the administration of justice. Nor has the Defendant met his

substantial burden to demonstrate facts that would support such a finding by clear andconvincing evidence.

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AnalysisThe public enjoys a presumptive right of access to court proceedings and records that is

rooted in both constitutional and common law. See Richmond Newspapers. Inc. v. Virginia. 448U.S. 555 (1980). These rights attach to all phases of criminal proceedings. See. ~ PressEntemrise v. Superior Court, 464 U.S. 501, 508 (1984) ("Press Enterprise I") (Openness incriminal proceedings "enhances both the basic fairness of the criminal trial and the appearance offairness so essential to public confidence in the system."); Press Enterprise v. Superior Court,478 U.S. 1 (1986) ("Press Enterprise II". "Public access to the courts is an important part ofthe criminal justice system, as it promotes free discussion of governmental affairs by imparting amore complete understanding to the public of the judicial system." Miami Herald Publishing Co.v. Lewis, 426 So. 2d I, 6 (Fla. 1982). Moreover, the right of access to public records in Floridais of constitutional magnitude. Art. I, 23-24, Fla. Const.

Consideration of whether to conceal judicial records "must begin with the propositionthat all civil and criminal court proceedings are public events, records of court proceedings arepublic records and there is a strong presumption in favor of public access to such matters."Herald~Tribune Communications v. Watson. 615 So. 2d 768, 770 (Fla. 5th DCA 1993). Thatpresumption is codified in Florida Rule of Judicial Administration 2.420. Before court or publicrecords may properly be sealed, this Court must specifically identify the factors that threaten theadministration ofjustice and weigh all reasonable alternatives to mitigate the perceived threats.See, e.g., Fla. R. Jud. Admin. 2.420.2

2 Because no sealing order was entered and no findings made, records in this proceeding havenot been properly sealed. Carter v. Conde Nast Publications, 983 So. 2d 23 (Fla. 5th DCA 2008)(addressing burdens for unsealing records in civil context); see also Florida Freedom(footnote continued on next page)


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Specifically, this Court must apply the three-part test established in Miami HeraldPublishing Co. v. Lewis:

a. Restricting public access to discovery material is necessary to prevent a serious andimminent threat to the administration of justice;

b. No alternatives, other than a change of venue, would protect the defendant's right to afair trial; andc. Closure would be effective in protecting the rights of the accused, without beingbroader than necessary to accomplish this purpose.

426 So. 2d 1,6.3 The Defendant bears the burden of demonstrating "a strict and inescapablenecessity for closure." Id. at 8. Here, the Defendant has not even addressed, much lessattempted to meet, this burden.I. Secrecy is Not Necessary.

The defense has not specified what information might threaten the Defendant's fair trialrights and instead seeks a drastic and extreme remedy - closure of all records. Simply put, theDefendant wants to veil these public proceedings in a complete shroud of secrecy. However, theDefendant has not established that the potential release of any record poses an imminent threatto his fair trial rights. The blanket closure of an entire court file and all discovery in a Floridacriminal court proceeding is unprecedented.

To be sure, the fact that this case is a high profile case does not provide the Defendantwith a unique privilege to shut down public information. As the Florida Supreme Court has

Newspapers v. McCrary, 520 So. 2d 32, 35 (Fla. 1988) ("A finding of cause to restrict or deferdisclosure of (public] records cannot rest in air.")

3 This test also applies to requests to close discovery. Florida Freedom Newspapers v.McCrary, 520 So. 2d 32 (Fla. 1988); Times Pub. Co. v. State, 903 So. 2d 322, 325 (Fla. 2d DCA2005) (once discovery information is disclosed to a criminal defendant, that informationbecomes non-exempt public record).

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noted, pretrial publicity in topical criminal cases is inevitable. Rolling v. State, 695 So. 2d 278,285 (Fla. 1997). Therefore, media attention alone is not a sufficient basis for secrecy. See, e.g.,Provenzano v. State, 497 So. 1177, 1182 (Fla. 1986).4 If extensive news coverage alonewarrants closure of public records, the constitutional and statutory rights of access do not exist inthe very cases the public is most interested in following. Indeed, heightened public attentiononly increases the need for the "appearance of fairness so essential to public confidence in the

. system." Press Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 508 (1984). To be sure,publicity is vital to an open and accountable judicial system. As former Supreme Court Chief

Justice Berger wrote: "Without publicity, all other checks are insufficient: in comparison ofpublicity, all other checks are of small account." Id. at 509.

Moreover, this case is in its infancy. The fact that trial is, at the very least, severalmonths away diminishes the seriousness of any perceived threat. See Murphy v. Florida, 421U.S. 794, 802 (1975); Rolling, 695 So. 2d at 285, There is no reason to believe that the releaseof material now will affect the fairness of the trial. By that time, jurors likely will have forgottenany news reports (assuming that they have even read the newspaper stories or watched televisionaccounts in the first place), See State v. Bennett, 19 Media L. Rep. 1383, 1384 (Fla. 13th Cir. Ct.Sept. 26, 1991) (copy attached as Exhibit A). Because jurors often never see news reports oroften forget the reports they have seen, "the feared impact on the fair trial rights of criminaldefendants often does not occur - even in matters that have extensive media coverage." Id.; seealso State v. McTear, 37 Media L. Rep. 2209, 2211 (Fla. 13th Cir. Ct. June 17,2009) ("[t]he fact

4 Jurors need not be totally ignorant of the facts of the case. They only need to be free fromany preconceived notion. Rolling, 695 So. 2d at 285. And, Florida courts routinely successfullyselect juries in even their most high profile cases. Indeed, careful measures injury selection,including individualized voir dire, avoid prejudicial effects of even pervasive adverse publicity.See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 563-64 (1976); Lewis, 426 So. 2d at 8.

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that new evidence or opinions can be expected to arise during the discovery process does notmilitate against" the release of criminal discovery in a high profile case) (copy attached asExhibit B). Concerns at this stage that potential jurors may be tainted by media accounts simplyare not supportable. Clearly, those concerns are insufficient grounds to justify closure of allrecords in this important case.II. Less Restrictive Alternatives Would Suffice.

Before restricting access to discovery in this case, the Court must consider alternatives,other than a change of venue, that would protect the Defendant's right to a fair trial. Lewis, 426So. 2d at 6. This Court can protect that right by less restrictive means than sealing all records.Careful measures injury selection, including individualized voir dire, avoid prejudicial effects ofeven pervasive adverse publicity. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 563-64(1976); Lewis, 426 So. 2d at 8; McTear, 37 Media L.Rep. at 2211 ("Testing the impartiality ofpotential jurors in this case is ultimately best left to the process of voir dire. "). Stem instructionsto the jury as to their sworn duty to decide the issues based only upon the evidence, sequestrationof the jurors, and selections from a large panel are all traditional alternatives to change of venue.Nebraska Press, 427 U.S. at 563-64; Lewis, 42 So. 2d at 8. At this stage of the proceedings,there is no reason to fear that these alternatives would be insufficient.III. The Request for Blanket Closure is Overbroad.

Finally, any closure order must be effective in protecting the rights of the accused,without being broader than necessary to accomplish this purpose. Lewis, 426 So. 2d at 6. Muchinformation about this case already has been published. As the Florida Supreme Court noted inLewis, if information already has been made public, "there would be little justification forclosing a pretrial hearing in order to prevent only the disclosure of details which had alreadybeen publicized." Id. at 8. Similarly, in this case, to the extent that prejudicial information

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already has been made public, closure of such details would be unnecessary and, consequently,not effective. .Additionally, the Defendant requests that this Court prevent the disclosure of all records- whether prejudicial or not. Clearly, this request is overbroad and not aimed at protecting theDefendant's fair trial rights. Indeed, in one of the most highly publicized capital cases in Floridahistory - the prosecution of the serial murder of five college students in Gainesville - the trialjudge rejected just such a request. "The request for a blanket prohibition of all materials thePublic Defender will receive in discovery is too broad and premature." See State v. Rolling, 20

Media L.Rep. 1127, 1129 (Fla. 8th Cir. Ct. March 10, 1992) (copy attached as Exhibit C).Similarly, in the recent high profile case of State v. Casey Anthony, the Court declined anyblanket closure of information and instead considered each request for closure on a case-by-casebasis - the majority of which were denied. See Composite Exhibit D (sampling of orders fromState v. Casey Anthony), Despite the publicity involved in the Case Anthony case, theDefendant received a fair trial and the public was able to monitor the case without unnecessary,blanket sealing of the court file or discovery. In this case, any closure order that is not gearedonly to highly prejudicial information would be unduly restrictive.

ConclusionThe Defendant's request for blanket closure of the court file and discovery seeks an

unprecedented remedy. Closure of judicial or public records in Florida should only be orderedon a specific basis when there is a manifestly overwhelming threat to the Defendant's right toreceive a fair trial. And even then, alternatives must be considered and restrictions must benarrow, This criminal case has already raised serious questions - from all sides - about the

8

ability of government to do its job and protect its citizens. Florida's historically open and


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transparent judicial system should not compound such suspicions by operating in the dark in thiscase.

Respectfully submitted,

~,""",."",,,, .LJ. ugFlorida BarNo. 01440400 N. Ashley Dr., Suite 1100Tampa, Florida 33602(813) 984-3060(813) 984-3070 (Fax)David S. BralowFlorida Bar Number 0802727Tribune Company220 E. 420d Street, 4thFloorNew York, NY 10017Telephone: (212) 210-2893Facsimile: (212) 210-2883Attorneys for the Media Intervenors

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy has been furnished by facsimile and

u.s. Mail, this 16th day of April 2012, to Angela B. Corey, Esq., Special Prosecutor, Office ofthe State Attorney, Fourth Judicial Circuit, 220 East Bay Street, Jacksonville, Florida 32202; andMark O'Mara, Esq., 1416 East Concord S

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Media Law Reporter Page 1 of 2

Bloomberg Media Law Reporter"BNASource: Media Law Reporter Cases> Florida> Florida v, Bennett, 19 Med.L.Rptr. 1383 (Fla. Cir. Ct. 1991)

19 Med.L.Rptr. 1383Florida v. Bennett

Florida Circuit Court, Thirteenth Judicial Circuit, Hillsborough CountyNo. 91-7942

September 25, 1991THE STATE OF FLORIDA v. ROBERT LEE BENNETTHeadnotesNEWSGATHERINGAccess to records-Judicial-Criminal-Pre-trlal/discovery ("38.1505.04)Criminal defendant who is charged with attempted murder and arson for alleged burning ofindividual is not entitled to protective order requiring state to file "Will iams Rule" notices andevidence under seal until pre-trial determination of admissibility, in view of defendant's failure toshow that such closure is necessary to prevent serious and imminent threat to administration ofjustice.Case History and DispositionMotion by criminal defendant for protective order.Motion denied without prejudice.AttorneysCarol Jean LoCicero, of Holland & Knight, Tampa, Fla., for The Tribune Co.Dale SiSCO,Tampa, for the state.RochelleA. Reback, Tampa, for defendant.

EXH IB IT "A ll

Opinion TextOpinion By:Mitcham, J.:Full Text of OpinionThis cause.carne to be heard on Wednesday, September 11, 1991, on Defendant Robert Lee Bennett,Jr.'s ("Bennett") Motion for Protective Order to Require the State to File all Proposed"Will iams Rule"Notices and Evidence In Camera, Under Seal Until Pre-trial

Page 1384Determination of Admissibility Pursuant to Rule 3.220(1) and (rn), filed August 14, 1991. That motionis denied.Bennett is charged with attempted murder and arson for the alleged burning of a man. Area mediahave covered Bennett's arrest and this prosecution.Becauseof concerns about publicity, Bennett moved this Court for a protective order. Bennett soughtto require the State to file any "Williams Rule" notices in camera and to have any hearing concerningthose notices closed. Bennett is concerned that the material contained in any "Williams Rul~unotice

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" "" -"" --- ------------------------,

. Media Law Reporter Page 2 of2

will be prejudicial and might threaten his right to a fair trial.The Tribune Company (the "Tribune"), publisher of The Tampa Tribune intervened to oppose Bennett'smotion based on the first Amendment to the United States Constitution; Article I, Section 4 of theFlorida Constitution, the Florida Public Records Act and the common law right of access. The Courtfinds the Tribune has standing becauseBennett's motion impacts on the publlc right of access tojudicial proceedings and the Tribune's newsgathering abilities. Miami Herald Publishing Co. v. Lewis,426 So.2d 1(Fla. 1982).The Court also finds that the notice at issue constitutes a public judicial record subject to the public'srights of access. Before the requested closures can occur, Bennett must demonstrate that:1. closure is necessary to prevent a serious and imminent threat to the administration of justice;2. no alternatives are available, other than change of venue, which would protect Bennett's right to afair tr ial; and3. closure would be effective in protecting Bennett's rights, without being broader than necessary toaccomplish this purpose.Lewis, 426 SO.2d at 3. See also Florida Freedom Newspapers, Inc. v. McCrary, 520 So.2d 32 (Fla.1988).The Court first f inds that this case does not involve the kind of extensive and prejudicial pre-trialpublicity which justifies the sealing of judicial records and closure of judicial proceedings. For example,the Tribune has written only seven articles. The last article prior to this hearing was written over fiveweeks ago, on August 5, 1991.The Court has tried controversial cases before. The Court was involved in the trial of a HillsboroughCounty Circuit Judge which received extensive publicity. In that case, the Court had no trouble seatinga fair and impartial jury. In addition, this last year the Court tr ied four high profile first-degree murdercases. There were three acquittals out of those four cases. In none of those instances did this Courthave any problem seating a jUry.A significant number of the public does not retain what is disseminated by the media or, simply. doesnot read newspapers or watch television. As a result, the feared impact on the fair trial rights ofcriminal defendants often does not occur - even in matters that have received extensive mediacoverage.The Court ' inds that Bennett has simply failed to establish a factual basis to support the presentmotion. Closure is not necessary to prevent a serious and imminent threat to the administration ofjustice. Closure is not necessary to achieve the Court's purpose of guaranteeing the defendant a fairand impartial trial. Because the Court is not ordering closure. It need not consider the alternativemeasure prong of Lewis here.If there is a wave of publicity and an absolute media assault upon the community Including verydamaging stories, Bennett may renew this motion.Based on the foregoing, it isORDEREDANDADJUDGEDthat Bennett's motion for protective order is DENIEDwithout prejudice.

- End of Case -

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Media Law Reporter Page 1 of4

Bloombel '1gBNA Media Law Reporter:~JSource: Media Law Reporter Cases> Florida> State v. McTear, 37 Med.L.Rptr. 2209 (Fla. Cir. Ct. 2009)

37 Med.L.Rptr. 2209State v. McTear

Florida Circuit CourtThirteenth CircuitHillsborough County

No . 09-CF007933June 17, 2009

STATE OF FLORIDA v. RICHARD ANTHONY MCTEARHeadnotesREGULATION OFMEDIA CONTENTII] Prior restraints - Fair trial restraints -In general ("5.1001)Fair trial, free press - Restrictive orders in criminal proceedings - Pre-trial ( ....8.0501)NEWSGATHERINGAccessto records - JUdicial - Criminal - Pre-trial/discovery (....38.1503.04)Restraints onaccessto information - Fair trial ( ....50.17)Defendant's motion, in murder, kidnapping, aggravated child abuse, burglary, battery, and falseImprisonment case, for temporary protective order with respect to release of discovery material,to prohibit discovery from becoming subject to Public RecordsAct until either it has been reviewedin camera and found non-prejudicial to defendant's constitutional rights, criminal charges areadjudicated or dismissed, or jury has been selected and sequestered, and defendant's request forgag order prohibit ing law enforcement and other state and local government employees frommaking extrajudiCial comments, are denied, despite extensive electronic and print media coverageof events surrounding criminal allegations, since discovery materials in possession of statebecome available to media and public under Public RecordsAct when they are furnished todefendant, since requested protective order would constitute prior restraint on speech, since, atthis point in proceedings, it is premature to characterize current adverse publiCity as senous andimminent threat to administration of justice, since it has not been shown that defendant's right tofair trial is In any reasonable way threatened by reports surrounding trial and parties, sinceargument that members of public wllliack impartiality due to existence of adverse reports in newsis not compeltin9, since court has responsibility to ensure fundamental fairness of proceedings,and possesses inherent authority to take any means necessary to ensure such fairness, sincetesting Impartiality of potential jurors is best left to voir dire process, since in camera review ofdiscovery is not required to ensure fair trial before impartial jury, and since gag order is notnecessary, in that officers of court are expected to meet professional obligations.Case History and DispositionCriminal prosecution, in which defendant moves for temporary protective order with respect to releaseof discovery material and to prohibit law enforcement and other state and local governmentemployees from making extrajudiCial comments.Denied.Attorneys EXHIBIT "B"

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Jalal A. Harb, State Attomey's Offl(;e, Tampa, Fla., for State of Florida.Theda R. lames and Mike Peacock,Tampa, for defendant.Gregg D, Thomas and Rachel E. Fugate, of Thomas & LoCicerol Tampa, Fla., for Tampa Tribune,WFLA-TV, and WTVT-TV.Alison M. Steele and Layla K. McDonald, of Rahdert Steele Bole & Reynolds, St. Petersburgl Fla., forTimes Publishing Co.Opinion TextOpinion By:Holder, J.:THIS MAnER comes before the Court on this 17th day of June, 20091 on the Defendant's VerifiedMotion for Temporary Protective Order with Respect to Discovery Material Becoming Subject toChapter 119 and to Prohibit Agents and Employees of the Hillsborough County State Attorney's Office,the Hillsborough

Page 2210County Sheriff's Office, the Hillsborough County Clerk's Officel the Public Defender's Office, theHillsborough County Medical Examiner's Office and the Flonda Department of Law Enforcement fromMaking Extrajudicial Comments and Motions for Evidentiary Hearing, Request for Judicial in cameraReviewand Memorandum of Law in Support Thereof (the "Defendant's MotionOl), filed pursuant toFlorida Rule of Criminal procedure 3.220, on June 11, 2009.In his motion, the Defendant requests that this Court enter a protective order limiting the availabil ityof discovery under the PubliCRecordsAct, Chapter 119, Florida Statutes (the Public RecordsAct).Defendant requests that no discovery be permitted to become subject to the Public Records Act either:

1. Until it has been reviewed In camera and found by the Court to benon-prejudicial to Defendant's constitutional rights;2. Until such time as the criminal charges against Defendant are finallydetermined by adjudication, dismissal, or other final disposition; OR,3. Until such time as a jUry has been selected and sequestered.The Defendant also requests that the Court issue a gag order. More specifically, Defendant requeststhe Court order the agents and employees of the Hillsborough County State Attorney's Office, theHillsborough County Sheriff's Office, the Hillsborough County Clerk of Court's Office, the PublicDefender's Office, the Hillsborou9h County Medical Examiner's Office and the Florida Department ofLaw Enforcement to refrain from making any extrajudiCial comment concerning this cause, the parties,or any issue related to these matters during the pendency of this matter and until such time as thecase is finally determined by adjudication, dismissal, or other final disposition. The Court havingconsidered the motion and attachments, the court file and record, as well as the argument of counselfor the State of Florida, this Defendant as well as the various local medial finds as follows:

The Defendant in this cause was arrested on May 5, 2009, for Murder in the First Degree, Kidnapping,Aggravated Child Abuse, Burglary of a Dwelling, Felony Battery, False Imprisonment, Burglary of aDwelling with Assault or Battery, and Battery. The Defendant was indicted in CaseNo. 09-CF-7933,and arraigned on May 20, 2009, for Murder in the First Degree, Burglary of a Dwell ing with Assault orBatterv, Aggravated Child Abuse, Kidnapping with Harm or Terrorizing, and Battery SecondorSubsequent Offense. By and through Counsel, the Defendant pled not guilty to all charges in 09-CF7933 and demanded discovery from the Office of the State Attorney pursuant to Rule 3.220,Fla.R.Cr.P.[ 1 ] The Court notes the extensive electroniC and print media coverage of the events surroundingthese criminal allegations against this Defendant.The Public Records A(;t was enacted by the legislative and executive branches of this stategovernment to ensure that the public receives virtual total accessto matters which are part of thepublic record. Discovery materials in the possession of the State become available to the media andthe public under the Public RecordsAct when they are furnished to a defendant. See Satz v.

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M edia L aw R eporter Page 3 of4Blankenship, 407 So. 2d 396 [7 Med.LRptr. 2576] (Fla. 4th DCA 1981).The Defendant's requested protective order would constitute a prior restraint on speech which bearsthe presumption of constitutional invalidity. See, State ex. ret. Miami Herald Pub. Co. v. McIntosh,340 So. 2d 904, 908 [2 Med.L.Rptr. 1328] (Fla. 1977). A member of the press, under certaincircumstances, may be properly considered a representative of the public and both the public and thepress have both a constitutional and statutory right to see and know what occurs within theircourtrooms. See McIntosh, ki. This Court has long noted the absolute responsibil ity of the Judiciary asthe third "separate but equal" branch of our state government to ensure the rights of all citizens ofthis great State. As such, the Court must consider the rights of the public to full knowledqe of theactivities involved within these proceedings. It is only through such public scrutiny and supervisionthat any branch of government can effectively and honestly function consistent with our obligation andoath to perform our duties as a government of, by, and for the people. It is this transparency withrespect to all judicial activities and action that leads to public trust and

Page 2211confidence in these pre-trial and trial proceedings. It is ultimately this public trust and confidencewhich ensures fundamental fairness for this Defendant. Against these concerns, a court must balancethe rights of a criminal defendant to a fair tr ial, which include a fair and Impartial jury.The Defendant argues that the publicity in this case has been pervasive and prejudiCial to hisconstitutional rights. He argues that the potential jury pool might become tainted with additionaladverse publiCity. He states that his ability to receive a fair trial in this county stands in danger ofbeing prejudiced without the requested protective order and a gag order.In reviewing the motion, this Court has carefully considered and balanced the factors set forth inMiami Herald Pub. Co. v. Lewis, 426 So. 2d 1 [8 Med.L.Rptr. 2281J (Fla. 1983). These factors requirethat this Court consider the following: 1) whether the restriction Is necessary to prevent a serious andimminent threat to the administration of justice; 2) whether there are other alternatives available,apart from a change of venue, which would protect a defendant's right to a fair trial. and, 3) whetherthe restrictions would be effective In protecting the rights of the accused.At this point in these proceedings, it is premature to characterize the current adverse publicity as aserious and Imminent threat to the administration of justice. It has not been shown that Defendant'sright to a fair trial is in any reasonable way threatened by the reports surrounding the trial and theparties. The argument that members of the public will lack Impartiality due to the existence of adversereports in the news Is not compelling. Moreover, this Court has the responsibil ity to ensure thefundamental fairness of these proceedings and possesses the inherent authority to take any meansnecessary to ensure such fairness.For some members of the public, these matters are an important event and are worthy of publicdiscussion. This does not imply the partiality of these individuals; merely their interest and theirabsolute right to be informed of these proceedings and this process. For others in the community, theevents giving rise to this case may have been noted and dismissed. And yet, for some members of thecommunity, even these reports noted by the Defendant, have drawn no interest or attention.Ignorance of such publicity may yet ensure their impartiality. Testing the impartiality of potentialjurors in this case is ultimately best left to the process of voir dire. The fact that new evidence oropinions can be expected to arise during the discovery process does not militate against thisconduslon. Further, it is axiomatic that this casewill not reach trial in the near future due to theprotracted nature of discovery and pretrial matters In cases carrying even the potential of the ultimatepenalty.The Court finds that in camera review of discovery is not required to ensure that this Defendantreceives a fair trial before an Impartial jury. The Court likewise finds that a protective order prohibitingdiscovery from becoming subject to the Public Records Act is not necessary to ensure that Defendantreceives a fair trial before an impartial jurv. As for the gag order, the Court notes that Rule 4"3.6 ofthe Rules Regulating the Florida Bar spectttcanv prohibits an attorney and an attorney's agents oremployees from making any prejudicial extrajudicial statements. A gag order is, quite simply,unnecessary at this time as this Court fully expects and hereby Orders all Officers of this Court tomeet their professional obligations consistent with their Oath to GOd,when sworn as members of TheFlorida Bar.For the foregoing reasons, it is ORDEREDANDADJUDGEDthat Defendant's Motion is hereby DENIED.

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20 Med.L.Rptr. 1127Florida v. Rolling

Florida Circuit Court, Eighth ludicial Circuit, Alachua CountyNo. 91-3832 CFAMarch 10, 1992

STATE OF FLORIDA v. DANNY HAROLD ROLLING a/k/a MICHAEL l.KENNEDY, a/k/a MIKE KENNEDYHeadnotes

Bloomberg Media Law Reporter.ii.1BNASource: Media Law Reporter Cases> Florida> Florida v, Rolling, 20 Med.L.Rptr. 1127 (Fla. Clr. Ct. 1992)

REGULATION OF MEDIA CONTENT(1) Fair trial, free press-Restrictive orders in criminal proceedings-Pre-trial (...8.0501)Florida trial court denies criminal defendant's motion to prohibit public disclosure of anyinformation related to case by counsel, law enforcement officials, or potential witnesses, althoughattorneys are directed to comply with Florida bar rule governing pubuc comments.NEWSGATHERING(2] Accessto records-ludicial-Criminal-pre-trial/ discovery ( ...38.1503.04)Criminal defendant's request for blanket prohibition against public disclosure of all materialsreceived in discovery is denied as overbroad and premature; instead, discovery information will beclosed for 90 days from receipt of information, with either party being permitting to seek in camerainspection and order prohibiting disclosure of specific information until trial or resolution of case.CaseHistory and DispositionProsecution of defendant charged in murders of students at the University of Florida. On defendant'smotion for orders to prohibit disclosure of information and material.Denied in part, granted in part with modifications.AttorneysC. Richard Parker, public defender, Gainesville, Fla., for defendant.Lennard B. Register, Il l, state attorney, Gainesvil le, for the state.George D. Gabel, Jr., and Charles D. Tobin, of Gabel, Taylor & Dees, Jacksonville, Fla., for the FloridaTimes~Unjon.Gregg D. Thomas and David S. Braylow, of Holland & Knight, Tampa, Fla.; Deborah R. Linfield, TheNew York Times cc., New York, N.Y.; and Jerold 1. Budney, The Miami Herald Publishing Co., Miami,Fla., fer The

Page1128GaineSville Sun, The Tampa Tribune, The Miami Herald, Fernandina Beach News Leader, Lake CityReporter, The Ledger, Leesburg Daily Commercial, Ocala Star-Banner, Palatka Daily News, Marco IslandEagle, Sarasota Herald-Tribune, Charlotte AM, and the News-Sun.H. Scott Bates and James R. Lussier, of Mateer, Harbert & Bates, Orlando, Fie., for The OrlandoSentinal and WESH-TV.

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Opinion TextOpinion By:Morris, J.:Full Text of OpinionTHIS CAUSEcame on to be heard upon the Motion of the Defendant to Prohibit Public Disclosure ofInformation and Material. Itseeks to prohibit the public disclosure of any information relating toinvestigation, prosecution or defense of this action by any employee of the Public Defender, StateAttorney, Eighth Judicial Circuit Court, Alachua County Clerk of the Court, any law enforcement agencyinvolved in the investigation and a U potential witnesses. The only exceptions to disclosure would bethose allowed under Rule4.3-6(0) of the Rules Regulating the Florida Bar. The Defendant reasons thecase has been and will continue to be the subject of reports in the public media. He further alleges hewill be precluded from his abil ity to receive a fair trial in Alachua County if disclosure of facts, opinionsand circumstances continue to pervade the community. Finally, his fundamental rights will beprejudiced if material disclosed to him in the discovery process becomes subject to public scrutiny.The State does not object to the entry of such order. However, the State asserted that those whowould besubject to the restriction of the RuleRegulating the Florida Bar do not include all those whomthe Public Defender would place within its scope.The Media (both print and electronic) sought and was granted leave to intervene. Various newspapers,and radio and television stations appeared through counsel. The Media objected to any order of closureon the ground that the Defendant's motion was vague, premature, violated the Public Record laws andfails to meet the appropriate legal test to be applied in such matters (the test of Florida FreedomNewspaper, Inc. vs. McCray, 520 S02nd 32 [14 Med.L.Rptr. 2374] (Fla. 198B). The Media furtherobjected to a n y prohibition of statements as too broad and protested any order entered withoutfindings of fact on necessity and the absence of less restrictive alternatives to outright prohibition.This Court is aware that the Public Defender did not present evidence of the nature and extent of priormedia coverage of this case. However, this Court was presented such evidence prior to the empanelingof the Grand Jury In support of an extraordinary Motion to Voir Dire that jury pool. No jurist with anyexperience in the local criminal justice system can be unaware of the extraordinary nature of this case.No such jurist could be unaware of the intensity of the Media's coverage of this case. The adoption of alocal rule creating a Media Committee to faCilitate the Media's accessto the Courthouse while insuringthe orderly and dignified operation of the daily business of the court system Is a direct product of thiscase. Nocase known to this jurist has ever so captured the attention of the citizens of this Circuit orgenerated the volume of media coverage experienced with these five homicides. The return of theindictments In this case was broadcast l ive by television stations throughout the State. As this caseapproaches trial there is little doubt that media coverage will once again, Intensify.The duty of the Public Defender is to zealously represent his client within the bounds of law and ethics.He has filed this motion as a prophylactic measure to insure his client's right to a fair trial by anunbiased jury in Alachua County. He has stated that he does not wish to move the caseaway fromGainesvil le and is attempting to avoid any problem which could force such a request. The StateAttorney Ismindful of his obligations as an officer of the Court, to insure a fair trial occurs. He alsoseeks to avoid collateral problems that would impede the prosecution or create grounds for appellateintervention or reversal. He had therefore made the decision not to object to the entry of the requestedorder.The Court's obligation is to insure a fair trial Carl occur under the State and Federal Constitutions withdue consideration to the publlc's right to accessto

Page 1129court proceedings. The right to a fair trial is preeminent when it confl icts with that right to accessor theright of free speech and press. Estes v. Tex.as 381 US 532, 85 S.Ct. 1628, 146 L.Ed2nd 543 [1Med.L.Rptr. 1187) (1965). Additionally. that right of fair trial is specific to the county wherein the crimeoccurred. Article I Section 16 Florida Constitution (1968), Miami Herald Publishing Company v. Lewis426S02nd 1 (8 Med.L,Rptr. 2281) (Fla. 1982).This access, which has been described as a "privilege of the press" (Miami Herald Publishing Companyv. Lewis, supra at page 6) is not to be disregarded lightly. Prior court decisions make clear that publicaccess is a judicial policy in support of open government and in recognition of the many benefits that

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flow from the policy.Public access to the courts is an Important part of the criminal justice system,as it promotes free discussion of governmental affairs by Imparting a morecomplete understanding to the public of the judicial system. MU/s v, Alabama,384 U.S. 214,86 S.Ct. 1434, 16 L.Ed2nd 484 (1 Med.L.Rptr. 1334] (1966).Such access gives the assurance that the proceedings were conducted fairly toall concerned. Richmond Newspapers. Aside from any beneficial consequenceswhich flow from having open courts, the people have a right to know whatoccurs in the courts. The Supreme Court of the United States has notedrepeatedly that a trial is a public event. What transpires in the courtroom ispublic property. [Craig v. Harney, 331 U.S. 367, 373-74,67 S.Ct. 1249, 1253-54,91 L.Ed. 1546 [1Med.L.Rptr. 1310] (1947). Public access also serves as acheck on corrupt practices by exposing the judicial process to public scrutiny,Nebraska Press Assn v. Stuart: 427 U.S. 539, 559-560, 96 S.Ct. 2791, 2802-2803, 49 L.Ed.2nd 683 [1 Med.L.Rptr. 1964) (1976), and protects the rights ofthe accused to a fair trial. Richmond Newspapers, .448 U.S. at 564, 100 S.Ct. at2821 [6 Med.L.Rptr. 1833] et seq. Finally, because participating lawyers,witnesses and judges know their conduct will be subject to public scrutiny, it isfair to conclude that they will be more conscientious in the performance of theirroles.

Miami Herald Publishing Company v. LeWis, supra, at page 6 and 7.[1]Accordingly, this Court has grappled with a blanket prohibition against public disclosure and publicstatement. The request of the Public Defender for the latter is satisfied by adherence to Rule 4.3-6 ofthe Rules Regulating the Florida Bar. The attorneys and staff of the Public Defender and State Attorneyare admonished to follow that Rule. The State Attorney is directed to explain these registrations to thelaw enforcement agencies Involved in this matter. Public statement by law enforcement that createsunfair prejudice to the Defendant must be suffered by the prosecutor. At this time, the Court will go nofurther than such admonition. Hopefully, it will not be necessary to revisit this ruling but the Court willnot hesitate to do so if the record demands.[ 2] The request for blanket prohibition of all materials the Public Defender will receive in discovery istoo broad and premature. The controlling precedent is set forth in Florida Freedom Newspaper Inc. v.McCray 520 So2nd 32 [14 Med.L.Rptr. 2374] (Fla. 1988) and Chapter 119, Public Records; FloridaStatutes (1985). Disclosure to the press and public of these materials by virtue of Chapter 119 floridaStatutes is subject to judjdal measures to Insure the right of a fair trial.

'" under the separation of powers doctrine, it is the responsibility of the judicialbranch to ensure that parties receive a fair trial. In the case of a criminaldefendant, the right to a fair trial includes the right to an impartial jury In thecounty where the crime was allegedly committed. The United States SupremeCourt has characterized the right to a fair trial as the most fundamental of allfreedoms and one Whi ch must be preserved at aU costs. Estes v. Texas, 381U.S. 532,85 S.Ct. 1628, 14 L.Ed2nd 543, [1 Med.L.Rptr. 1187) (1965).Moreover,

[t]o safeguard the due process rights of theaccused, a trial judge has an affirmativeconstitutional duty to minimize the effects ofprejudicial pretrial publicity. Sheppard v.Maxwell, [384 U.S. 333, 86 S.Ct. 1507, 16L.Ed.2nd 600 [1 Med.L.Rptr. 1220] (1966)}supra. And because of the Constitution'spervasive concern

Page 1130of these due process rights, a trial judge maysurely take protective measures even when theyare not strictly and inescapably necessary.

Gannett Co. v. DePasquale, 443 U.S. 368, 378,99 S.Ct. 2898, 2904,61L.Ed.2nd 608 [5 Med.L.Rptr. 1337] (1979). Accord Pafm Beach Newspapers,Inc. v. Burk, 504 So.2nd 378, 380 [13 Med.L.Rptr. 2087] (Fla. 1987) ("where a

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defendant's right to a fair trial conflicts with the public's right to access, it is theright of accesswhich must yield"); Bundy v. State, 455 S02nd 338 (Fla. 1984)(a balanCingtest between the right of public accessand a defendant's right to afair trial must be applied soas to recognize the weightier considerations of thedefendant). If,as the press urges, Chapter 119 was read and applied so as toviolate the constitutional separation of powers doctrine or the right to a fairtrial, we should be obliged to declare the statute unconstitutional. Instead, wehold that when correctly interpreted and applied there is no conflict betweenthe statute and the constitutional authority of the judicial branch to take suchmeasures as are necessary to obtain orderly proceedings and a fair trial. FloridaFreedom Newspapers v. McCray,supra, at page 34 and 35.The justification for judicial measures must be based upon a review of evidence and judicial findings.The McCray case, quoted from above, dealt with pre-trial discovery materials being subject to aprotective order deferring or restricting disclosure until trial. There the Court set out the duty of theTrial Court at page 35:

...the material here reached the status of a public record and it is necessary todetermine what standard will apply in determining cause to temporarily sealpublic judicial records. A finding of cause to restrict or defer disclosure of suchrecords cannot rest in air, it must be conclusion reached after consideringrelevant factors. As the present case Illustrates, these factors are essentiallythe same as those set out in the three-pronged Lewis test. This is not surprisingsince both Lewis and the case here address the issue of restricting public accessto what would normally be accessible to the public. Accordingly, we hold thatthe facts set out in Lewis are relevant to a finding of cause and shoutd beconsidered in determining whether public access to a judicial public recordshould be restricted or deferred.

To enter a protective order in the absence of evidence and judicial fact finding is to deprive interestedparties of a right to meaningful appellate review of an abuse of discretion by the Trial Court. This Courtmust consider relevant factors, Including those communicated in Miami Herald Publishing Company v.Lewis,supra, before restricting accessto records otherwise public.The probability is that some restrictions may prove appropriate. For instance, the reports anddepositions of experts may be the subject of motions and hearings on admiSSibility. Challenge may beralsed on issuesof competence, scientific reliability or acceptance, or the specific reliability of testingprocedures or principles. To have conclusions published before such issuesare heard could result inpubliCknowledge of material seemingly inculpatorv later being excluded at a subsequent trial. Thisproblem most often occurs in the context of an accused's statements against interest. Although theCourt can conceive of such issues there is no record yet existing to transform speculation to judicial factfinding and thus, an order of restriction upon disclosure until trial is premature.This Court is not unmindful of the task to be faced. The State Attorney took two full weeks to presentthese cases to the Grand Jury. He has represented it would take at least two full days to make asummary presentation of his potential evidence to the Court. The Alachua County Commission hasmade an extraordinary budget allocation to the PublicDefender to enhance his computer capabilities toreceive and process the discovery material the State will present. Yet, none of these considerationsrelieve the Court of its duty to review evidence and enter findings of fact to justify any restriction ondisclosure.Two methods are apparent to meet this task. One is to allow the in-camera summary presentation bythe State Attorney to the Court of the evidence he intends to disclose. Thereafter, the Court couldmake a determInation of potential harm to the right of fair trial upon pre-trial disclosure. Alternatively,the Court

Page 1131can order the State to proceed with disclosure to the defense, while ordering a temporary prohibitionagainst public disclosure. This would allow the PublicDefender to review materials and file specificrequest for in-camera inspection of materials that he finds might deprive his client of a fair trial uponearly disclosure. The Court prefers the latter method becausethe init ial judgment of harm is made bythe attorney for the Defendant. This is in keeping with the adversarial nature of our system and ameasured approach to this issue. It should be noted that the State Attorney may likewise seekrestriction on dlsdosure when he feels matters otherwise disclosable under Chapter 119.011(3)(c)(5)aand b, Florida Statute, may prejudice the State's right to a fair trial. Both sides must be given a

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reasonable time to review materials and file motions for protective measures.One other matter must be discussed. Al l parties were invited to address the impact, if any, of L ocke v.Hawkes _ So2nd _ [19 Med.L.Rptr. 1522) (Fla. 1991), November 7, 1991. At the time of thishearing, the Supreme Court had agreed to reconsider its opinion. A new opinion was issued february27, 1992. This Court has carefully considered this new opinion and finds the prior judicialpronouncements interpret ing Chapter 119.011(3){c)(S) (1987) continue to be binding on this Court.The Public Defender is not exempted from compHance with Chapter 119 except in accord with priorcase law. Althollgh listed in Article V Section 18 Florida Constitution (1968) his duties are proscribedby the general law. Article [ Section V Florida Constitution (1968) does not list the Public Defender asan entity in which is vested the judicial power of the State. This Court does not hold that there is noInstance In which the Public Defender may partake of the judicial power of Article I Section V, Rather,on the limited issue of the applicability of Chapter 119 Florida Statute, this Court finds that it is withinthe power of the legislature to determine when matters contemplated in pre-trial discovery becomepublic records subject to public access, albeit limited by a Trial Court's power to temporarily prohibitdisclosure to Insure a right of fair trial. ThereforeThe motion is denied as to a prohibition on comment and admonishment given to follow the restrictionof Rule 4.3-6, Rules Regulating the Florida Bar. If the Public Defender files his Notice of Intent toParticipate In Discovery, the State Attorney is directed to file his Answer with the Clerk of the Courtwho shall immediately seal said Answer. An order of temporary Closure to any and all materials shallthereafter be in effect for 90 days from receipt of such discovery by the Public Defender, during whichthe Public Defender or the State Attorney may move for in-camera Inspection by the Court and orderprohibiting disclosure of specific matters until trial or resolution of this matter.

- End of Case -

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IN ras C IRC UIT C OU RT OF TH E N IN TH JU DIC IAL C IRC UITIN AND FOR ORANGE COUNTY , FLORIDASTATE OFFLORJDA , CASE NO.:

DIVISION:2008-CF -15606-010Plaintiff;

vs.CASE Y MARIE AN TH ON Y.

Defendant._______ 1ORDER DENY ING MOTION TO SEAL PENALTY PHASE D IS COVERY

T HIS C AU SE came before this Cour t for hearing on December 20.2010, on theDefendant's Motion to Seal Penalty Phase Discovery filed on December 3, 2010,pursuant to Florida Rule of Criminal Procedure 3.2200). After carefuUy considering theMotions, arguments of counsel, and the law, the Court finds and determines as follows:

Counsel for the defense petitions this Court to enter a protective order pursuant toFlorida Rule of Criminal Procedure 3.2200). sealing or exempting from public accesscertain penalty phase discovery. Specifically, counsel for the defense wishes to precludethe release of th e p en alty phase witness list, which this Court ordered disclosed onNovember 30, 2010. Counsel for the Orlando Sentinel ("Sentinel"), a local dailynewspaper granted standing by the Court, has filed a motion in opposition.

The issue thus presented is whether or not the Court must seal this discovery frompublic access in order to ensure the Defendant's right to a fair trial. For the reasonsdiscussed infra, the Court finds that the requested action is not required.

Rule 3.220( 1) provides that upon a showing of good cause, th e Court may "orderspecified disclosures be restricted, deferred. or exempted from discovery." Fla. R.

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Cr im. P . 3 .220(1) . ( Emp ha si s s u pp lie d) .B efore cou rt or pu blic records m ay proper1y be c losed on fairtrial grou nds, th is

Cou rt m u st s pec ific ally iden tify th e f ac to rs th at th reaten th e a dm in is tratio n o f ju stic e an dw eigh all reasonable alternatives to m itigate th e perc eived th reats . O nly th en. afterdevelopm ent of a full record on th ese is sues , m ay a cou rt narrow ly fash ion a rem edyth at ac com modates th e pu blic 's in terest alongside th at of th e c rim inal ju stice sys tem .

Spec ifically , th is C ou rt m ust apply th e th ree-part tes t referenc ed in FloridaFreedom Newspapers v . McCrary, 520 So. 2d 3 2 (F la. 1988), and establish ed inMiamiH e ra ld P ub lish in g C o . v. Lewis, 426 So. 2d 1 (Fla. 1982). Su ch findings c an on ly bem ade after a carefu l analys is of th e follow ing fac tors :

a. Restric ting pu blic acc ess to discovery m aterial is necessary topreven t a seriou s and im minen t th reat to th e adm in is tration ofjustice; .

b. N o alternatives , oth er th an a ch ange of venu e, w ou ld protec t th edefendan t's righ t to a fair trial; and

c . C losu re w ou ld be effec tive in protec ting th e righ ts of th e ac cu sed,w ith ou t being broader th an neces sary to acc om plish th is pu rpose.Lewis 426 So. 2d at 6; McCrary . .520 So. 2d at 35.Bearing th e preceding princ iples in m ind, th e D efendan t's c laim fails . As a

th resh old m atter, th e C ou rt agrees w ith th e Sentinel th at th e D efense bears th e bu rden ofproof in sealing th is penalty ph ase disc overy. It is w ell-settled th at th e party seekingc losu re h as th e bu rden of proving by th e greater w eigh t of th e evidenc e that closure isnec es sary to preven t a seriou s and im minen t th reat to th e adm in is tration of ju stice. WESHTelevision, Inc. v, Freeman, 6 91 S o.2 d 532, 534 ( Fla. 5 th DCA 1997).

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A lth ou gh th e D efense c 1aim s th at disc losu re of th e w itn ess lis t has a po ten ti al lyc hillin g effec t, th e C ou rt agrees with th e S en tin el th at th is b ald as se rtio n is in su ffic ien t. Af inding of cau se to res tric t or defer d is c losu re of su ch records cannot res t inair. McCrary,5 20 S o. 2d at 35. In order to seal th e en tire pen alty ph ase w itness list, th e D efen dant m us tm ake a m uc h m ore partic ularized s how ing. T he C ou rt agrees w ith the S en tin el th at th ethree-pronged tes t h as not been m et in th e c as e sub judice.

To th e c on trary , m an y p ote ntial p en alty phase witnesses are p re sumab ly a lre ad yknow n to th e public at large and are already assoc iated w ith this c ase. R elease of anyknow n indiv idu al's n am e cou ld not poss ib ly deprive th e D efendan t of h er fair t ri al r igh ts .M o reo ve r, ev en fo r w itn esses not know n, c ou nsel's c on clu sory as sertion th at s om ew itnesses m ay be relu ctan t to c om e forw ard is in su ff ic ie nt to d emons tra te a real th reat toth e D efendan t's fa ir tria l righ ts . A ny pen alty ph ase w itn ess w ill tes tify in an openc ou rtro om an d be pu blic ly iden tified w ith th is c ase. If th e unknow n indiv idu als on th eD efen dan t'S w itn es s J is t are s im p ly relu c tan t to be a ss oc ia te d w i th this c as e, th eD efen dan t h as not s hown h ow th e delayed assoc iation of th ese ind ividu als w ill protec th er fair trial righ ts . B ecau se th e D efense does not satis fy its bu rden . th e M otion to SeaJP enalty P hase D isc overy is D EN IE D.

D O NE A ~R DE RE D in c ham bers at O rlando, O range C ou nty, F lorida, th is1+ h day of - - - r t ' t Y l A l ~ 2011.

BEL YIN PERRY. JR.Chie f Judge

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IN TH E C IRCU IT COURT OF TH E N INTH JU DIC IAL C IRC UIT ,IN AND FOR ORANGE COUN T Y, F LORID A

STATE OF FLORIDA,Plaintiff ,

C ASE N O. 48- 2008-C F-IS606D IV ISION : 99vs .

CASEY MARIE ANTHONY,Defendant .- - - - - - - - - - - - - - - - - - - - - - ~ /ORDERS ADDRESSING MOTION TO SEAL RECORDS RELATED TO THEJUSTICE ADMINISTRATIVE COMMISSION/ RETAINMENT AND PAYMENT OFEXPERTS, INVESTIGATORS, MITIGATION SPECIALIST, AND OTHER COSTS/

RECONSIDERA nON OF DEFENDANT'S REQUEST TO WAIVEAPPEARANCE AT CERTAIN BEARINGSI PROCEDURES FOR FUTURE MOTIONS

T HIS M A TIE R cam e before th e C ou rt for h earing on M ay 6, 2010 to addres s severalis su es an d m otion s in clu din g: T he retain men t an d es tim ated bu dget for paym en t of c erta in feesan d c os ts fo r D efe nd an t b y th e Ju stic e A dm in is tra tiv e C omm is sio n (h ere in after re fe rred to a s"JAC ") a nd th e s ealin g o f re co rds relatin g th ereto ; rec on sid eratio n o f D efe nd an t's re qu es t tow a iv e h er ap pea ra nc e at c ertain h earin gs ; a nd c ertain p ro ce du re s fo r fu tu re m otio ns . B as ed u po nreview of th e M otion s an d h earing argu m en ts of c ou ns el, th e C ou rt m akes th e below fin din gs :I. Defendant's Motion to seal all JAC documents, including but not limited to, all paymentvouchers, finandal disclosures of experts and personal information of experts and costs:

A fte r h earin g a rg um en ts fro m c ou ns el fo r D efe nd an t, th e S tate A tto rn ey 's O ffic e, JAC ,a nd th e O rla nd o S en tin el I,an d c ons ideration of th e applic ab le law , th e C ou rt fin ds th atD efen dan t h as n ot m et h er bu rden to sh ow th at a b lan ket order sealin g th ese rec ords is n ec es saryto p rev en t a s erio us a nd imm in en t th re at to th e fair, im pa rtial, a nd o rde rly admin is tra tio n o f

IThe Orlando Sentinel filed a Motion to Intervene for the Limited Purpose of Opposing Defendant 's Motion to SealAll Justice Administrative Commission Documents. There being no objections. the Court granted the Motion.

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ju stic e in h er cas e. 2 H ow ever, th e C ou rt does rec ogn ize th at th ere m ay be certain rec ord spertain in g to th e paym en t of fees an d c os ts w h ich m ay requ ire an in c am era review to determ in eif such rec ord s sh ou ld be s ealed. A cc ord in gly , D efen dan t's m otion to seal th ese rec ords isDENIED, w ith ou t preju dice to allow D efen dan t's c ou nsel th e opportu nity to request an inc am era review by th e C ou rt on an as n eeded bas is .II. Approval for Retainanent aad Payment of Fees and Costs for Certain Experts, aMitigation Specialist, Investigators, and Other Costs:

A fter h earin g arg um en ts from c ou ns el for D efen dan t, th e S tate A ttorn ey 's Office, andJA C, an d c on sideration of th e applic able law , th e C ou rt orders th e follow in g as to th e retain men tan d pro pos ed b ud get fo r paymen t o f fees an d c os ts for D efen dan t's experts , m itig ation s pec ialis t,and inves t iga to rs :

A. Th e Court finds that the experts, mitigation specialist, and investigators listedbelow are relevaDt and n eces sary to provide Defeadant with adequ at e r ep re s en ta ti on . 3A cc ord in gly , D efen dan t's requ es t for retain m en t of th es e pers on s an d paymen t of th eir.es tim ated fees and fes s is G RA NT ED w ith in th e param eters es tablish ed in th is O rder and

s u bs eq u en t O rd ers , if needed. T hese persons h ave agreed and sh all c om ply w ith th e rates .polic ies an d proc edu res as es tablish ed by JA C an d th e In digen t Servic es C omm ittee. F urth er,w h en ev er p os sib le, d ep os ition s of ou t of s tate experts , th e m itig ation s pec ialis t, an d th ein ves tigators sh all be don e th rou gh th e u se of v id eo c on feren ce equ ipm en t av ailable at th eO ran ge C ou nty C ou rth ou se. C ou nsel s hall c on tac t th e C ou rt A dm in is trator, M att B en efiel toarran ge for th e u se of th e v id eo c on feren ce equ ipm en t.~S ee F lo rid a R ule o f J ud ic ia l A dm in is tra tio n 2 .4 20 (c ) (9 )( A) (i) re qu irin g a s ho w in g th at th e s ea lin g o f re co rd s isn ec es sa ry i n o rd er to p re ve nt a s eri ou s an d i mm in en t th re at to th e f ai r, imp ll rti al , lind o rd e rl y a dm in is tr at io n j us ti c e.A ls o, s ee N ew s-P re ss P ub . C o . I nc . v . S ta te , 345 So. 2d 865 (F la. 2d D CA 1977) w here the C ou rt f ou nd th at th erem ust b e c om pellin g reaso ns b efore s om e o r all of th e rec ord s o f a c ou rt proc eed in g m ay b e sealed, an d su ch reaso nsshou ld be s pe ci fi ca ll y s et f or th by th e s ea lin g a uth ori ty in o rd er th at th e le ga lity th ere of c an b e re vie w ed .J See Ake v. Oklahoma, 470 U .S. 68, 105 S. Ct. 1 08 7 (\9 85 ) a nd Lavender v , Slate, 889 So. 2d 882 (F la. 5 th DCA2004).

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1. For the below persons, caps are included as to the number of hours to beincurred:Dr, Henry L ee - C rim in alis t Expert: A cap of8 hours for in court services and acap of 25 hours for out of court services is approved,Jeanene Barrett- Mitigation Specialis t: A cap of 384 hours for services isapproved,One Investigator (in state): A cap of300 hours for in state services is approved.Out Investigator (out of state): A cap of 100 hours for out of state services isapproved.One K-9 Expert (out of state): A cap of20 hours for services is approved.One Postmortem Hair Banding Expert: A cap of20 hours is approved,

1. For the below persons, caps as to the number of hours to be incurred has notbeen determined to date. Thus, these caps shaH be approved by subsequent order:One Forensic Entomologist (out of state)One Forensic AnthropologistOne Forensic Botanist (out of state)One Out of State Forensic Pathologist (out of state)one Digital Computer Forensic Expert (out of state)One DNA Expert (out of state)One Forensic Chemist (in state)One Forensic Chemist (out of state)

B. The Court finds that the experts listed below are not relevant and necessary toprovide Defendant with adequate representation and therefore Defendant's request for theretainment of the below listed persons and payment of their fees and costs is DENIED asfollows: Jury Consultant: DENIED with prejudice.

One additional DNA Expert: DENIED with prejudice.One additional forensic botanist for consulting only; DENIED with prejudice.One Trace Evidence Expert: DENIED without prejudice to provide Defensecounsel the opportunity to determine whether Dr. Henry Lee can provide the traceevidence services and ifhe n ot ab le to do so, counsel can then request approval from th eC ou rt for an in state DNA expert.

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.._--_----------------

One T ap h on omy E xpert: D E NIE D w ith ou t preju dic e to allow De fe ns e c ou n se lto request 8 Rogers hearing. 4 Also. t h e expe rt may ap pe ar at th e Rogers h earin g v ia v id eoconferencing.O ne C ell Phone E xpert: D EN IE D w ith ou t preju dice to determ ine after th e

S ta te 's c e ll phone expert is deposed as to w h eth er th is expert is n eed ed .C. As to the request for approval of other Defense costs, the Court orders ISfollows:

Costs for P ub lic R ec ord Requests: A c ap of $3,500.00 is GRANTED.T rav el C os ts fo r De fe ns e c ou n se l: DENIED.C osts to C on du ct T es ts as to E viden ce in D efendan t's A utom obile: These costsin clu de m ateria ls an d tw o P on tiac S un bird s au tomo biles , s im ilar to D ef en da nt's a utomo bile :DENIED without prejudice to allow D efen se c ou ns el to requ es t a Rogers hearing.T ran sc ripts of D epos ition s: D efen se c ou ns el s hall c on tin ue to reque s t t rans c ri pt sb y m otion for eac h d epos ition an d s hall in clu de d epon en t's n am e an d date of d epos ition .

III. Reconsideration of Defendant's Request to Waive Appearance at Certain Hearings:D efen dan t's h as requ es ted th at s he b e allow ed to w aiv e appearan ce at c ertain h earin gs

s uch as hearings addressing approval o f c os ts . Defendant's requ es t is D EN IED in part withoutpreju dic e to allow for h er requ es t to be rec ons idered for c ertain h earings on an in dividu al bas isand GRANTED in part to prov id e th at s he will n ot b e requ ired to appear at s tatu s h earin gsu nles s s he chooses to do so.IV . D efense 's W i tn ess L is t:

D efen se C ou nsel sh all su bm it a lis t of all kn ow n w itn esses by Au gu st 31, 2010. T his lis tm ay be su pplem ented at a later date.

4 See Rogers v. Slate, 783 So. 2d 980 (Fla. 2001).

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V. Procedures for Future Motions filed after May 6,2010:Motion s w h ere th e m ovan t prefers a res pon se from th e oppos in g party , e ith er prior to or

in lieu of a h earing , sh all in c lu de th is requ es t in w riting . A lso , a ll m otion s sh all s tate w h eth er orn ot an eviden tiary h earing is requ es ted or s halt s tate th at th e m otion c an be res olved w ith ou t ah earin g th rou gh th e pleadin gs s ubm itted by th e parties . F urth er, c ou rtes y c opies of all m otion sshal l b e p ro vid ed to th e C o urt.

DONE AND ORDERED in c ham bers at O rlan do, O ran ge C ou nty , F lorida, th is ./;2 - 1 - . .. .day of M ay, 2010, nunc pro tu nc to M ay 6, 2010.

B LVIN PERRY, JR.C h ie f J ud ge

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R E C E I V E DIN THE C IRCU IT COURT OF THE NINTH JUD IC IAL C IRCU rT J U N a 8 2~n

IN AND FOR ORANGE COUNTY , FLORIDA Orange C O O !" .. "! j" I + .~. J. :._..: ?CAS E NO .: 48 -2 00 8-C F -15 60 6-0TATE OF FLORJDA,P l a i n t i f f , DIV ISION : 99vs .C ASEY MARIE AN TH ON Y,Defendant._ _ _ _ _ _ _ _ . 1

ORDER DENYING MOTION TO SEAL JAIL VISITATION LOG RECORDSTHIS MA TIER c am e b efore th e C ou rt for h earin g on June 1 , 2 010, on th e Defendant 's

M o tio n to S ea l J ail V is itin g L og R ec ord s, filed on Ap ril 2 9, 2 01 0. A fte r c are fu lly c o ns id erin g th eM o tio ns , a rg um en ts o f c ou ns el, an d th e law , th e C ou rt fin ds an d d eterm in es as fo llo w s:

C o un sel fo r th e d efen se p etitio ns th e C ou rt to e nte r a n O rd er d ire ctin g th e Adm in is tra to ro f th e O ran ge C ou nty Jail to s eal an d m ain tain th e c on fid en tiality o f all rec ord s o f vis ito rs to th eD efendant, C asey M arie Anth ony. Spec ific ally, coun sel m oves th e C ou rt to seal th e "jailvis itation log," w hic h docu ments th e nam es of persons w ho vis it the D efen dan t, an in mateaw aitin g trial o n c rim in al c harges . O f p artic ular c on cern to th e defen se is th e iden tific ation ofe xp ert w i tn es se s w h o will b e m eetin g w ith th e D efen dan t to as sis t in th e p rep aratio n o f h er c as e.C ou ns el for th e D efendan t argu es th at th e m ere iden tity of th ese in div idu als to th e n ew s m edia"will c au se u nfou nded s pec ulation , as w ell as "go og le' in qu iries ," th us s everely h am perin g h erentitlements 10 d ue p ro ces s, e qu al p ro te ctio n o f th e law , a nd effec tiv e as sis tan ce of counse l .

C ou nsel for O range C ou nty , on behalf of O range Coun ty C orrec tions , h as tiled aResponse o pp os in g th e D efen dan t's M otio n bas ed u pon the F lo rid a P u blic R ec ord s Law as wel las Article I, s ec tio n 2 4 o f th e F lo rid a C o ns titu tio n.

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The issu e th u s presen ted is w h eth er or not a trial cou rt m ay righ tfu lly order anadm in is trative agency, in th is case th e county jail, to seal public records th at arc w ith in itse xc lu s iv e p os se ss io n. F o r th e re as on s d is c us se d infra, th e C ou rt fin ds th at it c an n ot.

F irs t. su ch an order w ou ld am ou nt to a vio lation of th e doctrin e of separation of pow ersset forth i n A rti cl e II , section 3 of th e F lorid a C on stitu tion , w h ic h m an dates th at n o bran ch ofg overn men t m ay en croac h u pon th e pow ers of an oth er. Florida D ep t. o f S ta te , D iv. o f E lectio nsv . Mar ti n, 916 So. 2d 763 (F la. 2005); B ush v. S ch ia vo , 885 So. 2d 321 (F la. 2004); S lo ba n v.Florida Bd. of Pharmacy, 982 So. 2d 26 (Fla . I s t D CA 2008). In adherence to th is bas icprinc iple, th e ju dic iary is prec lu ded from in terfering w ith , m uch less u su rping th e propera u th o ri ty o f, th e e xe c ut iv e. Shar ra rd v . S ta te , 998 So. 2d 1188 (F la. 4th D CA 2009). M oreover, atrial c ou rt is forbidden from entering an in ju nc tion th at requ ires an a dm in is tra tiv e a ge nc y toperform its du ties in a partic ular w ay. C ro w le y M u se um and N atu re C en ter. Inc. v. SouthwestF lo rid a W a te r M a na ge m en t D is t., 993 . So. 2d 605 (F la. 2d D CA 2008).

In add itio n, it is w ell-es tablis hed th at a trial cou rt m ay not in terfere w ith and does noth ave th e au th ority to en ter in to th e dec is ion -m akin g p roc es s w h ic h is delegated to an exec utiveagency. D ep ar tm en t o f R even ue ex ret. Ja cks on v. Nesbitt, 975 So. 2d 549 (F la. 4th D CA 2008);A ge nc y fo r P er so ns with D isab ili ti es v . J.M.. 924 So. 2d 1 (F la. 3d DCA 2005), review denied,932 So. 2d 193 (F la. 2006) T h e jail v is itatio n lo g rec ord is an admin is trativ e p ro ced ure utilizedby th e O range C ou nty Jail to ensu re th e safety and sec urity of inm ates , jail em ployees , and th eg en era l p ub lic b y re co rd in g th e id en tity o f v is ito rs to it s f ac ilitie s. T h e a ge nc y h as determined init s d is c re ti on t ha t t he v is it at io n tog is a vital tool in e ff ec ti ng t ho s e me an s .

As su ch , to requ ire a judge to s ec on d g ues s admin is trativ e d ec is io ns w ou ld place th ejudicial branch in a s up erv is ory ro le o ver b as ic ex ec utiv e b ran ch , p ub lic p ro tec tio n fu nc tio ns in

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violation of th e separation of pow ers doc trin e. Strickland v. Departm ent of Agriculture andConsumer Services, 922 So. 2d 1022 (F la. 5th DCA 2006). Th is th e Cou rt m ay not do absen t av io la ti on o f con sti tu ti ona1 or statutory rights. M ia mi-D ad e C ou nty v . M iller, 19 So. 3d 1037 (Fla.3d D CA 2009). W h ile cou nsel for th e defense argu es th at failu re to seal th e jail vis itation logrecords wou ld vio late th e D efendant's en titlem en ts to du e proc ess , equal p ro te ctio n, a nde f fe c ti ve a s si st an c e of counsel , the Cou rt r ema in s unpersuaded.

F irs t, th e D efe nd an t's c laim th at failu re to s eal th e ja il v is itatio n lo g is v io lativ e o f h errigh t to equ al pro tec tion of th e law is w ith ou t m erit "E qu al protec tio n o f th e law s" m ean s th ateach person is en titled to s tand before th e law on equ al term s w ith , to en joy th e sam e righ ts asbelon g to , an d to bear th e sam e b urden s as are im pos ed on , o th ers in a s im ilar s itu ation .M c D an ie l v . B oa rd o f P ub lic In str uc tio n fo r Escambia County, Fla., 39 F. Supp. 638 (N.D. Fla.1941)~ Caldwell v. Mann. 157 F la. 633 , 26 So. 2d 788 (1946); Riley v. Lawson , 106 F la. 52 1, 1 43So. 61 9 (1 93 2). A ll s imilarly s itua ted pers on s are equ al u nder th e law an d m ust b e treated alike;th e righ ts of all person s or c lasses m ust res t on th e sam e ru le u nder s imilar c ircumstances .(Emphasis supplied). Ocala Breeders' Sales Co., inc. v. Florida Gaming Centers. Inc., 793 So.2d 899 (Fla. 2001).

T hu s. eq ual pro te ctio n is n ot v io lated m erely b ec au se s om e p ers on s are treated d iff eren tlyth an o th er p ers on s; it o nl y re qu ire s th at p ers on s s im ila rly s itu ate d b e tre ate d s im ila rly . a nd i td em an ds o nly re as on ab le c on fo rm ity in d ea lin g w ith pers on s s im ilarly s itu ate d. Duncan v.Moore, 754 So. 2d 708 (Fla. 2000); F re dm an v . Fredman, 960 So. 2d 52 (Fla . 2d DCA 2007).review denied, 968 So. 2d 556 (Fla. 2007) and cerrodenied, 128 S. Ct. 1481, 170 L. Ed. 2d 297(U.S. 2008).

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Th e jail visitation log records th e identi fication of every person that visits an inmate inth e O range C ou nty Jail. C on sequ en tly. th e D efendan t's con ten tion th at sh e is being treatedd is pa ra te ly f rom s im ila rl y s itu ate d pers on s, i. e. , other inmates. is simply unfounded .

E qually implau s ible is th e argument th at if th e jail v is itation log isn 't sealed. th eDefendan t will not receive effec tive assis tance of counsel. E ven if th e C ou rt w as vested withsu ch au thority , it is not convinced th at th e d isc losu re of th e jail logs w ou ld give th e prosecut iona ny ta cti ca l a dv an ta ge . The disc losu re of jail v is itors ' n am es does not h old th e poten tial to revealp ri vi le ge d c ommun ic a ti on s . In fac t, th e D efendan t u ltim ately w ill be requ ired 10 dis clos e to th eprosecu tion th e nam es of all tes tifying experts , along w ith any oth er reports or statem ents ofexperts m ade in connec tion w ith th e c ase, F la. R . C rim . P . 3 .220(d)(1)(A ) and (9)(ii).Fu rth ennore, any "un founded specu lation " on th e part of th e new s m edia is beyond th e ambit ofth e C o urt.

Las tly , c ounsel for th e defense c laim s th at failu re to seal th e jail log w ou ld resu lt inimpingement to th e D efendan t's en titlem ent to du e proc ess of law , A lth ough th e D efendan t'sM otion con tains very general allegations conc ern ing th e natu re of th is alleged due processvio lation , it fails to c ite any au thority that stands for th e proposition th at jail inm ates have afu ndam ental righ t to seal vis itation log records. IPerh aps most telling, th e M otion is bereft of anyc itation to legal au th ority at all. W h ile it is (ru e th at du ring th e h earing on th e Motion counsel didoffer one c ase to su pport its pos ition , it i s e as il y d is ti ng u is h ab le .

In Powell v. Foxman, 528 So , 2d 91 (Fla. 5t h DCA 1988), the d efen dan t so ugh t a w r i t ofm andamu s to compel th e State to produ c e recorded testimony of th e m inor vic tim du ring adependency h earing (Em ph as is su pplied). Th e D istric t C ou rt of Appeal. in gran ting th e writ, heldth at th e defendan t w as en titled to th e prior recorded tes tim ony based on th e C onfron tation C lau se, The issues presented in this case do not broach procedural due process matters.

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of th e S ix th Amen dm en t of th e U n ite s Sta tes Const itu ti on an d Article I, section 16, of th e floridaCons ti tu ti on . C l ea rl y, Foxman is n ot a na lo go u s to th e in stan t c as e.

Firs t , th e jail log does not cons titu te any form of "tes tim onial evidence" w hich entitlesth e D efen dan t a righ t to c onfront and c ros s-exam ine it. See Crawford v. Washington, 541 U .S. 36(2004). Fu rthermore, th e defendan t in Foxman sough t to h ave records produced rath er th anc on cealed , as in th e c ase sub judice. Finally, and perhaps m os t germane to th e disposit ion o f th isc la im, Foxman involved cou rt records . It did not pertain to pu blic records th at w ere in th eexc lu sive possess ion of a c o-equ al. bran ch of governm ent.

T o th e c on trary , th e F lorida Supreme Cou rt has express ly h eld th at th e ju dic iary on ly hilsexclu s ive pow er and responsib ility over cou rt records , and it h as fu rth er acknow ledged th edis tinc tion betw een cou rt records and records th at are not in th e exclu s ive posses s ion of thecourts . Johnson v, State, 336 So. 2d 93 (F la. 1976); Slate v, D,H. W, 686 So. 2d 1331). Indeed,th e cou rt explic itly ru led that under th e separation of pow ers doc trine, a cou rt's pow er to orderth e sealing of non judic ial crim inal h is tory records not in th e cu stody of th e cou rts derives only

from a legis lative gran t by s tatu te. D,H. W . 6B6 at t 334.Additionally, as cou nsel for O range Coun ty aptly poin ts ou t, th e O range C ounty Jail is an

agency su bjec t to th e F lorida Public Records Law . T h is s tatu te, along w ith Artic le I. sec tion 24of th e F lorida Constitu tion , mandates th at all public records of coun ty agencies are open forinspec tion and copying by any person. 1 19.01, an d 1 19 .011 (1), F la . S tat, (2010).

A "public record" is defined as "all docum ents , papers , letters , m aps , books , tapes ,photograph s, film s, sou nd recordings , data proces s ing softw are, or oth er m aterial, regard less ofth e p hy si ca l f or , c h ara cte ri sti c Or means of tran sm iss ion , m ade or received pu rsu an t to law or

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. .

ordinance or in connection with the transaction of official business by any agency." 119.011(11), F la . S ta t. (2010).

Clearly, th e jai I log constitutes a pu blic record that is s ubject to the statute. As such.Orange County Corrections Department is required to permit inspection of the log upon requestby any person, unless it falls into one of the statutory exemptions listed in Section 119.071,Florida Statutes (2010), or is exempt pursuant to any other law.

The Court agrees with the County that a criminal defendant's desire to "maintain theconfidentiality of visitors" in a high profile case does not qualify as a lawful exemption. Asmentioned supra, the Defendant's Motion does not provide any statutory exemption or legalauthority for the Court to "seal" documents that constitute public records.

Instead, counsel for the defense entreats the Court to judicially create an exemption inthis case. The Court is unable to acquiesce. AIly exemption from the Florida Public Records Actmust originate in the legislature and not by judicial decision. W a it v . F lo rid a P ow er & L igh t C o .,372 So. 2d 420 (Fla. 1979).

Accordingly. the Defendant's Motion to Seal Jail Visitation Log Records is DENIED. f~DONE AND ORDERED in chambers at Orlando, Orange-County, Florida. this ?:@ayof ~U 2010. B LVIN PERRY , JR . l

Chief Judge I(