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TV station challenging ban on airing court audio

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A case currently before the Indiana Court of Appeals could have a precedential effect on the process judges must go through before prohibiting the broadcasting of court recordings, as a northern Indiana TV station argues for answers as to why it was banned from airing a court-provided recording of a sentencing hearing in a high-profile case.

Fort Wayne TV station WPTA filed a brief late last month in the case of WPTA-TV v. State of Indiana v. John C. Mathew, 35A02-1705-CR-01060, urging the appellate court to vacate an order from Huntington Circuit Judge Thomas Hakes that prevented the station from broadcasting the audio recording of a sentencing hearing made by the trial court. The hearing was for John C. Mathew, a prominent physician who pleaded guilty to two counts of felony sexual battery against a former employee.

Hakes sentenced Mathew to four years in the Indiana Department of Correction, suspended subject to probation with the first two years on electronic monitoring/home detention as a condition of probation. He also must register as a sex offender. That sentence generated heavy community interest and sparked protests from some residents who were concerned with Mathew’s lack of jail time, said Jonathan Shelley, WPTA news director.

When WPTA learned the court had made a recording of the three-hour sentencing hearing, it filed a request pursuant to the Access to Public Records Act, hoping to air portions of the various testimonies presented during the hearing in its newscast, Shelley said. Hakes released the recording pursuant to the request, but simultaneously handed down an order, sua sponte, prohibiting the station from broadcasting it, subject to contempt of court.

The station filed a motion to reconsider, but Hakes denied it, pointing to Judicial Conduct Rule 2.17, which prohibits cameras in the courtroom. While Administrative Rule 9(D) required the court to provide a copy of the audio record, Hakes wrote Judicial Conduct Rule 2.17 required him to prohibit broadcasting.

“The limit placed upon Intervenors is in compliance with this rule,” Hakes wrote in an Order on Motion to Reconsider dated May 17. “Broadcasting all or parts of a court record is no different than the Intervenors making their own recording and then broadcasting it … an act that is not allowed by the Rule.”

Christensen Christensen

But Meg Christensen and Jessica Whelan, Bingham Greenebaum Doll LLP attorneys representing WPTA in the appeal, said Rule 2.17 applies to cameras actually used in the courtroom. Here, WPTA was seeking to broadcast an audio recording that was both made and provided by the court, which calls into question the applicability of the rule in this situation, the attorneys said.

whelan-jessica-mug Whelan

Further, the recording is considered a public record under Administrative Rule 9, which requires the court to hold a public hearing before restricting access. Such a hearing was not held, so the order also should be vacated on those grounds, Christensen and Whelan said.

WPTA has received support for its case from various media organizations, including the Society of Professional Journalists, the Indiana Broadcasters Association, the Reporters Committee for Freedom of the Press, and the Radio Television Digital News Association, Shelley said. RTDNA has taken a particular interest in the case as part of its newly formed Voice of the First Amendment Task Force, said Dan Shelley, the incoming RTDNA executive director, who is not related to Jonathan Shelley.

RTDNA’s task force has a two-fold mission — to defend against attacks on the First Amendment and to help the public understand why responsible journalism is essential in their daily lives. WPTA’s case fell into the purview of the task force because the organization advocates for camera access in all courtrooms, regardless of their size or stature in the legal community, Dan Shelley said.

Indiana’s rules regarding cameras in courtrooms tend to be more restrictive than the rules in other states, he said, and in WPTA’s situation, the execution of a prior restraint on a preexisting, court-generated recording seems to be a clear violation of First Amendment rights.

“From what I’ve seen, there’s no conceivable reason for the judge to prohibit the broadcast of that tape,” he said. “The case is over, so what possible harm could there be?”

The fact that Mathew’s case had already concluded when WPTA requested the recording is a central part of the station’s argument and the support it has received from the media community.

In cases where courts have imposed a gag order, it has been issued as a way of ensuring pretrial publicity did not deprive the defendant of a fair trial, Christensen and Whelan said. But here, the case was complete, so there was no risk of publicity having an adverse effect on Mathew’s rights, the attorneys said.

key-steve-mug Key

However, Steve Key, executive director and general counsel with the Hoosier State Press Association, said WPTA may be fighting an uphill battle. From his perspective, the appellate court might not view the issue as a prior restraint, but rather as an enforcement of Rule 2.17. Further, it’s possible the Court of Appeals might think the trial court erred by releasing the tape in the first place, so the judges could view the purported prior restraint as a correction of that error, he said.

Key went on to say he understands the station’s argument as to the fact that Mathew’s case had already concluded when the public records request was made, yet he also noted that courts have raised concerns about how the knowledge of the presence of cameras might affect witnesses. Courts often make recordings of their proceedings for the record and for the benefit of court reporters, but if witnesses know those recordings could be released to the media — and, thus, the public — then they might alter their words or actions, Key said.

“Whether live or delayed, that danger may still exist in the court’s mind,” he said.

Key said HSPA was asked to join WPTA’s case as an amicus, but declined to do so. While the organization would like to see the state change its policies regarding cameras in the courtroom, Key said he’s not sure if WPTA’s legal challenge is the most effective way to bring about that change.

Jonathan Shelley, however, said the station hopes its case will set precedent in Indiana, as he thinks the court owes the station an explanation as to why it could not broadcast the recording. The station’s attorneys agreed, noting the case seemed to be an issue of first impression in Indiana courts that could provide further guidance on how Rule 2.17 should be applied.

A spokesman for the Indiana Attorney General’s Office, which will be tasked with representing the trial court before the Court of Appeals, said the office is reviewing WPTA’s appeal to determine how to respond. The deadline for the state to file a brief is July 20, and the station will have until Aug. 4 to file a reply.•

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

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  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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