Media fights judge order, citing First Amendment
High in a tower at the Maricopa County Superior Court complex in downtown Phoenix, prosecutor Jeannette Gallagher was fighting to put John Allen on death row for killing a 10year-old girl by locking her in a plastic footlocker overnight.
Meanwhile, in another courtroom in another Superior Court tower, Gallagher was the victim in the trial of a man who had stalked her repeatedly after she put him in prison in 2008.
When Gallagher’s involvement in the two cases intersected, a court order was issued that appears unprecedented in Maricopa County.
In a hearing Nov. 6, Superior Court Judge Erin Otis weighed a request from The Arizona Republic for a still
camera to be allowed into the Allen trial. Otis approved the camera but ordered The Republic not to show the lead prosecutor, Gallagher. Then she went further: No one would be allowed to use Gallagher’s name — not on the newspaper’s website or in its print edition, not on TV news, not in any media coverage.
Gallagher’s name already had been published in news reports in the early stages of Allen’s trial and throughout court proceedings for his wife and other relatives tried for related crimes.
As she issued her order from the bench that day, Otis said she was protecting the integrity of the stalking case that was not playing out in her courtroom. She did not mention whether anyone had asked her to do so, or why.
The attorney representing The Republic in the hearing to request camera access argued against the order in court. Now, The Republic and other media companies are challenging it, accusing the judge of violating the U.S. and Arizona constitutions on First Amendment grounds.
At issue was the legal concept of “prior restraint,” which is a pre-publication censorship of the media.
The media companies contended that Otis was blocking them from reporting facts — in a death-penalty case, no less — that any member of the public easily could discover by walking into the courtroom during trial, or going on the internet and reading the court record, or viewing past news stories about Allen and the 10-year-old victim.
In essence, the media companies asked, if a judge could bar them from publishing something as fundamental as the name of the prosecutor in a death-penalty case, what other parts of a public court proceeding could be kept secret, too?
The Republic — joined by the Associated Press, 12 News and Channels 3 and 5 — filed what is known as a special action with the Arizona Court of Appeals, seeking a higher court’s ruling that such prior restraint violates the public’s right to know.
Otis and Gallagher filed responses saying the issue was moot because the cases were decided shortly after Otis’ order was made, and the bar on using Gallagher’s name was lifted.
On Tuesday, both sides appeared before a threejudge panel of the Arizona Court of Appeals. Their arguments over a few sentences spoken from the bench Nov. 6 could affect courtroom news reports for decades to come. The judge’s ban
The Allen trial was in its last day of testimony Nov. 6 when attorney David Bodney, who represents The Republic and other media outlets, attended a morning hearing about The Republic’s camera request.
Otis had found The Republic’s initial request a week earlier to be “untimely,” because it had not been submitted early enough, but had set a hearing for seven days later.
Even earlier, a TV station initially had submitted a request to video-record the trial but did not send a representative to its camera-request hearing. Otis had declared that request abandoned.
For decades, camera requests had frequently been made and granted on short notice at Maricopa County Superior Court trials. But recently, perhaps in the wake of high-profile cases that went viral in the media, judges have begun enforcing a rule that requires applying seven days “before the trial date.”
Otis, when she made the order, said that she did not want the jury in the stalking trial to know that Gallagher was in the middle of a capital-murder trial.
Bodney told Otis that her order placed an unconstitutional prior restraint on the media. He pointed out that Arizona court rules state that victims and witnesses can be protected from being photographed or video-recorded in certain circumstances, but there is no mention that prosecutors should be shielded from view, as they are the representatives of the government.
Bodney also pointed out that this was no ordinary case, but a death-penalty murder case, one of the highest seriousness.
Otis responded that the media could freely use the name of the second-chair prosecutor in the case, and the media would be able to use the lead prosecutor’s name again when her other case had come to a close.
Bodney suggested to Otis that there were less-limiting means to protect the integrity of the stalking trial, such as ordering jurors not to follow media coverage.
As Bodney would later describe to the appeals
“Where does that end if the court does not send a message?” David Bodney Attorney for The Republic and other media outlets
court, there were no judicial findings, no explanation of why Otis was intervening in another trial, no arguments — just an order.
In his pleadings to the appeals court, Bodney quoted Otis’ response as “I just don’t want her name in print or her image on the news until that trial comes to completion.”
Otis’ final word in the trial court: “That’s my order, and I need to get going.”
A hard-driving prosecutor
Jeannette Gallagher has been a prosecutor in the Maricopa County Attorney’s Office since 2000, the year she came up from Pima County. She has prosecuted accused child abusers, a notorious prison hostage-taker and countless murderers.
She is a strong supporter of the death penalty, and under County Attorney Bill Montgomery, she is the bureau chief of the office’s capital-litigation section. In effect, she is in charge of the office’s death-penalty prosecutions.
A former social worker, she has told The Republic that she remembers the name of every victim in every case she ever prosecuted.
Gallagher is known for her hard-driving style. She is famous for being combative, so much so that she has ardent fans, many of them former jury members, who come to her trials to watch her in action.
Otis, the judge in the Allen case, was a sex-crimes prosecutor at the Maricopa County Attorney’s Office from 2003, the year after she graduated from law school, until 2012, when she was appointed to the bench. She and Gallagher worked at the office at the same time, although not in the same bureaus.
It is not unusual for a former prosecutor to become a judge. Of the 94 judges at Maricopa County Superior Court, 51 — more than half — were prosecutors, and 32 came from the Maricopa County Attorney’s Office. By
contrast, only seven judges on the Maricopa County bench specialized as public defenders.
And it was not unusual that Gallagher would lead the prosecution of John Allen.
Allen was accused of murdering his wife’s cousin, 10-year-old Ame Deal, in July 2011. He had locked the girl in a plastic footlocker as punishment and left her there overnight.
Allen’s wife, Sammantha Allen, already had been sentenced to death for the same murder, and three other relatives have been sentenced to prison for crimes related to the girl’s death.
Gallagher had tried the Sammantha Allen case as well, and her name had been printed in numerous stories about that trial and her husband’s.
On Nov. 8, two days after Otis barred the media from identifying the prosecutor, Allen was found guilty. Eight days later, the jury sentenced him to death.
A stalking case
In her earlier order issued from the bench, Otis told the attorneys and the media that she was barring use of Gallagher’s name in the John Allen case because of an order in another case, presumably the stalking case.
The Republic has not been able to locate that specific order. During Tuesday’s Court of Appeals hearing, the attorney for the state did not know what kinds of instructions had been given to the jury in the other case.
Otis said she did not want the jury in the other case to be influenced by Gallagher’s appearance in the Allen case. That jury, as with juries in all cases, presumably would have been under admonishment from the court not to read, watch or research any news coverage or social-media discussion of the case.
Gallagher was personally represented in that trial by two attorneys who specialize in victims’ rights. To demonstrate her vulnerability, prosecutors had filed on her behalf a motion to bring a “facility” dog into court to accompany her during her testimony. It was essentially a service dog that would sit with Gallagher to calm and reassure her.
“The witness is anxious about testifying in front of a group of people,” said an appendix to the motion. “The service dog met the witness this past Friday in preparation for the trial. Think of the dog like an interpreter, an aid to get the witness’ testimony across to you more clearly.”
The defendant was Albert Karl Heitzmann, 69, a tall, slender man with glasses, unruly white hair and an apparent dislike for Gallagher that dates back to 2007.
According to court records, Heitzmann was a substitute math teacher at the Adobe Mountain School, a reform school and juvenile prison run by the Arizona Department of Juvenile Corrections.
While there, he became acquainted with an inmate named Brian Womble, and when Womble was released from Adobe Mountain, Heitzmann let him live in his home. In 2002, Womble asked Heitzmann to store two handguns in his safe-deposit box, and Heitzmann agreed to do so.
Womble later used those guns to murder a man, and when he went to trial, Gallagher was the prosecutor.
She called Heitzmann as a witness. After she had obtained death sentences for Womble and his accomplice, she charged Heitzmann with misconduct with weapons, perjury and tampering with a witness.
Heitzmann went to prison for 21⁄2 years. He got out in May 2010. Two years later, he sent a letter to an attorney, saying he had a plan to assassinate Gallagher.
Heitzmann was sent back to prison for another four years for intimidation and another weapons charge. He was released in September 2015.
According to statements made by prosecutors in court Nov. 9, Heitzmann already had filed a notice of claim against Gallagher.
And then, the next year, in September 2016, he showed up twice in courtrooms where Gallagher was appearing at hearings, though he was forbidden to have contact with her.
He was charged with two counts of stalking and one count of misconduct with weapons. According to court filings, he could spend up to 15 years in prison on each of the counts.
On Nov. 7, a Maricopa County Superior Court jury found him guilty on both stalking charges. The next day, the jurors found aggravating factors that would allow the judge to impose a stiff sentence.
The weapons charge was severed from his trial because the gun in question had nothing to do with the stalking. It was to go to trial before a new jury later in December.
Arguments before the appeals court
There was no official court document lifting the ban on using Gallagher’s name or image in coverage of Allen’s murder trial. Instead, the week after Allen was convicted, a Superior Court public information officer sent an email to Bodney saying his clients were “free to use the prosecutor’s name.”
The media companies’ special action on Otis’ order in the Allen case was filed after both Allen and Heitzmann had been convicted.
At Tuesday’s hearing in appeals court, Bodney called Otis’ decision to protect jurors in the stalking case “speculation upon guesswork upon conjecture.”
Were the judges coordinating with each other? he asked. “Was it to get convictions for Ms. Gallagher in both cases?” he asked.
He emphasized the lack of judicial findings. Generally, a judge would be expected to explain her reasoning and weigh the respective constitutional rights of the defendant, the victims and the media.
Gerald Grant, a deputy Maricopa County attorney who represented the court and the prosecution, said the request for Otis’ order did not come from his office.
Grant also argued there was no need for Otis to issue a formal order indicating she had lifted the media ban because she said at the outset that it would expire as soon as there was a verdict in the case in which Gallagher was the victim.
Asked by the appellate panel what he wanted from the court, Bodney said he wanted a ruling to prevent the same kind of order from happening in the future.
“Where does that end if the court does not send a message?” he asked.
Grant’s answer was that the circumstances were unique, “incapable of repetition, and there’s no need for the court to get involved in it.”
The court took the matter under advisement. The panel gave no indication when it would issue its decision.