Challenge made to judge’s ruling
State judiciary proposes rule to curtail public access to court audio
Less than a month after a federal judge found Maryland’s ban on broadcasting legally obtained recordings of court proceedings unconstitutional, the state judiciary is considering a rule that would prevent the public from obtaining audio recordings of criminal court cases altogether.
On Dec. 9 U.S. District Judge Richard D. Bennett struck down Maryland’s so-called “broadcast ban,” which prohibited the dissemination of audio recordings obtained legally through the courts, determining that the law violated the First Amendment. His ruling came more than three years after a group of journalists and activists sued the state.
Five days later the Supreme Court of Maryland’s Standing Committee on Rules of Practice and Procedure submitted a report to the high court on an emergency basis, citing the federal court’s ruling, recommending a rule change that critics say would effectively circumvent Bennett’s decision in the case of Soderberg v. Carrion. (Brandon Soderberg is a journalist; Judge Audrey Carrion is the chief judge of Baltimore Circuit Court.)
The proposed rule would end the practice of courts providing, upon request and payment, CDs or digital files containing recordings of criminal court proceedings in Maryland. Instead, people who want to listen to a criminal trial or hearing after it happens would only be allowed to do so at a courthouse and under the supervision of a judiciary staffer, where they would be barred from making a copy of the recording.
Dozens of organizations — from legal groups to press freedom entities, local and national news organizations to government transparency advocates — are opposing the change. The opponents
describe the proposal as an assault on the First Amendment and the long-standing legal presumption of open courts and say that the state is defying the federal court’s December ruling.
“The Supreme Court is using the decision in the Soderberg case as its purported justification to pass on an ‘emergency basis,’ during the holidays, a new rule that would be even more restrictive than the broadcast ban that was defeated,” said Seth Wayne, senior counsel at Georgetown University Law Center’s Institute for Advocacy and Protection, one of the legal groups that brought the federal lawsuit.
“This new restriction that they’re trying to put through,” Wayne told The Baltimore Sun, “would mean no person, be it press, be it advocate, be it grassroots organizer, be it interested community member, can obtain a copy of a recording that is the official recording of what happened in court . ... This would be an extreme limitation on the public’s ability to know what’s going on in their public criminal courtrooms.”
The Supreme Court of Maryland is considering the proposed rule change during a video meeting at 2:30 p.m. on Friday. A spokesman for the judiciary declined to comment, citing the lawsuit, as the state can technically still appeal.
During the high court’s rules meetings retired state appellate judge Alan Wilner, chair of the rules committee, typically presents his committee’s report on proposed rule changes before the court takes testimony from people who signed up to speak. The justices can ask questions of Wilner or subsequent speakers and rule immediately after the hearing or reserve a decision for a later date.
Wayne was part of a coalition of groups, including the American Civil Liberties Union of Maryland, the Innocence Project, the Yale Law School’s Media Freedom & Information Access Clinic and the Reporters Committee for Freedom of the Press, that submitted written opposition to the rule change.
“The adoption of the proposed Amendments would cause harm to the people of Maryland, with no corresponding benefit’“the coalition’s letter said. “It would put state courts in breach of bedrock constitutional rights and would be a major step backward for the public’s right of access to the courts.”
A Washington, D.C., law firm submitted a letter in opposition on behalf of 18 news organizations, including The Sun and other local outlets, as well as some of the nation’s largest newspapers and broadcasters, such as The New York Times and ABC News.
That letter cited an opinion from the federal court prohibiting Maryland from enforcing its broadcast ban against National Public Radio and allowing the organization to publish a podcast featuring audio from the Capital Gazette mass shooting trial and sentencing.
The Maryland Criminal Defense Attorneys’ Association also opposes the rule change, citing concerns from lawyers who either practice alone or work for small law firms that the rule change, as drafted, would be overly burdensome for them.
The proposed rule prohibiting the release of audio recordings carves out exceptions for certain judges, attorneys and people involved in the criminal case at issue. However, defense lawyers regularly listen to recordings of cases other than their clients’ in order to prepare their defense.
The letter cited a common scenario where a defense attorney would listen to the previous testimony of a witness also slated to testify against their client. The exceptions outlined in the proposed rule would not apply to attorneys in such situations.
“Ordering the audio recording of a proceeding is a faster and more cost-effective way for attorneys to investigate and determine if ordering the transcript is necessary,” wrote Erica Suter, president of the defense attorneys’ association. “Requiring an attorney to come to the courthouse during business hours to listen to a recording is simply not feasible for many of our members, who carry busy caseloads during the day.”
Suter is a public defender. A spokeswoman for the Office of the Public Defender, which represents people accused of crimes across the state who can’t afford a lawyer, declined to comment.
Peter O’Neill, a veteran defense attorney based in Anne Arundel County, said the proposed rule also could burden criminal defendants. Prospective clients regularly ask O’Neill to represent them at post-conviction hearings, citing what the judge told them at sentencing.
O’Neill said he listens to the recording of the hearing to ensure “there’s a substantial likelihood of success” before agreeing to represent — and charge — the client. He told The Sun the proposed rule, which only allows attorneys officially in the case to obtain the audio, would put “the defendant or the family in a position where they have to pay to retain counsel in a situation where a lot of us would do it gratuitously before” officially taking the case.
Defending against the federal lawsuit challenging the broadcast ban, Maryland contended the ban was necessary to protect against witness intimidation and defend the integrity of criminal proceedings.
In his ruling Bennett, the federal judge, said that argument was compelling but that the state wasn’t achieving its goal by banning the dissemination of all recordings of criminal proceedings.
He wrote that judges already have the authority to shield sensitive information.
The ban “does precious little to protect witnesses against intimidation, harassment, and violence, as it does not prevent the widespread publication of their names, their images, and the verbatim content of their testimony,” Bennett wrote.
Baltimore County State’s Attorney Scott Shellenberger, who represents Maryland’s elected prosecutors on the judiciary rules committee, said the committee adequately balanced the public’s right to access court proceedings with concerns over protecting witnesses.
“Every day, my prosecutors are begging, cajoling and requesting that witnesses and victims come to court,” Shellenberger told the Sun. “We understand that’s a big deal.
“People may be scared. They may be too busy. … If people knew that their coming to court could result in their being played on the six o’clock news, or wherever, I think it would be even harder to get people to come to court.
“There’s a big difference between someone putting on Facebook ‘I saw Scott Shellenberger testify in a murder case’ and being able to press play.”
Several Maryland lawmakers, who’ve in the past pushed for increased transparency in the courts, will be paying attention the state Supreme Court meeting Friday.
Del. David Moon, a Montgomery County Democrat, said he anticipates legislation to protect transparency in the courts, though he’s not sure yet whether he’ll be the one to introduce it.
“We’re just talking about parts of court proceedings the public is already allowed to attend,” Moon told the Sun. “In various circumstances, we’re seeing courts in Maryland trying to curtail public access.”
Wayne said he and other attorneys involved in the broadcast ban lawsuit view the proposed rule as unconstitutional. If it passes, he said, they may file another complaint.
The coalition Wayne represented quoted from a federal appeals court case in its opposition: “[It] would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?”
“The adoption of the proposed Amendments would cause harm to the people of Maryland, with no corresponding benefit. It would put state courts in breach of bedrock constitutional rights and would be a major step backward for the public’s right of access to the courts.”
— A letter from a coaltion of groups that submitted written opposition to the rule change