PHOENIX NEWSPAPERS, INC.; MEREDITH CORPORATION dba KPHO-TV, and KTVK-3TV; KPNX-TV CHANNEL 12, A DIVISION OF MULTIMEDIA HOLDINGS CORPORATION; and THE ASSOCIATEDPRESS, Petitioners,
v.
THE HONORABLE ERIN OTIS, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA and JOHN MICHAEL ALLEN, Real Parties in Interest.
Petition
for Special Action from the Superior Court in Maricopa County
No. CR2011-138856-001 DT The Honorable Erin Otis, Judge
Ballard Spahr LLP, Phoenix By David J. Bodney, Craig C.
Hoffman, Chase A. Bales Counsel for Petitioners
Maricopa County Attorney's Office, Phoenix By Gerald R.
Grant Counsel for Real Party in Interest State of Arizona
Presiding Judge Lawrence F. Winthrop delivered the opinion of
the Court, in which Judge Diane M. Johnsen and Judge Maria
Elena Cruz joined.
OPINION
WINTHROP, Presiding Judge:
¶1
Phoenix Newspapers, et al. ("Petitioners") are a
group of news agencies covering the prosecution of John
Michael Allen, a high-profile murder case in which the State
is seeking the death penalty. In this special action,
Petitioners challenge the superior court's order
temporarily precluding Petitioners from disseminating the
name or likeness of the lead prosecutor.[1] Petitioners argue
the order is an impermissible prior restraint. For the
following reasons, we agree and accept jurisdiction, granting
the limited relief ultimately sought by Petitioners.
FACTS
AND PROCEDURAL HISTORY
¶2
The Allen murder trial began on October 9,
2017.[2] During a recess in the trial on October
25, the prosecutor, Jeannette Gallagher, testified as an
alleged victim of stalking in the separate and unrelated
trial of Albert Karl Heitzmann. [3]
¶3
On October 30, the first day evidence was to be taken in the
Allen trial, the Arizona Republic submitted a request to use
a still camera in court during the trial, but both the
prosecutor and defense counsel again objected. The
prosecutor, Gallagher, referenced the stalking trial, asking
the court to ensure the media "not cover this until [the
Heitzmann] trial is over because I certainly don't want
to see it affect that jury and have me as a victim have to go
through that trial again." The court denied the
newspaper's request as untimely, noting that any request
to use a camera in court must by rule be made seven calendar
days before the trial date. See Ariz. R. Sup. Ct.
122(c)(2)(A). The court, however, went on to rule that the
newspaper could use a still camera in the courtroom beginning
seven days from the date of the filing of the request,
meaning November 6. In making its ruling, the court did not
reference Gallagher's request.
¶4
On the morning of November 6 - which turned out to be the
last day evidence was presented in the guilt phase of the
Allen trial-the court again addressed the newspaper's
still camera request. After noting that both the prosecution
and defense had objected to media coverage of the trial, the
court ruled that it would allow the still camera in the
courtroom. However, after further noting Gallagher was an
alleged victim in the Heitzmann trial, which by then had
proceeded to the jury deliberations stage, the court, perhaps
in furtherance of Gallagher's previous request,
temporarily barred the media from disseminating her name and
likeness:
[A]t least until further notice, I need the media and I'm
ordering that the media not to be able to film Ms. Gallagher
or indicate her name in the -- any coverage, whether it be
video and/or news coverage of this case just until
furthernotice and that is because at this point in time there
is a pending case in court where Ms. Gallagher is a victim.
The
court explained that the court in the Heitzmann trial had
barred the jury in that case from hearing evidence about the
types of cases Gallagher handled, including that she
prosecuted capital murder cases. The court expressed its
"need to stick to that [judge's] order, " and
stated that the restrictions it imposed were "something
that can change once that trial has come to completion."
The court further explained that it did so to protect the
rights of the defendants (Allen and Heitzmann) and any
victims, and so the "sanctity of those trials is
protected."
¶5
Neither the prosecutor nor defense counsel commented
regarding the ruling; however, Petitioners' counsel, who
was present, objected. Petitioners' counsel argued the
restriction on using the prosecutor's name was an
unconstitutional prior restraint on the press and that the
court should consider less restrictive measures. The court
overruled the objection, reiterating that its order was
temporary, the rights of the two defendants and the victim
were "of the most concern to [the court] at this point,
" and the court wanted to ensure "that we don't
affect two separate trials." The court concluded,
"If there's a verdict today and [the Heitzmann
trial] is concluded today, then as of tomorrow you will be
able to write about [the prosecutor]." [4]
¶6 The jury in the Heitzmann trial
returned guilty verdicts on November 7, and the aggravation
phase of that trial concluded the next day.[5] The jury in the ...