Phoenix Newspapers, Inc. v. Otis

         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 ...