PUBLIC ACCESS TO COURT RECORDS, JERRY SANDUSKY, & OTHER INTERESTING ISSUES. David S. Price Staff Counsel Administrative Office of Pennsylvania Courts

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1 PUBLIC ACCESS TO COURT RECORDS, JERRY SANDUSKY, & OTHER INTERESTING ISSUES David S. Price Staff Counsel Administrative Office of Pennsylvania Courts

2 SANDUSKY - TWEETING FROM THE COURTROOM 2

3 SANDUSTY TWEETING FROM THE COURTROOM 3

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6 TWEETING FROM THE COURTROOM Decorum Order Governing Jury Selection and Trial, dated May 30, 2012, permitted credentialed members of the media to possess or use in the courtroom any cell phone, laptop computer, smart phone, or similar electronic device. Such devices may be used during trial for electronic based communications. However, the devices may not be used to broadcast any verbatim account of the proceedings while court is in session. 6

7 TWEETING FROM THE COURTROOM What is broadcasting? The judge in this held it is the simultaneous transmission of a verbatim account of the proceeding. While reporters would be free to paraphrase the testimony, one cannot include verbatim accounts of what was said in court. Witness A testified that he saw the defendant with the victim at 7:30 pm on October 14. Defendant was with the victim the night of the offense according to a witness. 7

8 TWEETING FROM THE COURTROOM Why use the term broadcast? Pa.R.Crim.P. 112 prohibits the broadcasting (via television, advanced communication, etc.) of court proceedings from the courtroom during the progress of or in connection with any proceeding (with some limited exceptions). Code of Judicial Conduct Canon 3(A)(7) provides that unless otherwise provided by the Supreme Court (which did not occur in this case), judges shall prohibit broadcasting in the courtroom and areas immediately adjacent thereto. 8

9 TWEETING FROM THE COURTROOM Attorneys representing some media entities objected to this limitation and asserted: It would risk diminishing the accuracy of reports on the trial. Prohibiting the use of direct quotations is impractical and difficult to implement (e.g. not workable for reports to avoid using direct quotes and no clear line what is permissible or prohibited). Using direct quotes in reports does not prejudice any interest or impede the judicial process. Any restriction on reporting direct quotations would be unconstitutional. 9

10 TWEETING FROM THE COURTROOM Judge held that based upon media allegations, the court is compelled to amend the decorum order so that no transmission (e.g. broadcasting) of any form of communication occurs from the courtroom. As one member of the media observed thank you out-of-town legal experts with your slides no tweeting allowed. 10

11 TWEETING FROM THE COURTROOM Sentencing hearing for Defendant. No electronic communications from courtroom per Decorum Order. No one permitted to leave courtroom until court was adjourned. Court noted in the record the time of adjournment (10:22 am). Any report or broadcast of the [sentencing hearing] posted or broadcasted before the noted time [of adjournment] will be deemed to have been made in violation of this order and may result in sanctions. 11

12 TWEETING FROM THE COURTROOM 33 apparent violations of the court s order. The first tweets from the courtroom may have occurred as early of 9:08 am. Is the only solution not to permit electronic devices in the courtroom with communication capabilities if a court does not allow broadcasting? 12

13 TWEETING FROM THE COURTROOM Proposal to amend statewide rules of criminal procedure to specifically prohibit tweeting or other electronic communications from courtroom. No consistency amongst the county courts as to what is broadcasting. For example, Westmoreland County forbids tweeting from the courtroom in criminal cases as a violation of Pa.R.Crim.P. 112 while a Dauphin County trial judge permitted reporters tweeting during a public corruption trial. In addition, Centre County permitted texting and tweeting from a preliminary hearing arising from a child sexual abuse case. 13

14 SANDUSKY - CONCEALING THE NAME OF ADULT VICTIMS 14

15 CONCEALING THE NAME OF VICTIMS Victims request to use pseudonyms. The request was denied because there is no support in Pennsylvania Law for offering anonymity to an adult witness because the witness is one of a class of victims of a particular form of crime. It may well be in a specific and unique cases that a particular witness, for any number of reasons, ought to be protected with a pseudonym. Such evidence was not established. 15

16 CONCEALING THE NAME OF VICTIMS 42 Pa.C.S makes it a criminal offense to release the name of a child victim of sexual or physical abuse. While the offenses were committed when the victims were children, the victims were adults at the time of trial. 16

17 SANDUSKY - JURY CONSULTANT INFORMATION 17

18 JURY CONSULTANT INFORMATION Defense filed a motion to request a hearing on whether the prosecutor must turn over information it collected on prospective jurors. Defense jury expert had scheduling conflict and court would not continue trial. Court denied the request for several reasons including there is no constitutional due process right to such information predicting how any one person will vote in the jury room is far from an exact science, and, therefore, refusing to order the [prosecutor] to share such information cannot be said to be fundamentally unfair. 18

19 INDEPENDENT RESEARCH BY JURORS 19

20 INDEPENDENT RESEARCH BY JURORS Allegheny County (Pittsburgh) all civil court filings are posted online. Immediately prior to the commencement of jury selection, access to online court filings are blocked until the conclusion of the case. Paper access still available with presiding judge. 20

21 INDEPENDENT RESEARCH BY JURORS Instances when juror(s) performed independent research despite jury instruction advising against the same. Concern is that temptation too great for some jurors. Contrast with approach in Sandusky case wherein the judge did not sequester the jury because he trusted they would abide by their oath to follow his instructions. 21

22 INDEPENDENT RESEARCH BY JURORS Proposal to amend the statewide rules of civil and criminal procedure to provide that persons selected for jury service shall be instructed to not: use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose any information about any case in which they have been chosen as prospective or selected jurors. Information about the case includes, but is not limited to, the following: (i) information about a party, witness, attorney, judge, or court officer; (ii) news accounts of the case; (iii) information on any topics raised or testimony offered by any witness; (iv) information on any other topic the juror might think would be helpful in deciding the case. 22

23 TAKE DOWN REQUESTS 23

24 TAKE DOWN REQUESTS Commonwealth Court hears appeals from state agencies (e.g. unemployment compensation matters, worker compensation matters, etc.). Opinions posted online to be easily accessible by all whereas prior the opinions were only essentially accessible to state agencies. Cases involve sensitive matters (e.g. allegations of willful misconduct, worker compensation benefits for mental health illness, etc.). 24

25 TAKE DOWN REQUESTS Pro se litigants are unaware of the negative impact these decisions may have on future opportunities (e.g. no job offers because court held that defendant fired from prior job because of willful misconduct). Parties may not pursue a legitimate claim for benefits for fear that a successful outcome will be appealed by the other side and thus result in opinion posted online (e.g. mental health). Court has received and granted requests to take down opinion because of harm. 25

26 TAKE DOWN REQUESTS All pro se parties who wish to appeal an agency decision are advised in writing by the court that: Unless sealed by statute or court order, all dockets, filings, and orders and opinions of the Court in your case will be public records and subject to public inspection. The Court s public dockets are available on the Court s website and are searchable on-line. The Court s opinions, which generally include a summary of the case including the identity of the parties and the relevant factual background, also are available on the Court s website and searchable on-line. Generally, the Court will seal or restrict public access to dockets or opinions only upon motion and only for good cause. 26