First Amendment Fight for Access

The State of Alaska lawsuit against Steven Downs has begun in secret.

The Fairbanks trial was held in person, but no one from the public or the press was allowed in the courtroom for any part of the trial due to COVID restrictions and limited seating. Instead, a live stream has been set up for interested parties to watch the proceedings.

But, when jury selection began on Jan. 11, the court did not livestream the “voir dire,” which is the process of interviewing potential jurors and ultimately selecting a jury. Instead, that day and the next day, jury selection was held behind closed doors to “protect the privacy of jurors,” according to the court.

This was an outright violation of the First Amendment and a stark departure from the way trials are conducted in Alaska and elsewhere in this country.

The U.S. Supreme Court settled the question of whether the voir dire was part of a public trial in 1984, noting in Press-Enterprise Co. v. Superior Court of California that the alleged openness of the jury selection process had been transferred from England during the colonial period. America, and was “a common practice in America when the Constitution was passed”.

Maintaining public access to jury selection, the court said, justifies “victim and community concerns knowing that offenders are brought to account for their criminal conduct by jurors fairly and openly selected”.

The secret start to that first day marked three weeks of interrupted public access that ultimately caused the Sun Journal and a small group of other media partners to fight for the right of access.

On January 11, once a jury had been selected, the court announced that the “open” proceedings would begin at 8:30 a.m. the following morning, accessible live.

And they did.

However, the next day — a Thursday — when Sun Journal writer Christopher Williams logged on to the live stream at 8:30 a.m. Alaska Standard Time, the screen read “offline.” He contacted the court clerk several times and at 9:19 a.m. received a message that the trial had been postponed to the following Tuesday due to exposure to COVID.

There has been no media or public notice regarding this postponement.

During the same period of days, the court announced it would take discretionary breaks during the presentation of evidence “which, in order to preserve the privacy and dignity of the alleged victim, will not be shared with the public.” , and that the court would not announce the restart of the livestream. Instead, the audience was told “you’ll need to refresh the page to get back into the courtroom.”

Judith Meyer Andrée Kehn/Sun Journal

If the trial had taken place in a public courtroom, none of this would have happened. The people in the courtroom could have seen and heard everything.

But, in Alaska, the live stream was set to shut down without notice, slamming the virtual door of a public proceeding, and the only way to know when that door was reopened was to refresh a computer screen again, and again. , and again, and again.

And, the court ordered that there should be no screenshots of the live stream for any reason, which was against the court’s administrative order regarding access to the camera and media coverage.

That order banning screenshots was overturned hours after the press pushed back, since photos are allowed in Alaska courts, but the court’s procedure for going “off camera” without notice remained.

The Sun Journal contacted Michelle Theriault Boots, who is a reporter for the Anchorage Daily News, to assess whether this was standard operating procedure in Alaska, and she said it was not.

So the Sun Journal reached out to Fairbanks attorney John McKay, and together we assembled a coalition of media partners to challenge the court’s trial proceedings on the basis of the First Amendment.

The Sun Journal was joined by WMTW and WCSH in Maine, and by KUAC public television in Alaska, KTUU-TV, KTVF11, the Anchorage Daily News and the Fairbanks Daily News-Miner.

The first thing we did was determine that neither the prosecutor nor the defense team had filed any motions seeking restrictions on public access, but the prosecution has been concerned about broadcasting or otherwise releasing “the most graphic or intimate photos of the victim taken at the crime scene or during his autopsy”.

It was a legitimate concern, but no member of the media covering this trial would have released such footage, and the court made no effort to put in place a system to stop the video while keeping the audio streaming. to allow continued public access to the proceedings.

The second thing we did was write a letter to Judge Thomas Temple outlining our objections, which were:

— The court’s decision to deny access to the parts of the trial concerning certain testimony concerning the victim of the murder; and

– The court’s procedure for turning off the cameras without notice while the court was still in session, with no information being provided to the public as to whether the court is on a lunch break, or if the court is in session and conducting proceedings that the press and public are not permitted to observe, or if the court is not actually in session at all for the entire day due to COVID protocols.

And then the trial began in earnest.

Video and audio streaming stopped without warning, sometimes several times a day for large blocks of time.

When the defense team cross-examined a state trooper who had been involved in the sexual assault and murder investigation, the video and audio cut out for over 15 minutes as the procedure was continuing.

Video and audio were often launched long after the first witness had been sworn in, and the live broadcast was cut off at noon and again before the end of proceedings for the day.

On January 24, the audio cut off just as Downs’ roommate was testifying that he had two guns while a student was in the dorm, came back for about seven minutes, and fell back. Williams peppered the clerk with notes requesting access, and was repeatedly told the court was having “technical” issues.

The court was aware when the live broadcast went down, as technicians monitored the broadcast and notified clerks when it got dark. Even so, the judge went ahead with the trial knowing the public was locked out.

Several times witnesses were sworn in before the audio was played, leaving the public and the press to wonder who the witness was, and in one case the entirety of the direct examination and the start of the cross-examination of a witness took place without a live stream.

To be fair, this was the first time the Alaskan court system had used a live-streaming platform for a jury trial, and the technology was finicky.

The judge never responded to the media coalition’s letter, but eventually the court figured out how to turn off the video while keeping the audio live during the autopsy testimony, and the issues with the audio streams and video were gradually resolved by the time the closing arguments were made, but this would not have happened without the full and vigorous fight of the media calling for a public process.

The clerks and the area court administrator were very responsive in notifying the media when the jury left the building for the day while deliberating, and also when the jury returned with their verdict, which was a welcome relief from the constant pressure for information. .

This country’s fundamental concept — protected by the First Amendment — that we hold fully open public proceedings in criminal trials has been sorely tested in Alaska.

This lawsuit could serve as an example for the Pine Tree State.

In Maine, while photos, audio and video recordings are permitted during openings, closings and verdict, the rest of the trial is closed to recording or photography, including all testimony, effectively excluding members of the public who cannot be physically present in the courtroom. even though the technology exists to broadcast everything live.

Consider the trials of the defendants in the murders of George Floyd and Ahmaud Arbery that aired on national television, better informing the nation of our legal and justice systems. These trials were of immense national interest, but even the simplest of all local trials must operate within the same constitutional adherence to public access.

In this age of advanced technical capabilities, in the age of Zoom, it is time to use this technology to better inform the public about what is happening in Maine courtrooms. After all, we do it for city council meetings, school board meetings, and other public places.

And, when we do, let’s make sure the technology is stable. Without it, public access is deficient.

Judith Meyer is editor of the Sun Journal, the Kennebec Journal and the Morning Sentinel.

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