The
Brechner Report
Volume 20, Number 10
October 1996
A monthly report of mass media law in Florida
- R. Michael Hoefges, J.D., Editor
- Eric Fritz, Production Coordinator
- Michelle Mader, Prod. Assistant
- Bobbie Stewart, Prod. Assistant
- Bill F. Chamberlin, Ph.D., Director
- Sandra F. Chance, J.D., Asst. Director
Brechner Center for Freedom of Information
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
COURTS
Federal
appeals court opens sealed hearing transcript
Cameras permitted at gang
beating trail
REPORTER'S PRIVILEGE
Reporter must testify at
murder trial
ACCESS GENERAL
Court
rules hospital corporation outside state Sunshine laws
ACCESS MEETINGS
State will not
file charges against Lake County board
Circuit court
panel refuses to halt Thomas prosecution
Judge denies city's motion to
dismiss
ACCESS RECORDS
Access to jail health records
ordered
AG clarifies personnel
records exemption
Judge denies inmate's DOC
records request
CABLE
Commissioner fails
in attempt to ban MTV and VH-1
FIRST AMENDMENT
Ban on
campaigning in parks ruled unconstitutional
DCA reinstates 'hate speech'
charges
PRIOR RESTRAINT
Exempt confession may be
published
THE BACK PAGE
Small News-Leader
scores big victory for court access
![lines_blue_078[1].gif (1878 bytes)](lines_blue_0781.gif)
ATLANTA - The U.S. Court of Appeals, 11th Circuit, agreed with a lower court ruling
that unseals the transcript of a closed hearing in the federal criminal proceedings
against former Nassau County Sheriff Lawrence "Laurie" E. Ellis.
At the closed hearing, a magistrate judge granted a motion by Ellis to obtain
court-appointed counsel during the appeal of his conviction on multiple counts including
drug trafficking. Before granting the motion, the magistrate performed an "in
camera" or private inspection of Ellis' financial circumstances, including the fee
arrangement Ellis made with the lawyer that represented him during the criminal trial.
The Fernandina Beach News-Leader had objected to the closed hearing, but the
magistrate ruled that closure was necessary to protect Ellis' Fifth Amendment rights.
Subsequently, the magistrate ordered the transcript unsealed.
The district court affirmed the magistrate's order. Ellis then appealed to the 11th
Circuit and argued that the information he submitted to the magistrate for inspection
should remain sealed.
The 11th Circuit disagreed and stated that the purpose of the "in camera"
disclosure is to "protect the defendant's right to a fair trial," which
"would not be served by maintaining the transcript under seal once the prosecution
has been concluded."
The 11th Circuit also upheld Ellis' convictions. (See related story, page 4) (Decisions
on File, U.S. v. Ellis, Nos. 93-3230 and 94-2570 (Aug. 2, 1996)).
WEST PALM BEACH - Judge Karen L. Martin, 15th Judicial Circuit, denied a defense motion
to ban cameras from the courtroom during the trial of four juveniles accused in the
gang-related beating last year of an 18-year-old man in Boca Raton.
Defense attorneys unsuccessfully argued that cameras would intimidate jurors and
witnesses. They also had cited the youth of the defendants in their argument. (8/17/96)
BARTOW - Judge Roger B. Colton, 15th Judicial Circuit, ruled that Miami Herald
reporter David Kidwell must testify for the prosecution at the murder trial of John Zile.
The 2nd District Court of Appeal has refused to review Colton's ruling.
Kidwell interviewed Zile for a story published in the Herald. In the interview,
Zile admitted that he beat his stepdaughter, 7-year-old Christina Holt, and tried to
conceal her body after she died later that night. Zile claims the death was accidental.
Zile's wife, Pauline Zile, has been convicted of murder and aggravated child abuse in the
death.
Colton ruled that since Zile is not a confidential source, Kidwell must testify about
the interview. The ruling is based on a case in which the 4th District Court of Appeal
refused to quash a prosecution subpoena to a journalist who interviewed a murder suspect
for an article published in XS Magazine. (Brechner Report, May 1996)
Zile's first trial in Palm Beach County ended in a hung jury. The prosecution
subpoenaed Kidwell to testify at that trial, but did not call him. The second trial was
moved to Polk County because of pretrial publicity. (8/12/96-8/21/96)
DELAND - Judge Patrick G. Kennedy, 7th Judicial Circuit, ruled that the Public Records
Law and Open Meetings Law do not apply to Memorial Hospital-West Volusia Inc., the
not-for-profit corporation that runs Memorial Hospital-West Volusia.
The corporation was created when Memorial Health Systems leased the hospital in 1994
from the West Volusia Hospital Authority. The hospital authority is an independent taxing
authority created in 1957 to establish and operate health care facilities, provide health
care to area residents and fund indigent health care.
Kennedy said the legislation authorizing reorganization of public hospitals does not
refer to open records or open meetings laws and that MH-WV Inc. does not act on behalf of
a public agency. The lease does not refer to open records or open meetings either, he
noted.
"This court is unwilling to insert new obligations in (the lease) agreement
without clear authority," Kennedy wrote.
The ruling came in a suit filed by the Daytona Beach News-Journal. The newspaper
argued that MH-WV Inc. operates on behalf of the hospital authority and should be subject
to public scrutiny. (8/1/96-8/3/96)
TAVARES - Developers claim that a panel of Lake County Environmental Protection Board
staff aides met privately to conduct county business, but Assistant State Attorney Jim
McCune has found no violation of the law and will not file charges.
Developers Rodney and George Lyon claim that the panel, known as the Technical Review
Committee, met in January without public notice and decided that the Lyons had to obtain a
mining permit before developing a parcel of land in Clermont.
McCune stated in investigative reports that county officials and employees may have
made mistakes based on confusion about the Open Meetings Law. However, he wrote, there is
"no evidence on the part of any Lake County official or employee of any intentional
or malicious disregard of the requirements of Florida Law."
A civil suit filed by the Lyons remains pending. They claim that the TRC makes
recommendations on site plans and should meet in public. The county claims that the TRC
consists of staff members performing their daily job duties and is not subject to the Open
Meetings Law. (7/31/96-8/1/96)
TAVARES - A panel of 5th Judicial Circuit judges refused to prohibit the criminal
prosecution of former Mascotte Mayor Odis "Josh" Thomas for an alleged violation
of the Open Meetings Law.
Thomas had asked the panel to enter a writ of prohibition and order Lake County Judge
Richard W. Boylston, the trial judge in the case, to halt the proceedings. The panel
stated that although Boylston's reading of the criminal portion of the Open Meetings Law
is "admittedly liberal," Boylston has not exceeded his jurisdiction.
Thomas is accused of discussing city business with two council members. (Brechner
Report, November 1995)
Boylston has refused to dismiss the case. (Decisions on File, Thomas v. The
Honorable Richard W. Boylston, 4 Fla. L. W. Supp. 129 (May 31, 1996))
FORT PIERCE - Judge Scott M. Kenney, 19th Judicial Circuit, denied a motion by the city
of Fort Pierce to dismiss a lawsuit that alleges the city violated Florida's Open Meetings
Law.
Sean Murphy claims in the suit that the city did not give public notice of a July
hearing at which water and sewer assessment rolls were determined for a utility expansion
project. The city has denied Murphy's claims. (8/14/96)
ST. PETERSBURG - Judge Horace A. Andrews, 6th Judicial Circuit, ruled that EMSA
Correctional Care, a private company that provides medical care at the Pinellas County
Jail, must comply with the Public Records Law and release records regarding health care at
the jail.
However, EMSA immediately appealed Andrews' order to the 2nd District Court of Appeal.
Andrews agreed to delay enforcement of the order temporarily until the appellate court
decided whether it would accept the case and review the order.
The St. Petersburg Times filed the court action. The Times is seeking
EMSA records including personnel records of EMSA employees, disciplinary actions and
health care quality control records.
Pinellas Sheriff Everett Rice hired EMSA last year to provide health care to inmates at
the Pinellas County jail.
The company became the subject of criticism after inmate Melanie Bird died in April.
(7/4/96-7/17/96)
TALLAHASSEE - Attorney General Bob Butterworth stated that an exemption for information
about Department of Revenue or local government personnel "whose responsibilities
include revenue collection and enforcement" does not apply to personnel whose duties
include either collection or enforcement, but not both.
Butterworth stated that the exemption must be "narrowly construed" and that
the word "and" in the exemption "must be given its ordinary meaning as a
conjunction."
Florida Statute section 119.07(3)(i) exempts "home addresses, telephone numbers,
social security numbers, and photographs" of personnel responsible for collection of
tax revenue and enforcement.
The Highlands County Clerk of Courts requested the opinion. (Decisions on File,
Fla. Att. Gen. Op. 96-57 (July 19, 1996))
LAKELAND - Judge Charles A. Davis, Jr., 10th Judicial Circuit, denied an inmate's
records request for a food inspection report from Avon Park Correctional Institution.
Davis agreed with prison officials that public records provisions require inmates to
show an "exceptional need" to gain access to Department of Corrections records.
Davis ruled that the inmate, Carl Tungate, did not show an "exceptional need"
for the report. (Decisions on File, Tungate v. Ward, 4 Fla. L. W. Supp. 144 (June
18, 1996))
BELLEAIR - The Belleair commission refused to act on Commissioner Don Sprague's plan to
ban music channels MTV and VH-1 from basic cable service provided by Time Warner to
Belleair subscribers.
Sprague, who called the music channels "immoral," wanted the channels offered
only as "premium" channels that customers would request and pay for separately.
Sprague also told Time Warner of a new federal law that he says requires cable
operators to block unwanted channels for free.
Time Warner agreed that customers may request a free "negative trap," a
device that prevents receiving unwanted channels.
New federal legislation requires cable operators, on a subscriber's request and at no
charge, to scramble or block "sexually explicit adult programming" or
"indecent" material shown on "adult networks" that primarily feature
sexual material. (7/4/96-7/20/96)
FORT PIERCE - A U.S. District Court magistrate judge recently ruled that a county
ordinance that prohibits political campaign activities in Palm Beach County parks violates
the First Amendment.
The ordinance bans "display advertising" and distribution of literature
containing "any advertising." The ordinance also prohibits making political
speeches in parks without first having obtained permission from the county's Director of
Parks.
Judge Frank J. Lynch, Jr., ruled that the ordinance operates as an unconstitutional ban
on political campaigning and advertising in public parks.
"Public parks have traditionally been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions," Lynch wrote in the
opinion.
Frank Connor had challenged the ordinance in court. When Connor was a candidate for
governor in 1994, he and members of his staff were denied access to DuBois Park in
Jupiter.
Connor wanted to hold a political rally in the park from a flatbed truck with signs and
banners reading "Connor for Governor." Some of Connor's staff had on T-shirts
bearing the same campaign message.
A deputy sheriff told Connor that he would be arrested for violating the county
ordinance if he entered the park.
Lynch entered an injunction prohibiting the county from enforcing the ordinance and
awarded attorneys' fees and court costs to Connor. (Decisions on File, Connor v.
Palm Beach County, Case No. 95-8628-CIV-HURLEY (May 29, 1996))
WEST PALM BEACH - The 4th District Court of Appeal ruled that a defendant who allegedly
threatened an African-American police officer during an arrest could, if convicted, have
his sentence enhanced for allegedly using racial epithets.
The defendant, William Hart, allegedly called Broward Sheriff's Officer Barry Whitfield
a "nigger" and threatened to burn crosses in his yard, kill him and hurt his
family. Hart allegedly also stated that he would sue Whitfield if Hart was arrested.
Hart was charged under Florida Statute section 838.021(1), which makes it a crime to
threaten a public servant in order to influence the performance of official duties.
Hart also was charged under section 775.085, which enhances the penalties for
bias-motivated crimes, including racial bias.
The trial court had dismissed the enhancement charges. The appellate court ruling
reverses that decision. (Decisions on File, Florida v. Hart, 21 Fla. L. W. D1638
(July 17, 1996))
MIAMI - Judge Richard V. Margolius, 11th Judicial Circuit, refused to ban the
publication of a murder suspect's confession. The confession was mistakenly released by
the Dade State Attorney's Office.
Although confessions are exempt from release under the Public Records Law, the state
attorney's office accidentally included the confession of murder suspect Rory Conde with
other documents produced in response to a public records request. The request was made by Exito!,
a weekly newspaper published by the Sun-Sentinel Co.
After the Ft. Lauderdale Sun-Sentinel reported on Conde's confession, Conde's
lawyer asked Margolius to ban further publication of the confession in the media.
Margolius refused and ruled that the confession became a public record once the state
attorney's office released it to Exito!, even though the release was unintentional.
In the 175-page confession, Conde related graphic details about the killings of six
prostitutes in 1994 and 1995. (8/19/96)
Sheriff Lawrence "Laurie" E. Ellis enforced the law in Nassau County, and he
dealt in cocaine and pot on the side. This conflict of interest came to the attention of
the federal government.
A federal grand jury indicted Ellis in 1993 on ten counts of drug dealing and
obstruction of justice. He was convicted and sentenced to 16 years in prison.
Ellis wanted to appeal, but he said he had no money to pay for a lawyer. However,
before a court may appoint counsel in the federal courts of Florida, Georgia and Alabama,
the judge must be satisfied that the defendant's economic situation justifies it. This
procedure seems especially warranted where drug dealers are involved.
The Fernandina Beach News-Leader is one of the smallest newspapers in the New
York Times Company Regional Newspaper Group. It is also one of the most energetic. It
sought to cover the hearing at which Ellis' finances, including his fee arrangements with
his trial counsel, would be discussed.
Ellis argued that the hearing should be held in secret. He said an open hearing would
violate his Fifth Amendment rights, including the right against self-incrimination, and
the attorney-client privilege.
Ellis also pointed to language in the court rules that seem to require closed hearings.
These rules call for the judge to make an "in camera" inspection of the
financial information before ruling. However, the rules do not require that the hearing
transcript be sealed.
The hearing was held in secret. At its conclusion, the court ordered that a transcript
be released because no sensitive information had been disclosed and because taxpayers
should know how their money is spent. The court stayed its ruling pending appeal.
Ellis, represented now by court-appointed counsel, appealed his criminal conviction. He
also appealed the ruling unsealing the transcript, but was represented by his trial
counsel for that portion of the appeal.
The U.S. Court of Appeals for the 11th Circuit devoted a paragraph to the appeal of
Ellis' conviction. It was held to have "no merit."
The court wrote at much greater length on the access issue. It said that the First
Amendment always requires case-by-case analysis of courtroom and court record closure
matters, even when a statute or court rule seems to mandate secrecy in every case. It said
that, in any event, even potentially prejudicial records must be released once the
prosecution is concluded. And it held that the forced disclosure of fees paid to
privately-retained counsel does not violate the attorney-client privilege because
information concerning clients, lawyers and the fees paid by the former to the latter are
not privileged.
The precise issue of access to hearings involving criminal defendants who say they have
run out of money and want court-appointed counsel is not insignificant and will recur. But
the Ellis case stands for broader principles as well, and it will help the press gain
access to various kinds of court hearings and records in the years to come.
Adam Liptak is Senior Counsel in the Legal Department of the New York Times Company,
New York. The News-Leader was represented in the Ellis case by George D. Gabel, Jr. and
Robert M. Dees, Gabel & Hair, Jacksonville.
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