United States Project

Maryland journalists challenge ban on broadcasting criminal court procedures

June 6, 2019

For Baltimore-based independent journalist Amelia McDonell-Parry, the Baltimore City courtroom audio captured during Keith Davis Jr.’s previous trials isn’t just a series of recordings. It’s the key to helping audiences understand why Davis, who was shot by Baltimore police in 2015 after he was wrongfully identified as a robbery suspect, is being tried yet again for a murder he says he didn’t commit.

“Each time that the state has failed to get a conviction for this man, they have continued to press onward,” McDonell-Parry says. “And since the case has gone to trial so many times, there’s an abundance of audio.”

But under Maryland’s Code of Criminal Procedure, McDonell-Parry is strictly prohibited from using that audio. A section of the code forbids anyone from recording or broadcasting criminal procedures if they occur in a trial court or before a grand jury, even if the audio or video in question was purchased directly from the court.

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In the past, McDonell-Parry and other reporters have found ways to work around that rule. When she and fellow Baltimore reporter Justine Barron investigated the 2015 death, in police custody, of Freddie Gray for the criminal justice podcast Undisclosed, they asked actors to reenact portions of the court transcripts. But for the latest season of Undisclosed, which examines Davis’s case, McDonell-Parry didn’t want to do that.

“If I had to act out every bit of testimony from a state witness, what is to stop me from doing that in a way that is misleading, either inadvertently or purposefully?” McDonell-Parry says. “It’s better to have people speak for themselves.”

With the help of attorneys from Georgetown Law Center’s Institute for Constitutional Advocacy and Protection (ICAP), McDonell-Parry let the court know she planned to publish the audio she had obtained. ICAP submitted a letter on behalf of McDonell-Parry to the Circuit Court of Baltimore City—“not asking for permission,” she says, “just sort of due diligence…letting them know we know about their rule, we think it stinks, and we’re going to go ahead and violate it.”

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McDonnell-Parry’s decision is one of several recent challenges to Maryland’s broadcasting prohibition. On May 28, ICAP and Maryland Volunteer Lawyers for the Arts, a non-profit organization, jointly filed a federal lawsuit targeting the same section of state code—§1-201—arguing that it violates “core First Amendment principles.”

Baltimore-based journalist Brandon Soderberg, the lead plaintiff in the lawsuit, says he first sought to challenge the prohibition in 2018, while he and fellow Baltimore journalist Baynard Woods researched a book and documentary about the Baltimore Police Department’s Gun Trace Task Force. Soderberg and Woods reached out to Adam Holofcener at Maryland Volunteer Lawyers for the Arts to see if he would take on the case; about a year later, the three learned that ICAP was interested in challenging the prohibition as well.

Audio is increasingly a medium through which people are experiencing the news. It really allows you to create a scene and ground it. I could sit here and describe it, but it’s much more effective for me to kind of set it up and then allow you to hear it.

Maryland’s prohibition on broadcasting court recordings has made it harder for journalists to do their jobs, Soderberg says, especially now that more long-form, investigative reporting is presented through podcasts.

“Audio is increasingly a medium through which people are experiencing the news,” Soderberg says. “It really allows you to create a scene and ground it. I could sit here and describe it, but it’s much more effective for me to kind of set it up and then allow you to hear it.”

Woods adds that some information in trials cannot be learned except through the audio and video provided by the court. The verbal tone and physical gestures used by members of the court are not in transcripts. A person attending a trial would likely not be privy to information shared at the bench, but that same information would be captured through audio recorded by the Maryland courts.

The Maryland General Assembly passed legislation creating the broadcasting prohibition in 1981, after the state’s judicial system began allowing some members of the press to record video and audio in court. Lucy Dalglish, dean of University of Maryland’s Philip Merrill College of Journalism, says the prohibition was passed as states across the nation experimented with cameras in the courtroom, though she’s uncertain what sparked legislators’ decision to end the program allowing cameras in Maryland’s courts during trial proceedings.

There’s no history of the court using the statute to actually prosecute, ICAP litigator Nicolas Riley says. After the popular NPR podcast Serial used Maryland courtroom audio of Adnan Syed’s case, the court reportedly considered holding the show in contempt, according to a Baltimore Sun article. Officials agreed not to enforce a penalty after Sarah Koenig, the host and producer, said she wouldn’t use Maryland court audio again. HBO, which used Baltimore courtroom footage in its documentary series “The Case Against Adnan Syed,” has also faced no repercussions.

Riley says the Supreme Court has previously ruled in multiple cases that members of the public or press cannot be punished for publishing accurate information, especially when that information is publicly available. Maryland’s own rules specify that anyone who submits a written request be given a copy of courtroom audio, with few exceptions.

“This law, consistent with a lot of other First Amendment-type violations, has had a real chilling effect on people’s ability to engage in protected speech and activities,” Riley, one of three attorneys representing the lawsuit’s plaintiffs, says.

Riley and his co-counselors aim to demonstrate that the broadcasting prohibition affects not just journalists, but activists and community organizers who focus on criminal justice as well. The lawsuit’s plaintiffs include Open Justice Baltimore, a non-profit that works to increase transparency surrounding the city’s police department, and Baltimore Action Legal Team, a group of attorneys who provide volunteer litigation services. Community organizer Qiana Johnson, who founded a criminal-justice non-profit in Prince George County called Life After Release, is the sole plaintiff outside of Baltimore City.

In addition to breaching the First Amendment, the lawsuit contends that Maryland’s broadcasting prohibition violates the Fourteenth Amendment’s due process clause. The statute does not define broadcast, a term which would presumably encompass distribution by television or radio, but could also be interpreted to include private conversations or simply giving a copy of the audio to another person. The code does not explain what penalty awaits those who violate the prohibition; though it stipulates that an offender can be held in contempt of court, it provides no sentencing guidelines.

“There’s the basic issue of our clients not knowing whether they’ve violated the prohibition, whether they can be held in criminal or civil contempt, whether they could potentially be incarcerated, whether they would pay a simple fine, or something else entirely,” ICAP litigator Daniel Rice says. “There’s no way for them to know what the exact nature of the consequences are.”

Before filing the lawsuit, Riley and Rice sent letters to two judges asking the court to identify why the state sees the need to suppress publicly available audio recordings, but they received no response. CJR also requested more information about why the broadcasting prohibition is in place; Nadine Maeser, who serves as public information officer for Maryland’s Administrative Office of the Courts, declined comment, citing pending litigation.

Some reporters have accused Maryland’s judiciary of unlawfully denying records altogether, in lieu of enforcing the broadcasting prohibition. Justine Barron, a Baltimore journalist who reported on Freddie Gray’s death for Undisclosed, says she was recently denied a copy of audio files she requested for an upcoming project. The court’s refusal came after Barron received confirmation from court officials that the recordings would be made available the next day; it also came after Undisclosed released the first episode of McDonell-Perry’s podcast containing Maryland courtroom audio. Barron says a court official invited her to the court to listen to the audio, but told her the court would not provide her with the audio because she was not a party in that case.

Woods says he, too, has been denied copies of court recordings since the court began refusing to distribute those materials in late April. ICAP has filed a lawsuit on Barron’s behalf challenging the court’s refusal to provide records. Maeser declined to answer CJR’s request for confirmation that a new policy regarding the provision of courtroom audio copies had been created, citing pending litigation.

Dalglish says she isn’t surprised by the court’s actions. What is surprising, she says, is that the law has gone unchallenged for so long. She predicts the recent round of challenges may finally change that.

“The legislature adopted it,” she says. “The legislature’s going to have to revoke it.”

In the meantime, Woods said he and other reporters who need copies of courtroom recordings are still being denied, and there’s no guarantee that their access will be restored quickly. That might pose a problem as he and Soderberg continue to create their documentary.

“We can use the video that we currently have,” Woods said. “But there’s the issue of whether we are able to get any more video.”

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Tadhg Hylier Stevens is an independent journalist living in Seattle, Washington. Their work focuses on the media, the LGBT community, and the triumphs and trials facing marginalized communities throughout the US. Follow them on Twitter at @tadhgstevens.