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BEFORE THE PRESIDING DISCIPLINARY JUDGE IN THE MATTER OF A MEMBER OF PDJ-2019-9008 THE STATE BAR OF ARIZONA, ORDER LIMITING JUAN M. MARTINEZ, REQUEST FOR CAMERA Bar No. 009510 COVERAGE Respondent. [State Bar Nos, 17-0624, 18-0693] FILED JANUARY 7, 2020 I SUMMARY Various news media networks (collectively, the “Media”) have requested permission to video-record Respondent's forthcoming disciplinary hearing. Respondent objected to “any camera, video or still coverage” of the hearing, For the reasons set forth herein, a limited aspect of the Media request is granted. Photography will be permitted, but video or audio recording devices will not be permitted at the hearing. There shall be no photographing of witnesses. Il ANALYSIS Arizona Supreme Court Administrative Order No. 2019-126 states that “all types of video recording, photography, including sharing video or live-streaming to social media sites, or other types of broadcasting . . . are prohibited at 1501 West Washington, Phoenix, Arizona . . . in areas dedicated to court use . . . unless the person proposing a recording obtains advance written consent of the subjects and permission” of the judge. The Rules of the Supreme Court of Arizona permit a person to request permission to record a legal proceeding; a request for coverage should “generally be approved, but a judge may deny or may limit the request.” Supreme Court Rule 122(d). A witness may object to a request to record their testimony. Supreme Court Rule 122(c)(5). To deny a request for coverage, the judge must make “specific, on-the-record findings that there is a likelihood of harm arising” from various factors, including, inter alia, “whether the person making the request is engaged in the dissemination of news to a broad community;” the “impact of coverage upon the right of privacy of any party, vietim, or witness, or juror;” and the “likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding.” Supreme Court Rule 122(d)(1). The judge must then find that the “harm outweighs the benefit of the coverage to the public.” /d. ‘A judge may “prohibit coverage of the testimony of [a] witness upon a determination that coverage would have a substantial adverse impact upon that witness or his or her testimony.” Supreme Court Rule 122(d)(2)(C). A judge may also “limit or terminate [recording] activity that is disruptive to court operations.” Supreme Court Rule 122.1(0) ‘The Supreme Court of Arizona has emphasized the privacy interests of people who attend court proceedings, and that “[hJaving their image recorded and displayed on the internet while at a court facility or a court-related proceeding . .. can put these persons in jeopardy, expose them to embarrassment and intimidation, and discourage participating in the judicial process. The Arizona judiciary must secure the trust and confidence of these persons and the general public by maintaining decorum and minimizing distraction and disruption” that could be caused by recording, Administrative Order No. 2019-126. Several issues are implicated here, including privacy, the right of news media access to judicial proceedings, and disruption of legal proceedings. A, Privacy In considering an objection to coverage, a judge must consider “the impact of coverage upon the right of privacy of any party, victim, or witness.” Supreme Court Rule 122(d)(1)(A). The underlying criminal trial from which this disciplinary proceeding arose received significant national media attention. Here, Respondent’s witnesses wish to “preserve their right to privacy and to avoid the vexation of being hounded by reporters, television cameras and microphones.” (Respondent’s Memorandum re Request for Camera Coverage at 2). The anticipated testimony is expected to be “highly sensitive and very private,” with “intimate descriptions of persons’ physical anatomies and sexual proclivities,” in addition to testimony about medical conditions. Id. When personal information is taken away and broadcast, that person can be alienated in multiple way regardless of whether it is intended or not. They become objects used for an end of others. Candor is thereby imperiled. When individuals know that their statements, memories, and interactions are observed, criticized, or serutinized they become more subject to conforming to various norms and expectation rather than candor. These risks are ameliorated by permitting a limited visibility. There is a likelihood of harm arising from video recording witness testimony. “The witnesses are likely to have their personal details scrutinized via the significant media coverage of the underlying trial. Future witnesses may be discouraged from testifying or alter their testimony knowing that their personal details may be subjected to public scrutiny, which affects the overall administration of justice. The likelihood of that harm outweighs the benefit to the public. ‘There is another concern. Rule 615, Arizona Rules of Evidence has been invoked. That rule requires the court to exclude other witnesses from the hearing “so that they cannot hear other witnesses’ testimony.” The recording or videoing of testimony will increase the potential that the rule could be circumvented and impact or change the testimony of the future testimony of a witness to follow. 4 B. Dissemination of News In considering an objection to coverage, a judge must consider whether the person requesting coverage “is engaged in the dissemination of news to a broad community.” Supreme Court Rule 122(d)(1)(G). Such is the case here, and the news media’s access to judicial proceedings is indeed vital to the justice system. While “[i]t is undisputed that the public has a constitutional and common law right of access to observe court proceedings,” KPNX-TV Channel 12 v. Stephens, 236 Ariz. 367, 370 § 8 (App. 2014), the United States Supreme Court has stated that generally the media have “no right to information about a trial superior to that of the general public.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978). Within “the courthouse door . . . a reporter’s constitutional rights are no greater than those of any other member of the public.” /d, There is “no constitutional right to have [live witness] testimony recorded and broadcast.” Jd. at 610. Instead, “[t]he requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.” Jd. In KPNX-TV, the issue facing the court was whether a party could testify “outside of the presence of the press and the public.” KPNX-7V, at 369 { 3. The court stated that the “exclusion of the public . . . ‘is an extraordinary measure and should be done with caution.”” Id. at 370 § 8. But here, the public is not being excluded, nor are the Media. The Media will be able to attend the hearing to the same extent any member of the public can. The Media will be able to take pictures and notes and report on the proceedings. The order preventing live recording of the hearing is not a total exclusion, but a limitation. The public trial requirement is satisfied, Perhaps the public could benefit or be entertained by a live video recording of the hearing. But the benefit is marginal. The public will be able to watch summaries of the proceeding or read news articles detailing the proceeding regardless of a live video stream. The likelihood of harm outweighs the marginal benefit of receiving the news slightly quicker and in a visual format. C. Disruption In considering an objection to coverage, a judge must consider “the likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding.” Supreme Court Rule 122(4)(1)(D). Here, the presence of live coverage would create a significant disruption. The parties would be forced to bifurcate the presentation of their cases into the portions that can and cannot be recorded. Because of these limitations, the parties’ counsels would have less agency to present their cases in the manner they find best. Enat ng and disabling video cameras and excusing and inviting media members back into the hearing would impact the efficiency of the hearing, Il. CONCLUSION The Presiding Di iplinary Judge finds there is a likelihood of harm arising from video-recording the proceeding, and that harm outweighs the benefit to the public; that coverage would have a substantial adverse impact upon the witnesses or their testimony; and that coverage would disrupt the proceeding. Now Therefore, IT IS ORDERED the Media’s Request for Coverage is granted in part. Respondent’s Objection to Unlimited Coverage is granted in part. The Media are granted limited access to the proceeding: no recording devices or live or video recording or filming of the proceeding shall be permitted, but the Media may attend the unsealed portions of the hearing and may take notes and still photography, but not of any witnesses. DATED this 6" day of January 2020. William Lf. etl William J. O’Neil, Presiding Disciplinary Judge COPY of the foregoing e-mailed/mailed on this 7® day of January 2020, to: Counsel for the State Bar Craig D. Henley Stacy L. Shuman State Bar of Arizona 4201 N. 24" Street, Suite 100 Phoenix, AZ 85016-6266 Email: Iro@staff.azbar.org, Counsel for Respondent Donald Wilson, Jr Wesley S. Loy Broening Oberg Woods & Wilson, PC 2800 N. Central Ave., Suite 1600 Phoenix, AZ 85004 Email: dwj@bowwlaw.com David J. Bodney Mark S. Kokanovich Ballard Spahr LLP 1 E. Washington Street, Suite 2300 Phoenix, AZ 85004-2555 Email: bodneyd@ballardspahr.com kokanovichm@ballardspabr.com Christine Goodfriend Fox 10 511 W. Adams Phoenix, AZ 85003 Christine.goodfriend@foxtv.com Stephen A. Lawrence Trial Content Producer Law & Crime Network 1261 Broadway, Suite 609 New York, NY1001 By BEnsign

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