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 theperson 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’ physicalanatomies 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.
4B. 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 anymember 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