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
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Table of Contents

Federal appeals court opens sealed hearing transcript
Cameras permitted at gang beating trail

Reporter must testify at murder trial

Court rules hospital corporation outside state Sunshine laws

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 to jail health records ordered
AG clarifies personnel records exemption
Judge denies inmate's DOC records request

Commissioner fails in attempt to ban MTV and VH-1

Ban on campaigning in parks ruled unconstitutional
DCA reinstates 'hate speech' charges

Exempt confession may be published

Small News-Leader scores big victory for court access

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Federal appeals court opens sealed transcript

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)).

Cameras permitted at gang beating trial

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)

Reporter must testify at murder trial

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)

Court rules hospital corporation outside state Sunshine laws

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)

State will not file charges against Lake County Board

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)

Circuit court panel refuses to halt Thomas prosecution

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))

Judge denies city's motion to dismiss

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)

Access to jail health records ordered

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)

AG clarifies personnel records exemption

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))

Judge denies inmate's DOC records request

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))

Commissioner fails in attempt to ban MTV and VH-1

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)

Ban on campaigning in parks ruled unconstitutional

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))

DCA reinstates 'hate speech' charges

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))

Exempt confession may be published

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)

'Small' News-Leader scores big victory for court access

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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