IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PALM BEACH NEWSPAPERS LLC
d/b/a The Palm Beach Post
Petitioner,
)
)
vs.
)
CASE NO. 4D15-4572
)
L.T. CASE NO. 2011CF0091349AMB
STATE OF FLORIDA,
)
JAMAL SMITH,
FREDERICK COBIA
)
Respondents.
)
________________________)
RESPONSE TO PETITION FOR WRIT OF CERTIORARI
From the Circuit Court
of the Fifteenth Judicial Circuit,
In and For Palm Beach County, Florida
[Criminal Division].
VALERIE MASTERS
301 Clematis Street, Suite 3000
West Palm Beach, Florida 33401
Tel. (561) 659-9410
[email protected]
Attorney for Respondent Frederick Cobia
Florida Bar No. 67008
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS .................................................................................... …..1
AUTHORITIES CITED ................................................................................... ……2
STATEMENT OF THE FACTS ...............................................................................3
ARGUMENT
POINT I
STANDARD OF REVIEW……………………………………………………..4
POINT II
THE TRIAL COURT'S ORDER DID NOT VIOLATE PROCEDURAL DUE
PROCESS OR THE ESSENTIAL REQUIREMENTS OF THE LAW …………4
POINT III
RELIEF SOUGHT………………………………………………………………..6
CERTIFICATE OF SERVICE………………………………………………….8
CERTIFICATE OF FONT SIZE………………………………………………..9
1
AUTHORITIES CITED
Doe v. Doe, 567 So.2d 1002 (Fla. 4th DCA 1990)…………………………….6
Florida Freedom Newspapers, Inc. v. McCrary, 497 So.2d 652 (Fla. 1st DCA
1986)………………………………………………………………………………4
Gawker Media, LLC v. Bollea, 129 So.3d 1196 (Fla. 2nd DCA 2014)……….6
Jacksonville Television v. Fla. Dep't of Health and Rehab. Servs., 659 So. 2d 316
(Fla. 1st DCA 1994)…………………………………………………………….6
Media General Operations, Inc. v. State, 933 So.2d 1199, 1202
(Fla. 2nd DCA 2006)……………………………………………………………7
Miami Herald Publishing Co. v. Morphonios, 467 So.2d 1026, 1028 (Fla. 3rd DCA
1985)…………………………………………………………………………….5
Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976)…………………………………5
News-Press Publ'g Co. v. State, 345 So.2d 865, 867 (Fla. 2nd DCA 1977)….7
Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977)……………6
Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011)……………………………….6
State ex rel. Miami Herald Pub. Co. v. McIntosh, 340 So.2d 904 (Fla. 1976).5
Tribune v. Rudd, 415 So.2d 65, 66 (Fla. 1st DCA 1982)…………………….7
WFTV, Inc. v. Roe, 706 So.2d 132, 133 (Fla. 4th DC 1998)………………..7
2
FACTS
Respondent accepts the Petitioner's Statement of the Facts with the
following clarifications, additions and modifications:
Assistant Public Defender Elizabeth Ramsey’s Motion to Compel of August
6, 2015 A.2 and accompanying Notice of Hearing as well as the Notice of Filing
A.6 the transcripts of the Frederick Cobia telephone calls dated October 15, 2015
did not include notice to Mr. Cobia’s, attorney Valerie Masters making it
impossible to take action before the documents were made public in the Court file
and later published by the Palm Beach Post.
It is not undisputed as Appellant claims, that the Palm Beach Post obtained
the transcripts of the Cobia calls from the “open court file” because the Notice of
Filing A.6 the transcripts of Frederick Cobia’s calls was e-filed October 15th, 2015
and the Palm Beach Post article Palm Beach County Jail Inmate Doubles as
Jailhouse Snitch A.7 was first published online on PalmBeachPost.com the same
day.
3
ARGUMENT
I. STANDARD OF REVIEW
Petitioner seeks a petition for writ of certiorari pursuant to Florida Rule of
Appellate Procedure 9.100 (c) and (d). In ruling on a petition for writ of certiorari,
the court must determine if the trial court violated procedural due process or
whether its orders departed from the essential requirements of the law.
II. TRIAL COURT'S ORDER DID NOT VIOLATE PROCEDURAL DUE
PROCESS OR THE ESSENTIAL REQUIREMENTS OF THE LAW.
Petitioner is not automatically entitled to any information that was been or
might be entered into the court file during the conduct of the trial. The First
District Court of Appeal denied a petition seeking review of an order prohibiting
access to transcribed statements, furnished through discovery, during the pendency
of two criminal trials in Florida Freedom Newspapers, Inc. v. McCrary, 497 So.2d
652 (Fla. 1st DCA 1986). A newspaper began to publish a series of articles
alleging jailer mistreatment and abuse of inmates. Other area newspapers published
more stories alleging further incidents. Id. at 653. Several correctional officers
were arrested and charged with a number of offenses, including felonies such as
aggravated child abuse. Id.
Two of the officers filed motions to control prejudicial pretrial publicity to
prevent public disclosure of transcribed statements of inmates and sheriffs
personnel provided to them through discovery. They also sought to prohibit anyone
4
involved in the case from making comments to the press. Id. Following a hearing,
the trial court entered an order prohibiting the state from disclosing any discovery
documents without in camera inspection to first determine whether the defendant's
constitutional rights would be prejudiced. The court also prohibited the parties
from making out of court statements related to the trial, the parties or the issues. Id.
After its in camera inspection, the court prohibited publication until the danger of
prejudice to the defendant no longer exists. Id.
Recognizing that any prior restraint bore a presumption against
constitutional validity1, the District Court noted that the issue required balancing
the rights of the respective parties: “[t]he right of the news media and the public to
know all that transpires in a criminal case ... must be carefully weighed against the
defendant's right to a fair trial, but the defendant's right to a fair trial should be
given paramount consideration. Id. (emphasis in original).
The cases cited by Petitioner are not dispositive of the issue before the court.
Some cases deal with prohibitions on the press attending and/or reporting what has
occurred at an open hearing. See Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976);
State ex rel. Miami Herald Pub. Co. v. McIntosh, 340 So.2d 904 (Fla. 1976); Times
Publ'g Co. v. State, 632 So.2d 1072 (Fla. 4th DCA 1992). Others merely identified
1
See Miami Herald Publishing Co. v. Morphonios, 467 So.2d 1026, 1028
(Fla. 3rd DCA 1985).
5
the individual involved in the case by name or face or involve civil proceedings:
Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977); Doe v. Doe, 567
So.2d 1002 (Fla. 4th DCA 1990); Jacksonville Television v. Fla. Dep't of Health
and Rehab. Servs., 659 So. 2d 316 (Fla. 1st DCA 1994); Gawker Media, LLC v.
Bollea, 129 So.3d 1196 (Fla. 2nd DCA 2014).
Petitioners reliance on Gawker is misplaced for purposes of the underlying
litigation. First, Gawker deals with the issuance of a temporary injunction. Id. at
1200. This case does not.
It should also be noted that the Gawker Court
recognized "where matters of purely private significance at
issue, First
Amendment protections are often less rigorous." Id. quoting Snyder v. Phelps, 131
S.Ct. 1207, 1215 (2011).
The instant case presents a unique case in which the voluminous contents of
the transcribed calls contain, for the most part, matters of purely private
significance along with some limited matters which touched upon matters of
constitutional and Sixth Amendment significance.
III. RELIEF SOUGHT.
Respondent would respectfully request this Court affirm the order of the
Circuit Court. In the alternative, if the Court should grant the petition, Respondent
would request that the Court do so without prejudice to the trial court conducting
further evidentiary proceedings into the means by which Mr. Smith's counsel
6
obtained the transcripts and the effect of their disclosure on Mr. Cobia's due
process protections and/or conduct an in camera review of the call transcripts to
narrow the calls which should be made confidential.
See Media General
Operations, Inc. v. State, 933 So.2d 1199, 1202 (Fla. 2nd DCA 2006); News-Press
Publ'g Co. v. State, 345 So.2d 865, 867 (Fla. 2nd DCA 1977); WFTV, Inc. v. Roe,
706 So.2d 132, 133 (Fla. 4th DC 1998).
At such a hearing, the trial court should address the necessity of continuing
to seal the transcript, the availability of less restrictive alternative and whether
continued sealing achieves the desired objections of all parties. See Tribune v.
Rudd, 415 So.2d 65, 66 (Fla. 1st DCA 1982).
Had the transcripts been filed pursuant to public records request, or a
demand for discovery and counsel notified when they were placed in the court file,
these determinations could have been made prior to this litigation.
Respectfully submitted,
VALERIE MASTERS
301 Clematis Street, Suite 3000
West Palm Beach, Florida 33401
Tel. (561) 659-9410
[email protected]
/S Valerie Masters
_____________________________
VALERIE MASTERS
Attorney for Respondent
Florida Bar No. 67008
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of Respondent’s Response has been
furnished by e-file to the Fourth District Court at [email protected]; to CELIA
TERENZIO, Assistant Attorney General 1515 N Flagler Drive, West Palm Beach,
Florida 33401 [email protected] and to ELIZABETH RAMSEY,
APD, OFFICE OF THE PUBLIC DEFENDER, 421 3RD STREET, WEST PALM
BEACH, FL 33401 [email protected], and to ANDREW SLATER, 401 NORTH
DIXIE HWY, WEST PALM BEACH, FLORIDA 33401 [email protected], and to
PBSO 3228 GUN CLUB ROAD, WEST PALM BEACH, FLORIDA 33406
[email protected], and Martin Reeder, Reeder and Reeder 350 S. Central Blvd,
Suite 200, Jupiter, Florida 33458 [email protected] this 8thth day of
day of December, 2015.
/S Valerie Masters
_______________________________
Valerie Masters
Of Counsel
8
CERTIFICATE OF FONT SIZE
I HEREBY CERTIFY the instant brief has been prepared with 14 point
Times New Roman type, in compliance with a R. App. P. 9.210(a)(2).
/S Valerie Masters
_______________________________
Valerie Masters
9