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Attorney’s office objects to expanded media coverage of trial

Motion blocks effort to collect audio recordings, take photographs during attempted murder trial

Published: Friday, Aug. 16, 2013 11:30 a.m. CDT • Updated: Friday, Aug. 16, 2013 11:31 a.m. CDT

Assistant Jasper County Attorney Scott Nicholson filed a motion Tuesday in District Court objecting to a Daily News request for expanded media coverage in next week’s attempted murder trial of a Newton woman.

Nicholson’s motion will be the subject of one of two hearings to be held Monday. It included a brief statement by Eric James, who will be a prosecution witness in the attempted murder trial of Jane Marie Shine, 53, who is accused of shooting James multiple times at the home he shared with Shine’s daughter in July of last year.

In his statement, James objected to having his photograph appear “on the front page” of the Daily News. He said expanded media coverage would “complicate” the trial.

Expanded media coverage allows journalists to use audio recording equipment, such as digital audio recorders frequently used in most interviews, in the courtroom. Without an approved EMC request, journalists in the courtroom must work off handwritten notes.

EMC also allows for a limited number of still photographers and videographers in the courtroom. In this particular case, the blanket EMC request covers up to two still cameras, two video cameras and two audio recording devices.

In most cases with an approved EMC request, media outlets will pool their resources to limit the number of cameras and recording devices in use.

All such requests in Jasper County District Court must be submitted to Region 8 Media Coordinator Amanda Lewis of KCCI-TV in Des Moines. The Daily News made its EMC request to Lewis on June 12, along with similar requests for several other pending cases.

However, due to an oversight on Lewis’ part, those requests were not forwarded to the respective presiding judges until this week. She included an explanation of these facts as an addendum to the EMC request, which District Court Judge Gregory A. Hulse received Monday.

Nicholson’s objection made no mention of the timeliness of the request.

According to Nicholson, the motion was discussed in Hulse’s chambers Tuesday morning with representatives of both parties present. At that time, Nicholson asked the Daily News by telephone to clarify its EMC request. He filed his objection Tuesday afternoon.

“[I] contacted the alleged victim (Eric James) in this criminal case by telephone on or about August 13, 2013,” Nicholson wrote in his motion. “During this phone contact, [I] explained to [James] that there was a request for expanded media coverage during the upcoming jury trial (now scheduled for August 21, 2013).”

“After a full explanation of the request, Mr. James indicated to the undersigned that he objects to any expanded media coverage and has signed a written objection pursuant to Iowa Judicial Administration Rule 25.3(3),” he added. “Because the alleged victim, who is a witness that will be called by the State of Iowa, objects to any expanded media coverage, it is the State of Iowa’s position that the Request for Expanded Media coverage be denied.”

Lewis and the Iowa Freedom of Information Council filed a resistance motion and brief Thursday morning. The brief made two points in support of the Daily News’ EMC request.

First, the brief noted that Iowa Judicial Administration Rule 25 presumes EMC is a right that can be denied only when “evidence of constitutional proportions” is present in the record to demonstrate camera and microphone coverage denies either party a fair trial. The brief notes the criteria by which “constitutional proportions” is defined:

• Broadcast coverage of the case had an adverse impact on the trial participants sufficient to constitute a denial of due process; or

• The media’s coverage of the case compromised the ability of the participating jury that heard the case to adjudicate it fairly.

“Further ... the appropriate method for such a challenge is not by denial of expanded media coverage,” the brief states, quoting from the Iowa Supreme Court ruling in State of Iowa v. Webb. “Rather, camera and microphone coverage should be permitted. ‘To establish prejudice, a defendant can request a post-trial evidentiary hearing to show adverse impact or injury.’”

In that case, the defendant produced 67 new articles concerning events preceding his trial. The Iowa Supreme Court rejected his claims and held prejudice will not be presumed “from the mere publication of news stories.”

“The EMC Rules start with the presumption that Iowa proceedings shall be covered by cameras and microphones,” the brief stated. “Precedent shows that such coverage is neither inherently unfair or prejudicial and should be permitted in the first instance.”

Second, objections to coverage of certain witnesses and proceedings should be measured carefully and narrowly under Iowa Judicial Administration Rules and supported by good cause. “Fear of publicity is not good cause,” the brief stated.

Victims and witnesses in cases in which sexual abuse is an included offense, or an essential element, must consent to EMC before a request is approved under Iowa Judicial Administration Rule 25.2(3). Any other witness may object to EMC, but those objections can only be sustained “if supported by good cause.”

“Good cause is established by evidence, not speculation, ‘that coverage will have a substantial effect upon the objector which would be qualitatively different from the effect on members of the public in general and that such effect will be qualitatively different from coverage by other types of media,’” the brief states. “A qualitative difference must relate to the presence of news cameras and news microphones in the courtroom. The objector must demonstrate that he or she will be adversely affected by those items alone in a way different from their effect on the general public.”

In Des Moines Register and Tribune Co. v. Hildreth, the Iowa Supreme Court noted the sacrifices expected of a witness:

“(M)ay be of his privacy, his knowledge which he would preferably keep to himself because of the disagreeable consequences of disclosure. This inconvenience which he may suffer, in consequence of his testimony, by way of enmity or disgrace or ridicule or other disfavoring action of fellow members of the community, is also a contribution which he makes in payment of his duties to society in its function of executing justice.”

The brief also noted the identity of all witnesses in a trial are a matter of public record, and the trial process itself is open to the general public, as well as the news media. As a result, “the newsworthy testimony of witnesses will be publicly reported by print, radio and television journalists who are assigned to cover the trial.

“Any witness objecting to Expanded Media Coverage of his or her testimony must make a substantial showing in order to justify exclusion from news camera and microphone coverage,” the brief stated. “Proof of good cause is required, and publicity or a generalized fear of testifying is not good cause.”

The presence or lack of an approved EMC request would not prohibit any news organization from shooting video or still photographs of James — or any other participant in the trial — as he entered or exited the Jasper County Courthouse.

The Iowa Freedom of Information Council brief concluded with a request that Hulse deny all objections to EMC to permit coverage of all witnesses called upon to testify in the trial “in accordance with Iowa Court Rules.” It also stated:

“Expanded Media Coverage of the proceedings in this case can be denied only if evidence is the record ‘of constitutional proportions’ demonstrates the parties would not receive fair trial due to the presence of news camera and microphones in the courtroom. Objections to coverage by witnesses, except those falling into a limited, defined class, can be sustained only upon evidence of good cause. Good cause can be shown only by evidence that Expanded Media Coverage would have a materially adverse effect on the witness and that effect is quantitatively different that the effect Expanded Media Coverage would have on the general public and qualitatively different from the effects of other forms of media coverage, such as newspapers or sketch artists.

“At issue only is the presence of news cameras and microphones under specific and limited rules of the Supreme Court of Iowa aimed at protecting the rights of all parties, witnesses and the press and at promoting access to and accountability of the judicial system. The proceedings themselves and all witness testimony will be open to the public and the news media under the state and federal constitutions ... Granting expanded media coverage here will be consistent with the rules and decisions of the Iowa Supreme Court, and the rights of the parties can be protected by application of Iowa Court Rules Chapter 25 and, if necessary, post-trial hearing.”

Lewis and the Iowa Freedom of Information Council requested a hearing on Nicholson’s objection. Hulse set the hearing for Monday, immediately following another hearing on a motion in limine filed by Nicholson to prevent Shine’s defense attorney, Steve Addington, from asking questions related to “past bad deeds” committed by James. The hearing on the motion in limine is scheduled to begin at 10 a.m.

Daily News Editor Bob Eschliman may be contacted at (641) 792-3121, ext. 423, or at beschliman@newtondailynews.com.

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