Podcast examines DNA evidence and wrongful convictions

This week, an Illinois man who spent nearly two decades in prison for sexual assault was released after DNA evidence exonerated him. A week earlier, DNA evidence freed a Florida man after more than 24 years in prison for crimes he did not commit. Earlier this month, the Supreme Court heard arguments in a case in which DNA evidence calls into question a conviction.

On our weekly legal news podcast Coast to Coast this week, we discuss the issues surrounding the use of DNA evidence. Our guests are Robert N. Feldman, a founder of the New England Innocence Project and an attorney in Boston, and Joshua Marquis, district attorney of Clatsop County, Oregon, and vice president of the National District Attorneys Association.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Article: Bloggers and the First Amendment

Are bloggers journalists? Should anonymous bloggers be unmasked? David L. Hudson Jr., research attorney with the First Amendment Center, explores these and other questions in his recently posted article on blogging and the press.

Journos' group favors one of two Wash. shield bills

As the Washington state legislature prepares to take up two competing bills that would protect journalists' sources, the local chapter of the Society of Professional Journalists has thrown its support behind one version of the bill, saying it would prefer no law at all to the other, Associated Press reports.

Both bills -- one filed by Republican Attorney General Rob McKenna and the other by Rep. Brendan Williams (D-Olympia) -- would generally protect reporters from revealing their sources. But the Williams bill would go farther, protecting unpublished notes, out-takes, tapes and photographs.

According to AP, the SPJ chapter would rather have no change than have McKenna's bill become law. "We would be perfectly happy to leave things as they are if you can't get the right bill," chapter treasurer Marcus Donner told AP.

Schools' secret session notes under wraps

In Schools' Secret Session Notes Under Wraps, Sentinel and Enterprise reporter Kyle Alspach writes about the failure of the Fitchburg, Mass., school committee to release executive session minutes. (I am among the sources interviewed for the story.)

Sarbanes-Oxley vs. the free press

In Reason, journalist and Competitive Enterprise Institute fellow John Berlau has written a thought-provoking piece, Sarbanes-Oxley vs. the Free Press, on how the law enacted to promote corporate accountability could be used by federal prosecutors to bring media executives to their knees.

Enacted in the wake of the Enron scandal, the law broadly prohibits corporations from obstructing federal investigations and altering, destroying or concealing documents. It would not be a stretch, Berlau argues, for a zealous prosecutor to extend the law to a media company protecting a source or a reporter's notes. In fact, he suggests, this may have been at least part of the impetus for Time Inc. to have turned over Matthew Cooper's notes to Plamegate prosecutor Patrick Fitzgerald.

Berlau concludes:

"Reporters and commentators in the establishment media need to rethink their cheerleading for Sarbanes-Oxley and so-called corporate reform. From their privileged perch, journalists frequently have advocated giving prosecutors and grand juries more power over their fellow citizens, especially those who work for big corporations. But prosecutors like Fitzgerald see a media company as just another corporation. Now that the media are under the government’s thumb, they may be a bit more skeptical in covering the crusade against corporate crime."

Calif. court affirms access to divorce records

A California appeals court last week determined a state law used by billionaire investor Ron Burkle to seal records in his divorce case is unconstitutional, ruling the First Amendment allows public access to divorce proceedings, The Associated Press reports.

A three-judge panel of the 2nd District Court of Appeal on Jan. 20 said that the state law, which was intended to improve privacy and confidentiality, placed an “undue burden” on the public’s ability to review court records in divorce cases.

Law Firm's Defamation Claim Trumps Internet Anonymity

A state judge in Pennsylvania has ruled that a law firm's defamation claim trumps any First Amendment right to speak anonymously on the Internet, The Legal Intelligencer reports.

In a case brought by the law firm Klehr Harrison Harvey Branzburg & Ellers, Common Pleas Judge Albert W. Sheppard Jr. ordered the operator of two now-defunct Web sites to turn over the identities of the anonymous authors of allegedly defamatory comments on the sites.

According to The Legal Intelligencer, the judge found that free speech "is not absolute" and that "defamatory and libelous speech enjoys no constitutional protection."

Here is a link to the full text of the opinion.

Sirius shuts down Stern stream

Two unauthorized Web sites that were rebroadcasting Howard Stern's Sirius satellite radio show via a Web audio stream shut down over the weekend. HearHoward.org posted a notice saying that it has shut down due to the cease and desist letter it received from Sirius. The domain name of the second site, HearHoward100.com, is now for sale on eBay. The Boston Herald reported Friday that Sirius considered the audio streams "online piracy." The Herald said an unidentified Boston man was an administrator of the site. A blogger named Brad Beckett also claimed to be behind the site.

Carrying the cross of the First Amendment

I just came across this article from Boston's Weekly Dig: When the First Amendment Ain't Enough, about campaigns in Massachusetts and in Congress to enact reporters' shield laws. Not sure when the article ran, because the Web page is not dated, but it offers a good overview of the issue here in Massachusetts. I am quoted with regard to my involvement in drafting the bill. But the best quote comes from Bill Ketter, Eagle-Tribune VP of news, who opposes a shield law:

"I think pleading with Congress or a legislature -- institutions we'’re supposed to cover and not ask favors of for quickie redress of this latest flurry of troublesome subpoenas --— is not the right approach. We'’ve got to continue to rely on that old rugged cross -- the First Amendment -- and carry it up a hill every once in a while. And if that means going to jail, then we need to be prepared to do so."

Harvard paper loses bid for police records

I finally had an opportunity today to read last week's disappointing decision from the Supreme Judicial Court of Massachusetts, The Harvard Crimson Inc. v. President and Fellows of Harvard College, denying a request by Harvard's student newspaper to obtain incident reports and other records from the Harvard University police department.

Under Massachusetts law, some Harvard police officers have been designated "special state police officers," an appointment made by the colonel of the State Police. Some officers also serve as deputy sheriffs for the county. In light of these designations, the Crimson argued that records of the Harvard police were public under the state's public records law.

Saying that it would construe strictly the scope of the public records law, the SJC rejected the Crimson's argument.

"The public records law, and its implementing regulations, are applicable to documents held by public entities, not private ones. Simply put, Harvard University is a private institution, a fact not challenged by the Crimson. ... It follows, therefore, that records in the custody of the HUPD, a department within Harvard University, are not "public records" that fall within the ambit of [the law]."

The decision is disappointing for its strict interpretation of the law. Other states, most notably Florida, have stated that they will liberally apply their open government laws. The SJC could easily have done so here. The court, itself, notes the somewhat anomalous fact that Massachusetts law expressly provides that Harvard's police logs are to be maintained as public records.

The Crimson may still find recourse in the state legislature. A bill has been filed that would make these records public. HB 3449 provides:

"All records, reports or other documentary materials or data made or received by such employees so appointed as special state police officers shall be public records kept and maintained in the custody of such college, university, other educational institution or hospital, except as otherwise provided by law."

In October, the bill was reported favorably by the legislature's Joint Committee on Public Safety and Homeland Security and is now with the House Committee on Ways and Means.

DA says e-mail falls under meetings law

In Massachusetts, the district attorney's office for Middlesex County has dismissed a complaint that a town conservation commission member violated the state's open meetings law by sending an e-mail to other board members complaining about the board's chair, the MetroWest Daily News reports today.

Assistant DA Loretta Lillios dismissed the complaint because the alleged violation was later remedied by making the e-mail part of the public record. In so doing, however, she cautioned that the law clearly applies to e-mails:

"As you know, this office has long held that private communications, including e-mail communications, that occur among a quorum of a governmental body, and that concern substantive matters within the jurisdiction of the governmental body, violate the Open Meeting Law. Like private conversations held in person or over the telephone, such e-mail conversations deprive the public of the opportunity to attend and monitor these e-mail ’meetings’ and are a serious violation of the Open Meeting Law."

Score one for the media

Not only did a Texas judge refuse a district attorney's request to force a Houston TV station to turn over unaired video footage, but in so doing he lamented the erosion of constitutional protections for the news media, the Houston Chronicle reports.

"Ever since the Constitution was issued, it's been chipped away at," District Judge Mark Kent Ellis said at Tuesday's hearing on television station KPRC's motion to quash a grand jury subpoena for the video. "I'm sympathetic with the needs of a press to be free."

Technology is testing open-government laws

Good article on an issue of increasing concern: State: Technology is testing open-government laws.

'Coast to Coast' commits legal prognostication

This week on the legal news podcast Coast to Coast, my cohost J. Craig Williams and I host a panel of esteemed pundits for Legal Predictions for 2006. Our guest prognosticators on the program are:

• Carolyn Elefant, a Washington, D.C., lawyer and author of the popular blog MyShingle.
• Stephen L. Kaplan, partner with the Los Angeles firm Hicks, Mims & Kaplan and author of an annual set of predictions about law, politics, economics and international affairs.
• Norman A. Pattis, a leading Connecticut criminal defense lawyer and coauthor of the blog Crime & Federalism.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Toobin on courts and journalists

In his New Yorker piece, Name That Source: Why Are the Courts Leaning on Journalists?, Jeffrey Toobin has one of the best overviews of the issue I've read. He steers clear of the debate over shield statutes, focusing instead on the courts' increasing propensity to subpoena reporters. If there is hope for reporters in the courts, Toobin suggests, it may lie in D.C. Circuit Judge David S. Tatel's recognition, in Judith Miller's appeal, that courts have broad latitude to develop an evidentiary privilege if not one based on the First Amendment. Still, concludes Toobin, "reporters have little reason to be optimistic."

Newspapers lose bid to open tribal meetings

A judge in Portland, Maine, has denied a bid by two Maine newspapers to gain access to meetings of the Passamaquoddy Tribal Council, AP reports. The judge ruled that the tribal council is not violating state law by holding closed-door negotiations with an Oklahoma company that hopes to build a liquefied natural gas terminal on tribal land.

Thomas E. Humphrey, chief justice of Maine's Superior Court, concluded that because the Pleasant Point reservation is acting as a corporation and not a municipality, the Tribal Council is not violating the Freedom of Access Act by keeping tribal members and the press out the meetings.

• Another report: Judge rules open meetings not required for LNG project.

First publication starts clock on defamation action

Media Law Prof Blog reports that the Michigan Supreme Court has ruled that the statute of limitations for defamation begins tolling when the statement was first published, not when it was republished.

NH court opens financial records in divorce cases

In an important ruling in favor of public access to court records, the Supreme Court of New Hampshire has struck down as unconstitutional a state law that restricted access to financial affidavits filed in divorce cases. The challenge to the law was brought by the Associated Press and other news organizations. A report on the ruling is available from The Reporters Committee for Freedom of the Press. The full text of the decision, The Associated Press v. The State of New Hampshire, is available here.

Judge shields deputies' online Identities

A Florida sheriff's attempt to subpoena the identities of deputies who posted anonymously on the law enforcement Web site LEOaffairs.com has been denied by a judge in Tampa, the Tampa Tribune reports. The sheriff's office filed a lawsuit in August alleging that several "John Doe" deputies were posting sexist and racist messages anonymously on the site. The judge said that she would not prevent the deputies from posting messages but she ordered the Web site owners to remove racist and sexist messages, which they did. The suit also sought to compel the site's owners to reveal the identities of the posters, but the judge ruled that the First Amendment protects the owners from having to reveal their names.

Minnesota political blogger sued for defamation

A Democratic public relations consultant plans to sue a Republican blogger for defamation in a case that could offer a key test of the First Amendment rights of bloggers, Associated Press reports. AP says that Blois Olson, president of PR firm New School Communications and a Democratic political commentator, plans to file suit against Michael Brodkorb, a Republican who publishes the blog Minnesota Democrats Exposed.

According to the AP report, Olson disputes a recent series of postings by Brodkorb about criticisms Olson made of the congressional campaign of fellow Democrat Coleen Rowley. Brodkorb wrote that an anonymous source told him that the Rowley campaign refused to hire New School Communications for consulting work, prompting Brodkorb to ask why Olson did not disclose that when he criticized Rowley in several news stories. Olson denies that New School tried to get consulting work with the Rowley campaign.

Officials who discuss litigation in private infringe public's rights

Open meeting laws often exempt from public view meetings of a legislative body held to discuss pending legislation. But, as Peter Scheer, executive director of the California First Amendment Coalition, points out in The Mercury News, resolving litigation often involves decisions that go well beyond whether to write a check. Scheer explains:

"This means that, under the protective veil of settling litigation, a city council can -- in the secrecy of a closed session -- make all manner of policy decisions that both tie the hands of future councils and commit to decisions that otherwise would require public input and debate. And because the most important and thorniest issues facing a community are commonly the subject of litigation, the public will be bypassed on the very issues in which its interest is greatest."

Two Missouri bills would shield reporters

The Columbia Tribune has the details.