Judgment by Platitudes

My friend Len Niehoff:

who is not as scary as he looks (and is a great guy, despite his affiliation with the University of Michigan), gave me the heads up on this recent ruling.   

A New York trial judge issued an order denying access to a videotaped confession given by accused killer Pedro Hernandez. The video was introduced as evidence in a pre-trial hearing. And since pre-trial proceedings in criminal proceedings are supposed to be open to the public, it seems logical that evidence submitted in that proceeding should be publicly available as well. 

But the judge doesn’t see it that way. In his view, “the recordings will become permanent fixtures on countless websites.” This will make them “available for consumption by anyone with access to a computer, mobile phone, or other device, at any time, day or night.”  And, “[t]his . . .  would almost certainly be fatal to the defendant’s chances or receiving a fair trial.”

Well, maybe. But the thing is, the standard for determining whether to release public information isn’t an “almost certain” standard. And it’s not supposed to be based on a judge’s gut feel. The public is entitled to the information unless the party resisting production can establish by clear and convincing evidence that the release will prejudice the defendant’s right to a fair trial, and that there is no less restrictive means to prevent the prejudice. The mere fact of pretrial publicity, even pervasive and adverse publicity does not mean the defendant can’t get a fair trial.

It looks to like Judge Wiley concluded, without any evidence, that the confession would light up the Internet, and further concluded, likely without any evidence, that the publicity would make a fair trial impossible. I suspect he didn’t spend a lot of time thinking about whether careful voire dire or a change in venue would alleviate the “problem.” 

Unfortunately, it looks like the Judge did what many judges do in this circumstance – assert the platitude about the defendant’s right to a fair trial and call it a day. Too bad.  The public deserves better.