The Denver Post
Secrecy order defended
Saturday, July 03, 2004 -
Transcripts from a closed hearing in the Kobe Bryant sexual-assault case that mistakenly were sent to seven media outlets were obtained "unlawfully" and should be kept secret, according to motions filed Friday by the district attorney and state attorney general.
A court reporter inadvertently sent the 206 pages of transcripts by e-mail on June 24 to seven media organizations, including The Denver Post. Within a few hours, District Judge Terry Ruckriegle issued an order prohibiting the release of their contents, which stem from closed-door hearings dealing with the accuser's sexual history. "The unintentional distribution of the transcripts from that hearing does nothing to change the fact that the (media) at no point had legal access to the proceedings and therefore were unable to report on them," wrote Matthew Grove, an assistant attorney general. The Colorado Attorney General's Office is representing Ruckriegle on this issue. Attorneys for the media have petitioned the state Supreme Court to overturn the order, contending that it constitutes "prior restraint," an infringement on the First Amendment right to a free press. Grove and District Attorney Mark Hurlbert argued in filings Friday that even though the recipients did nothing wrong, the transcripts were not obtained lawfully because they were not supposed to have been released. "Under these circumstances," Hurlbert wrote, "the receipt of these transcripts was not 'lawful' within the meaning of First Amendment law, and the court properly ordered their destruction." In an affidavit attached to the motions, court reporter Michelle Goodbee indicated that she mistakenly sent the transcripts to the media listed in an e-mail group she named "transcript notices," rather than to one for the attorneys in the case she labeled "court transcripts." The hearings, held June 21 and 22, included testimony that dealt with the 20-year- old accuser's sexual history - evidence typically kept secret under the state "rape-shield" law that the defense wants to convince Ruckriegle is relevant to the basketball star's criminal case. "Proceedings under the rape-shield law may well contain information that is ultimately deemed irrelevant and inadmissible at trial. The release of such material could be damaging to reputation and to privacy," Hurlbert wrote. Both offices argued that because of the intense media attention on the Bryant case, publication of the transcripts could taint the jury pool and infringe on the defendant's right to a fair trial. Attorneys for the media cited the landmark U.S. Supreme Court case over the release of the Vietnam War-era Pentagon Papers that established prior restraint as unconstitutional, except in cases of grave national security. Grove conceded that the media have a right to publish material obtained lawfully, "even in situations where a ... constitutional right to a fair trial is implicated," but argued that the release in this situation is unlawful because the hearings were closed and the release was not intentional. "While it is true that the (media's) First Amendment freedoms are extraordinarily powerful, they must not be permitted to overcome these most fundamental of personal rights," Grove wrote. Staff writer Steve Lipsher can be reached at 970-513-9495 or slipsher@denverpost.com .
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