United States v. Mitchell, No. 2:08CR125DAK, 2010 WL 890078 (D. Utah Mar. 8, 2010)

Media outlets sought physical copies of video clips shown at defendant’s public competency hearing. The court considered the media’s request under both the First Amendment and common law standards governing the press and public’s right of access to court documents. After noting that the press and the public already had an opportunity to view the video clips in open court proceedings and that the government proposed allowing similar post-hearing access, the court concluded “that the First Amendment is not implicated by the degree of access allowed.” When considering whether the media had a common law right to obtain physical copies of the videos, the court noted that the common law right of access is not absolute, but must be weighed against a number of factors, including: (1) prejudicial pretrial publicity; (2) judicial efficiency; (3) the victim’s privacy interests; and (4) the degree of access already accorded to the press and public. With respect to the question of pretrial publicity, the court concluded that “the release of videotapes for broadcasting, and potential re-broadcasting by less reputable outlets, presents an unacceptable risk to the court’s ability to impanel an impartial jury and to ensure that the ultimate verdict is based solely on the evidence presented in court.” It also found that allowing the media physical access to the videos “could result in potential delays, such as a request to change the trial’s venue or a request for a continuance to allow for any resulting publicity to subside,” and that such delays were similarly unacceptable. The court next considered the implications of the media’s requests on the victim’s privacy interests and her right, under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, to have these interests respected. As the court stated, the victim’s right, under the CVRA, “to be treated with respect for her dignity and privacy would be ill-served by the release and subsequent broadcast of videotapes that detail her sexual abuse.” After further finding that, “[i]n a case involving allegations of the sexual abuse of a minor, … there is a risk that broadcast and potentially re-broadcasts of the videos could essentially amount to revictimization,” the court concluded that the victim’s privacy rights and interests outweighed the media’s presumptive right of access to obtain copies of the videotapes. Finally, the court found that the press and public’s substantial access to the information contained on the videotapes, which were played in open court, weighed against granting the media’s request. Based on these considerations, the court held that the media did not have a right to obtain physical copies of the videotapes, but that some form of access was appropriate under the circumstances of the case. Agreeing with the government’s proposal to allow interested members of the media or public to view the videos at the courthouse, the court concluded that this approach would “best serve the interests of the public, the victim, and the parties.”