Case 2:08-cr-00125-DAK Document 412 Filed 11/24/10 Page 1 of 14

Michael Patrick O’Brien (USB #4894)

Ryan M. Harris (USB # 8192)
Shane J. Shumway (USB # 13357)
JONES WALDO HOLBROOK & MCDONOUGH PC
170 South Main Street, Suite 1500
Salt Lake City, Utah 84101
Telephone: (801) 521-3200
Attorneys for Media Intervenor The Salt Lake Tribune

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA,

MEMORANDUM IN SUPPORT OF
Plaintiff, SALT LAKE TRIBUNE’S MOTION FOR
ACCESS TO AND COPYING OF THE
vs. POLICE INTERROGATION VIDEO OF
DEFENDANT PLAYED AT TRIAL
BRIAN DAVID MITCHELL and WANDA
EILEEN BARZEE,
No. 2:08-CR-00125-DAK
Defendants.
_____________________________________ Judge Dale A. Kimball

THE SALT LAKE TRIBUNE,

Media Intervenor.

The Salt Lake Tribune (the “Tribune”), as a Media Intervenor, respectfully submits this

memorandum in support of its concurrently-filed Motion for Access to and Copying of the Police

Interrogation Video of Defendant Played at Trial in the above-captioned matter. In support of its

Motion, the Tribune states as follows:

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INTRODUCTION

By this Motion, the Tribune seeks a copy of the video of the police interrogation of

Defendant played at trial on November 15, 2010 (the “Video”). At this point, the Tribune is

informed and believes (based on an email received from the Court’s clerk) that the Court is

inclined to release only a transcript of the Video, rather than the Video itself, and is informed and

believes that the basis for the Court’s decision to release only a transcript is that the Court

believes this result is compelled by the United States Supreme Court’s opinion in Nixon v.

Warner Communications, 435 U.S. 589 (1978).

The Tribune has reviewed the applicable law and agrees that, under Nixon, the public

does not have a constitutional right of access to the Video. However, Nixon left unresolved the

issue of how courts must analyze the common-law right of access to trial exhibits, including

recordings played in court. Since Nixon, lower federal courts have grappled with this issue, and

have generally come out one of two different ways, with some circuits declaring that there is a

“strong presumption” in favor of the common-law right of access that can only be rebutted if

countervailing interests “heavily outweigh” the public’s interests in access. The Tenth Circuit

has recently joined the circuits that follow the more expansive “strong presumption” standard.

Therefore, there is a “strong presumption” that the Tribune has a common-law right of access to

a copy of the Video. In this case, at this stage of the proceedings, there are no countervailing

interests that heavily outweigh this strong presumption. Thus, for all of these reasons, and as

more fully discussed below, this Court should grant the Tribune’s motion and provide the

Tribune with a copy of the Video.

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ARGUMENT

THE PUBLIC HAS A COMMON-LAW RIGHT OF ACCESS

TO A COPY OF THE VIDEO

A. Legal Standards: The Distinction Between a Constitutional Right and Common-

Law Right, and the Scope of the Common-Law Right

While Nixon clearly holds that the public does not have a constitutional right of access to

copies of trial exhibits, that case left open the question of whether the public has a common-law

right of access to copies of trial exhibits. The Tribune’s motion, then, is not grounded in the

Constitution; rather, the Tribune’s motion is grounded in the common-law right of access.

The starting point in the legal analysis is the Nixon case. There, the U.S. Supreme Court

considered whether the public has a right to copy a tape recording played in court when the trial

court made a transcript of the recording available to the public. See Nixon, 435 U.S. at 594. The

Court held that the public’s constitutional right of access to the tape recording was satisfied by

making a transcript of the tape available to the public and by allowing the press to attend the

hearings. Id. at 609-10. However, with respect to the common law right, the Court stated that

“we need not undertake to delineate precisely the contours of the common-law right.” Although

the Court stated that a lower court should balance competing concerns “in light of the relevant

facts,” it found that because there were alternative means of public access to the recording in that

case (through the Presidential Recording Act), it “need not weigh the parties competing

arguments” regarding the scope of the common-law right of access. Id. at 605-06 & n.20. The

fact that the public had the ability to gain access to the tapes through the Presidential Recording

Act was dispositive of the common-law aspects of the Nixon case.

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Because the Court in Nixon did not articulate the contours of the common law right,

lower federal courts since Nixon have tried to take on that task, and have taken two general

approaches. The first approach takes a more expansive view of the common-law right of access,

and this approach has been followed by a majority of the circuits, including courts in the Tenth,

Second, Third, Seventh, Ninth, and D.C. Circuits.1 The courts taking this more expansive

approach apply a “strong presumption” in favor of access that can only be rebutted in

“extraordinary circumstances.” See, e.g., In re NBC, Inc., 635 F.2d 945, 952 (2d Cir. 1980).

Under this approach, any doubts must be resolved in favor of disclosure. See, e.g., U.S. v.

Berger, 990 F. Supp. 1054, 1057 (C.D. Ill. 1998). Additionally, the trial court must articulate

facts known to the court that warrant denial of access, and denial may not be based on

unsupported hypothesis or conjecture.

The second approach generally provides greater deference to the trial court’s access

decision. See, e.g., U.S. v. Webbe, 791 F.2d 103, 106 (8th Cir. 1986). This approach is followed

by courts in the Fifth and Eighth Circuits. As the Ninth Circuit has pointed out, this minority

view is different than the “strong presumption” approach applied in other circuits, because it

characterizes the public’s right of access as typically subordinate to a defendant’s competing fair

trial rights. See Valley Broadcasting v. U.S. Dist. Ct. of Nevada, 798 F.2d 1289 (9th Cir. 1986).

The minority approach generally assumes that the countervailing interest that must be balanced

against the public’s right of access is the defendant’s right to an impartial jury and a fair trial.

See Belo Broadcasting Corp. v. Clark, 654 F.2d 426, 431 (5th Cir. 1981) (applying minority

1
For cases discussing the different approaches taken by the circuit courts, see U.S. v. Graham,
257 F.3d 143, 148 (2d Cir. 2001); U.S. v. Berger, 990 F. Supp. 1054 (C.D. Ill. 1998); Valley
Broadcasting Co. v. U.S. Dist. Ct. of Nevada, 798 F.2d 1289, 1293 (9th Cir. 1986); U.S. v.
McDougal, 103 F.3d 651, 657 (8th Cir. 1996); U.S. v. Webbe, 791 F.2d 103, 106 (8th Cir. 1986);
U.S. v. Criden, 648 F.2d 814 (3rd Cir. 1981; Belo Broadcasting Corp. v. Clark, 654 f.2d 426,
431 (5th Cir. 1981).

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approach to review district court decision that was concerned with the fair trial rights of the “yet-

to-be tried defendant”).

Recently, the Tenth Circuit adopted the majority view and the “strong presumption” in

favor of access, stating that:

Courts have long recognized a common-law right of access to judicial records.

This right however, is not absolute. The presumption of access can be rebutted if
countervailing interests heavily outweigh the public interests in access. The party
seeking to overcome the presumption bears the burden of showing some
significant interest that outweighs the presumption.

See Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (emphasis added). Ultimately, the

Tenth Circuit held that the privacy concerns articulated in that case were not “sufficiently critical

to outweigh the strong presumption in favor of public access to judicial records.” Id.

Unlike other courts, the Tenth Circuit has not yet had opportunity to analyze how this

“strong presumption” applies to a request to copy a video played at trial. Other courts, however,

have had that opportunity, and those cases are instructive and are discussed below.

B. Under the Governing Legal Standard, the Public Has a Common-Law Right to
Access and Copy the Video

As this Court is aware, Media Intervenors (including the Tribune) have requested a copy

of the Video once before in this case, in conjunction with the competency hearing held earlier

this year, and the Court declined to recognize a public right of access to the Video at that time.

See U.S. v. Mitchell, 2010 WL 899978 (D. Utah Mar. 8, 2010). In that decision, the Court

identified three “countervailing factors favoring nondisclosure” at that time. Id. at *4. These

factors included (i) prejudicial pretrial publicity, (ii) the danger of impairing law enforcement or

judicial efficiency, and (iii) the privacy interests of third parties. Id. Of these three factors, the

Court “recognized that the risk of prejudice to a fair trial was the most compelling reason to deny

the right to copy audio and video tape exhibits for subsequent broadcast.” Id. Both the

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Government and the Defendant also recognized this in their arguments. Id. at *1. The

Government’s arguments focused on “substantial problems in the pretrial context.” Id. The

Defendant’s arguments focused on the Defendant’s ability to obtain an impartial jury. Id. In

discussing the second factor of judicial efficiency, the Court was concerned with potential

pretrial publicity and potential motions based on change of venue or a request for continuance.

In discussing the third factor, the Court noted that one of the videos included an interview of Ms.

Smart which contained sensitive issues regarding traumatic events.

These three factors that guided and informed the Court’s decision in March 2010 are, by

virtue of the passing of time, no longer present. With respect to the first and second factors, the

case is no longer in the pretrial phase, and the court must no longer worry about pretrial

publicity, impaneling an impartial jury, or pretrial motions. With respect to the third concern,

the Tribune does not by this motion seek access to the video of Ms. Smart that the Court stated

creates a privacy interest. Thus, none of the concerns identified by the parties and the Court in

March 2010 are applicable now.

Although the Tribune believes that the factors already considered by the Court in its

March 2010 decision would be the most significant countervailing factors a court might consider

on this issue, courts in other jurisdictions have identified other issues, and none of these other

issues are present here either. For instance, in In re Providence Journal Co., 293 F.3d 1 (1st Cir.

2002), the court upheld the trial court’s decision to limit access, because the recordings used at

trial were not “in a form that readily permits sight and sound reproduction.” Id. at 17. That case

involved seventy-one different videos that had to be filtered through a special software program

before being played through a laptop computer that connected to the district court’s “state-of-the-

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art” audiovisual system. Id. at 8. The process of copying the videos was apparently quite

difficult. In this case, the Tribune’s request involves one easily reproducible video.

Another concern was given in State v. Miller, 1993 WL 216705 (Md. Cir. Ct. Apr. 15,

1993). There the “most compelling” factor warranting denial was that other suspects had not yet

been tried. Here, there are not other suspects waiting to be tried. Even the court in Miller

recognized that “at the point fair trial concerns [of third parties] no longer exist, the tape should

be released.” Id. at *5.

Other general concerns were discussed in Valley Broadcasting, where the court’s

concerns included “publication of scandalous, libelous, pornographic, or trade secret materials,”

“administrative inconvenience,” and the “risk that jurors would disobey [the court’s]

instructions.” See Valley Broadcasting, 798 F.2d at 1294-95. The Ninth Circuit held that any

concerns given by the trial court did not overcome the “strong presumption” applied by a

majority of circuits in favor of access to the video. Id. at 1296.

Finally, a Maryland court analyzed a potential reason to deny access in State v. WBAL-

TV, 975 A.2d 909 (Md. Ct. App. 2009). In that case, the defendant argued that there was a

chance that “future proceedings” would occur such as a retrial or an appeal. Noting the opposing

party must “demonstrate a special and compelling reason” to deny access the court rejected the

defendant’s argument, and noted that such an argument, “taken to its logical conclusion, could

result in the tapes never being released [because] any conviction is always subject to the

possibility of successful collateral attack.” Id. at 925 (citing In re NBC, 653 F.2d 609 (D.C. Cir.

1981)). Even this Court, in its March 2010 decision, recognized that the chance of an appeal or a

retrial is “of a hypothetical nature.” Mitchell, 2010 WL 890078, at *4.

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Thus, the various concerns that are generally articulated against access are simply not

present here. As this Court pointed out, the most compelling concern is pre-trial publicity and

the potential impingement on Defendant’s fair trial rights. With a jury seated, and with that jury

already having seen the Video, those concerns have passed. If any concern is still present, it is

based on “hypothesis or conjecture” and would not be sufficient to overcome the “strong

presumption” in favor of access in the Tenth Circuit.

On the other hand, there are significant benefits weighing in favor of granting access to

the Video at this time. The courts have discussed various factors that weigh in favor of access,

and those factors directly apply here. The most important factors are whether the tape was used

at trial, whether the recording involves conduct of government officials, and whether the jury

will rely on the recording to determine an important issue.

The fact that a videotape is actually used at trial is a factor that weighs heavily in favor of

access. As stated by the Second Circuit, “there [is] a ‘strong presumption’ in favor of allowing

the public to inspect and copy ‘any item entered into evidence at a public session of a trial.” See

U.S. v. Graham, 257 F.3d 143, 149 (2d Cir. 2001). As a result of this strong presumption,

“[o]nce the evidence has become known to the members of the public, including representatives

of the press, through their attendance at a public session of court, it would take the most

extraordinary circumstances to justify restrictions on the opportunity of those not physically in

attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits

sight and sound reproduction.” Id. (citing In re NBC, 635 F.2d 945 (2d Cir. 1980)). Here, the

tape was played at trial, not just in court, and it is readily reproducible.

The video also involves conduct of government officials—the interrogators on the tape

are law enforcement officers, one of whom is an FBI agent and one of whom is a Salt Lake City

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police officer. The fact that the two interrogators are government officials is a factor that weighs

heavily in favor of access. In a case cited with approval by this Court in its decision in March,

the court stated that

the presumption of access is especially strong in a case like this where evidence
shows the actions of public officials, both the defendants and law enforcement
personnel. Though the transcripts of the videotapes have already provided the
public with an opportunity to know what words were spoken, there remains a
legitimate and important interest in affording members of the public their own
opportunity to see and hear evidence that records activities of a Member of
Congress and local elected officials, as well as agents of the Federal Bureau of
Investigation.

In re NBC Universal, Inc., 426 F.Supp.2d 49, 55 (E.D.N.Y. 2006); see also U.S. v. Sampson, 297

F.Supp.2d 342, 345 (D. Mass. 2003) (stating that “the appropriateness of making court files

accessible is accentuated in cases where the government is a party: in such circumstances, the

public’s right to know what the executive branch is about coalesces with the concomitant right of

the citizenry to appraise the judicial branch”); U.S. v. Beckham, 789 F.2d 401, 413 (6th Cir.

1986) (“when the conduct of public officials is at issue, the public’s interest in the operation of

government adds weight in the balance toward allowing permission to copy judicial records”).

Finally, the fact that the tape will be relied on by the jury to determine an important

issue—the guilt and/or sanity of the defendant—weighs heavily in favor of access. See In re

NBC, Inc., 653 F.2d 609, 614 (D.C. Cir. 1981) (stating that where the “tapes were introduced for

the purpose of proving the guilt of the defendants, and were obviously relied upon by the jury in

finding the defendants guilty,” the court should provide access).

These factors indicate that, “[w]hile the common law right is not constitutional in

dimension, it supports and furthers many of the same interests which underlie those freedoms

protected by the Constitution.” Graham, 257 F.3d at 149. Indeed “there is no doubt that the

public would learn something more about this case by seeing a videotape broadcast into their

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homes as opposed to listening to descriptions of it from news reporters.” See Miller, 1993 WL

216705, at *3. Doing so would allow the public to understand the trial process, monitor

government officials, and understand the issues presented to the jury.

C. The Public’s Right of Access to the Video Is Not Satisfied by Providing a

Transcript of the Video

The Tribune understands that the Court’s current position is that providing the public

with access to a transcript of the Video (rather than the Video itself) is sufficient. Yet, the

common-law right of access is the right to inspect and copy court documents, including video

and audio recordings played at trial. See In re NBC, Inc., 653 F.2d 609, 612 (D.C. Cir. 1981);

see also In re Providence Journal, 293 F.3d at 16 (stating that “videotapes and audiotapes on

which a court relies” are within the reach of the common-law right to copy and inspect). This

right is not satisfied by providing a mere transcript of the recording. See U.S. v. Sampson, 297 F.

Supp. 2d 342, 346 (D. Mass. 2003) (granting access to recording of defendant’s confession used

as evidence, and stating that “while the transcripts that have been released provide the public

with a great deal of information, they are not a complete substitute for what the jury has heard”);

see also WBAL-TV, 975 A.2d at 926 (granting access to video recording, and stating that “a

transcript ordinarily reflects only the words spoken, and not how they were said or the physical

actions and reactions of the participants present” and that “a transcript of the DVD and audiotape

is not a copy”).

In its March 2010 decision, the Court cited four cases for the proposition that providing a

transcript of a recording is a factor weighing in favor of denying access to a copy of the

recording. Mitchell, 2010 WL 890078, at *8 (citing U.S. v. McDougal, 103 F.3d 651 (8th Cir.

1996); U.S. v. Webbe, 791 F.2d 103 (8th Cir. 1986); In re NBC Universal, Inc., 426 F. Supp. 2d

49 (E.D.N.Y. 2006); U.S. v. Beckham, 789 F.2d 401 (6th Cir. 1986)). These cases have an

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important point in common: they either rejected the “strong presumption” standard that is now

used in the Tenth Circuit, or they recognized that they were applying a different standard.

In McDougal and Webbe, the courts expressly declined to apply the “strong presumption”

standard in favor of access to copies of recordings. See McDougal, 103 F.3d at 657; Webbe, 791

F.2d at 106. In NBC, the court used a tiered system that granted a “strong presumption of

access” to recordings introduced at trial and a “middling presumption” for recordings that were

not used at trial and therefore did not serve as the basis for a substantive determination. In re

NBC, 426 F. Supp. 2d at 53. The video recording at issue in NBC concerned the defendant’s

attorney and whether that attorney was qualified. Id. at 55. Because the recording at issue at

NBC was not used to make a substantive determination at the defendant’s trial, the court applied

the “middling presumption” of access to the video in question. Id. However, even applying that

presumption, the court recognized “once the trial is over, there is no reason why the balance

should not be swiftly reconsidered.” Id. at 58. Finally, in Beckham, the majority applied a more

deferential standard, but the dissent pointed out that if a “strong presumption” standard was used

such as in the Tenth Circuit, the case would come out differently. Beckham, 789 F.2d at 419

(Conite, J., dissenting).

Conversely, cases that do apply the “strong presumption” in favor of access hold that the

common-law right is not fulfilled by simply providing a transcript of the recording. For

example, in In re NBC, videotapes of public officials seen taking bribes were played for the court

and entered into evidence. In re NBC, 635 F.2d at 947-49. At the request of the news media, the

trial court provided copies of not only the transcripts but also provided the media with copies of

the tapes themselves. Id. at 948. One of the defendants sought an emergency appeal to the

Second Circuit, which affirmed the trial court’s decision. In so doing, the Second Circuit

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recognized the “strong presumption” in favor of access, and held that “when physical evidence is

in a form that permits inspection and copying without any significant risk of impairing the

integrity of the evidence or interfering with the orderly conduct of the trial, only the most

compelling circumstances should prevent contemporaneous public access to it.” Id. at 952.

Additionally, in Berger, the court considered a request for a copy of a videotaped

deposition of the state governor played in a criminal trial. Berger, 990 F. Supp. at 1054. In that

case, “there was no question that a written transcript of the Governor’s deposition would be

made available to the public.” Id. at 1057. The court held that a transcript was not sufficient

under the “strong presumption” of access that governed the case, and that a copy of the video

must be provided. Id. at 1057-58.

Finally, in Sampson, the court was presented with a situation procedurally identical to the

one presented here. In that case, the prosecution played for the jury the defendant’s videotaped

confession. Sampson, 297 F. Supp. 2d at 343. The court automatically provided transcripts of

all proceedings, including a transcript of the confession played for the jury, to the public. Id.

Unsatisfied with just a transcript, certain members of the news media made a formal request for

actual copies of the recordings, and the court granted the request. Id. at 347-48. In so doing, the

court noted the strong presumption in favor of access, and stated that “only the most compelling

reasons can justify non-disclosure of judicial records that come within the scope of the common-

law right of access.” Id. at 354. Based on this, the court found that transcripts were not enough,

and the public must be provided a copy of the videotapes themselves. Id. at 346.

In summary, courts applying the “strong presumption” standard applied in this Circuit

have uniformly held that the public’s common law right of access is simply not satisfied by

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providing a transcript of recordings or tapes played in court. The public has a “strong

presumption” of access not just to the transcript but to a copy of the Video itself.

CONCLUSION

For all of the foregoing reasons, the Tribune’s motion should be granted, and the public

should be provided immediate access to a copy of the Video rather than just a transcript. Under

the common law, as interpreted by the Tenth Circuit in Mann, there is a “strong presumption” in

favor of access, and this presumption can be overcome only in extraordinary circumstances

where the presumption is “heavily outweighed” by strong countervailing interests. In March

2010, when this Court refused to allow access to the Video after the competency hearings, the

Court determined that there were compelling countervailing concerns, including the potential to

taint the jury pool. However, those concerns are no longer present, and certainly do not “heavily

outweigh” the strong presumption in favor of the public’s right of access. In fact, and in

contrast, significant factors in favor of access are present here, including that the Video was

played for the jury, the Video involves the conduct of government officials, and the jury is likely

to use the Video in deciding the ultimate issues in this case. Under these circumstances, the

public has a common-law right to access and copy the Video.

RESPECTFULLY SUBMITTED this _____ day of November, 2010.

JONES WALDO HOLBROOK & MCDONOUGH PC

/s/ Michael Patrick O’Brien

Michael Patrick O’Brien
Ryan M. Harris
Shane J. Shumway
Attorneys for Media Intervenor The Salt Lake Tribune

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the ___ day of November, 2010, a true and correct copy of

the foregoing MEMORANDUM IN SUPPORT OF THE SALT LAKE TRIBUNE’S

MOTION FOR ACCESS TO THE POLICE INTERROGATION VIDEO OF

DEFENDANT PLAYED AT TRIAL was filed and served via electronic filing on the

following:

Steven B. Killpack
Robert L. Steele
Parker Douglas
UTAH FEDERAL DEFENDER OFFICE
46 West Broadway, Suite 100
Salt Lake City, Utah 84101

Richard N.W. Lambert

Dave Backman
Diana Hagen
UNITED STATES ATTORNEY’S OFFICE
185 South State Street, Suite 300
Salt Lake City, Utah 84111

/s/Michael Patrick O’Brien____________________

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