Baltimore Courts Restrict Access to Courtroom Audio After Podcast Airs Recordings From Keith Davis Jr. Trials

State law grants public access to courtroom audio, but broadcasting it is prohibited. Press freedom advocates say that’s a violation of the First Amendment.

BALTIMORE, MD - MAY 12:  People line up outside the Baltimore City Circuit Court before the start of the trial of Edward Nero, a Baltimore Police Officer who was involved in Freddie Gray's arrest, on May 12, 2016 in Baltimore, Maryland.The tiral will be the second trial related to the death of Freddie Gray who died while in police custody.  (Photo by Mark Makela/Getty Images)
People line up outside the Baltimore City Circuit Court on May 12, 2016, before the trial of a police officer involved in Freddie Gray’s arrest. Photo: Mark Makela/Getty Images

A Baltimore-based journalist sued the city’s court officials on Thursday over an abrupt policy change restricting public access to audio from court proceedings — in violation of a Maryland state rule requiring courts to make recordings available to members of the public upon written request and payment.

Justine Barron, an independent reporter who has investigated a series of high-profile cases involving the Baltimore Police Department, was denied access to court records last week, just two days after a podcast on the controversial prosecution of Keith Davis Jr. aired its first episode, including clips of legally obtained court audio from Davis’s many trials. Other reporters’ requests have since also been denied.

Under Maryland law, courts are required to grant the public access to audio recordings of court proceedings. But broadcasting those recordings is prohibited — a provision that journalists and press advocates say violates the First Amendment. Producers of “Serial” violated that prohibition in their widely acclaimed podcast re-investigating a two-decade-old murder case in Baltimore, as did producers of a subsequent HBO documentary about the same case. Each faced rebuke from court officials but no legal action. Then last month, journalist Amelia McDonell-Parry informed the chief administrative judge of Baltimore’s Circuit Court of her plans to violate the prohibition to broadcast audio from Davis’s trials, arguing that she had a “First Amendment right to use these lawfully acquired recordings” and that the proceedings were of “considerable public interest.”

Barron, who previously worked with McDonell-Parry on a different podcast investigating the 2015 death of Freddie Gray in police custody, had already paid for records relating to yet another case, but on the day she was supposed to pick them up from the court, she received an email denying her request. After insisting that the court provide her with a written explanation for the change in policy, she was given a one-line administrative memo ordering that “no copies of audio recordings maintained by the Office of the Court Reporter shall be made available to persons other than parties to the relevant proceeding or counsel to the relevant proceeding.” Court officials told Barron that members of the public were still permitted to review court recordings at the courthouse by appointment — something Barron says severely constrains the capacity of independent journalists to report on criminal proceedings.

The order — which the court never posted publicly — is illegal, Barron’s lawsuit claims. Attorneys with the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, which is representing Barron in her lawsuit and McDonell-Parry in her challenge of the broadcast prohibition, believe that the sudden denial of court records is related to reporters’ mounting challenges to state restrictions on their use, which they say is a violation of First Amendment protections. Since McDonell-Parry informed the court of her plans to broadcast court audio, at least two other Baltimore journalists and two local community organizations have declared their intentions to do so.

“Baltimore court officials are trying to replace one unlawful policy with another,” Nicolas Riley, a litigator at the institute, wrote in a statement to The Intercept. “They know that it would be unconstitutional to punish people for broadcasting publicly available recordings of court proceedings, so they’re now trying to restrict the public’s access to those recordings in the first place, which violates state law. It is disheartening that they are going to such lengths to undermine court transparency.”

A spokesperson for the Maryland Judiciary said the Administrative Office of the Courts would not comment on pending litigation.

Ruthless About Fighting Transparency

As The Intercept has previously reported, Baltimore police officers shot at Keith Davis Jr. 44 times in June 2015 after they mistook him for a robbery suspect. Davis survived the shooting but has since been caught in an endless legal ordeal. Prosecutors accused him of possessing a gun, which they later said was connected to an unsolved murder; Davis has maintained that the gun was planted by police. He has been tried for that murder three times already. Each time, prosecutors failed to convict him but pressed to retry him. His fourth trial is scheduled for July.

With each trial, new evidence has emerged raising serious questions about police testimony and prosecutors’ conduct in the case. And while Davis’s story was largely unknown at first, each trial has raised the profile of his case. Now McDonell-Parry’s podcast — part of the “Undisclosed” series, which investigates wrongful convictions — promises to attract nationwide scrutiny to a case that a local lawyer described to The Intercept as egregious “even by Baltimore standards.”

Court recordings from Davis’s trials — some of which The Intercept also obtained before the new policy restricting public access — include Davis’s harrowing account of being cornered in a garage and shot at dozens of times by police, as well as the testimony of his wife, who was on the phone with him at the time of the shooting. They also include testimony by police officers at the scene, who repeatedly contradicted themselves in court, as well as a damning statement by the main witness to the robbery, who told jurors, in reference to Davis, “to my recollection, that don’t look like him to me.”

For McDonell-Parry, broadcasting that audio was essential to “do justice to Keith’s story.” “I always believed that the Maryland rule against broadcasting audio and video from criminal proceedings served to protect police, prosecutors, and judges more than citizens,” she told The Intercept. “Every defendant has the right to a public trial, but rules like this one limit the public’s access.”

“To prevent the media from using that audio to supplement their reporting … greatly limits our ability to provide the public with a full and accurate accounting of the facts,” she added. “To me, there’s no better reason to violate the law than in the pursuit of truth and justice.”

After notifying the courts of her intention to violate the broadcasting prohibition, McDonell-Parry received a letter from court officials reiterating that she was breaking the law, but so far she has faced no legal consequences. Instead, the court seems to have taken action not just against her, but against all members of the public and media.

To McDonell-Parry and Barron, that’s emblematic of a justice system in the city — from the police department to prosecutors to the courts themselves — that’s both deeply corrupt and bent on skewing accountability.

“I love Baltimore, but Baltimore is also one of the most corrupt cities in this country, and that corruption has been exposed against the will of the most powerful and not by the institutions that are supposed to protect its citizens,” said McDonell-Parry, citing the botched response to the protests that followed Gray’s death, as well as a series of police scandals that culminated in the federal prosecution of nine officers with the Gun Trace Task Force, an elite unit accused of planting drugs and guns on citizens.

“What the criminal justice system in Baltimore has inflicted upon its citizens is appalling and disgusting, and the Maryland rule against broadcasting criminal proceedings limits the media’s ability to tell that story, to the benefit of the corrupt powers that be and to the public’s detriment.”

“My experience to date is that the criminal justice system in Baltimore is fairly ruthless about fighting transparency,” echoed Barron, who has also investigated the death of Sean Suiter, a Baltimore police officer who was found shot in the head a day before he was scheduled to testify as part of the Gun Trace Task Force inquiry.

“Now with this situation, we have the courts themselves deciding that we shouldn’t hear what’s going on in the court. The same judges that signed the court order making this decision are the same people that benefit from us not hearing what they say in court, how they act, what they allow.”

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