939 F.2d 1499 (11th Cir. 1991), 90-3469, News-Journal Corp. v. Foxman

Docket Nº:90-3469.
Citation:939 F.2d 1499
Party Name:THE NEWS-JOURNAL CORPORATION, a Florida corporation, Plaintiff-Appellant, v. Honorable S. James FOXMAN, Circuit Judge, Seventh Judicial Circuit, State of Florida, Defendant-Appellee.
Case Date:August 30, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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939 F.2d 1499 (11th Cir. 1991)

THE NEWS-JOURNAL CORPORATION, a Florida corporation, Plaintiff-Appellant,


Honorable S. James FOXMAN, Circuit Judge, Seventh Judicial Circuit, State of Florida, Defendant-Appellee.

No. 90-3469.

United States Court of Appeals, Eleventh Circuit

August 30, 1991

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Jonathan D. Kaney, Jr., Cobb, Cole & Bell, Daytona Beach, Fla., for plaintiff-appellant.

Louis F. Hubener, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before JOHNSON and BIRCH, Circuit Judges, and MERHIGE [*], Senior District Judge.

BIRCH, Circuit Judge:

This case presents a newspaper's First Amendment challenge to a restrictive order entered by a state court regarding extrajudicial statements by trial participants prior to the commencement of a sensational criminal trial. Upon the newspaper's application for injunctive relief, the federal district court dismissed the action for lack of jurisdiction based on Younger abstention. On the particular facts of this case, we affirm the district court's conclusion, although we expand upon the reasoning.


The events precipitating this case involve a conspiracy to commit murder in Daytona Beach, Florida. On November 4, 1989, plaintiff-appellant The News-Journal Corporation (News-Journal), publisher of a daily newspaper of general circulation in Volusia and Flagler Counties, and other area newspapers reported the shooting of Bryan Chase by Konstantinos X. Fotopoulos, who was awakened by Chase's shooting his wife, Lisa Fotopoulos, in the head while the couple slept. Lisa Fotopoulos recovered from the head wound.

Subsequently, a Volusia County grand jury indicted Fotopoulos on charges that he had hired Chase to murder his wife, that he had murdered Chase, and that he had solicited Chase and others to commit five previous attempts on the life of Lisa Fotopoulos. Additionally, Fotopoulos, in concert with Deidre Hunt, was charged with the murder of Mark Kevin Ramsey by tying him to a tree and shooting him to death. The shooting of Ramsey was recorded by Fotopoulos with a home video camera on a videocassette, which was confiscated by the police.

As the state criminal cases progressed and more details of the murders became known, the media, including the area newspapers and television stations, actively reported facts and developments. 1 The News-Journal published a story based on a telephone interview with Hunt from the Volusia County jail. In the interview,

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Hunt incriminated herself and Fotopoulos, while she attempted to exculpate Yvonne Henderson, who had tried to kill Lisa Fotopoulos. A television station televised a similar interview with Hunt. The News-Journal also published a story based on an interview with Fotopoulos's mother, who proclaimed her son's innocence.

On the evening of December 20, 1989, two television stations broadcasting in the Daytona Beach area aired syndicated shows depicting reenactments of the two murders. The front-page News-Journal story for that date was entitled Murder-for-hire case causes media blitz. The article pictured all of the defendants and their respective attorneys, and advised readers of a television presentation that evening. 2

By December 22, 1989, the news media had reported that Fotopoulos had attempted to hire several individuals to kill his wife; that at least six unsuccessful attempts had been made to kill Lisa Fotopoulos before Chase entered the couple's bedroom on November 4, 1989; that persons who had been solicited for this murder had come forward and would testify; that Hunt had confessed to her participation in the plot to kill Lisa Fotopoulos and also had confessed that she and Fotopoulos had tied Kevin Ramsey to a tree and shot him to death while videotaping the scene; that Hunt had led police to the body of Kevin Ramsey; and that police had recovered the videotape showing the murder as well as other tangible evidence, including the Bryan Chase murder weapon. Additionally, a vivid account of the videotaped depiction of the murder of Kevin Ramsey was released as part of search warrant affidavits. The news media obtained their information from interviews with law enforcement officers, prosecution and defense counsel, defendant Hunt, Lisa Fotopoulos and potential trial witnesses.

Defendant-appellee Honorable S. James Foxman presided over the consolidated cases against Fotopoulos and the three indicted conspirators. Troubled by the extensive media coverage regarding the murder cases, Judge Foxman scheduled a hearing for December 22, 1989, to consider a proposed restrictive order in the case. Present at the hearing were the four defendants and their attorneys, counsel for the state, an attorney for the News-Journal and its primary reporter for the case, and an attorney representing an Orlando newspaper and television station. Asking for suggestions from the counsel, Judge Foxman explained the reasons for his concern regarding the media publicity:

Let me say a few things into the record; the reasons why we're here. The Court is concerned about the tremendous pretrial publicity this case has received. I'm specifically concerned that there's a likelihood that prejudicial news prior to trial will prevent a fair trial. There has been tremendous publicity, the newspaper articles locally, throughout central Florida. This Court had the misfortune to observe earlier this week at home on TV, on national TV news, a--an enactment on TV of two of the alleged murders in this case. The enactment referred to a third uncharged murder and other uncharged crimes. And I really can't ignore that. It's basically that airing on TV that has prompted the Court to call this hearing.

Basically, folks, it's my job to make sure that everybody here, the Defendants and the State, get a fair trial, and I'm concerned about the Court's ability to give them a fair trial in light of the publicity.

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I want to stress that I have not yet entered the order that's attached to the notice of hearing, and I may not enter it. What it is, it's an attempt on the Court's part to tone down the case, let's get on with the litigation in a fair manner.

I'm going to give the Defendants, the State, and both counsel [the two attorneys representing the media, including the News-Journal] opportunity to participate in this. You may present evidence, you may object, correct.

What I'd really like ... are for some suggestions as to how we may proceed from now on with the litigation in this case, so I'm open to suggestions, and if you have any I'm certainly going to listen to them.

I also want to stress one other thing. This order is a restrictive order, it's not technically a gag order. I'm not telling the media to do something or not to do something. It's aimed at the participants in the litigation of this cause.

App. A-7-8 (transcript of the hearing before Judge Foxman, Dec. 22, 1989) (emphasis added).

In turn, counsel for the four defendants explained to Judge Foxman their concerns relating to the defense of their individual clients because of the prejudicial publicity and endorsed the proposed restrictive order. 3 The state and law enforcement officers

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encouraged a broad order to ensure that there would be no interpretive questions concerning which individuals were included. 4 Although agreeing that there had been extensive pretrial publicity in the case, the attorney for the News-Journal protested that the proposed order, limiting reporting to court proceedings, would impede the efforts of the newspaper to inform the public adequately concerning the prosecution of the consolidated cases. 5

After listening to the positions of all of the counsel present, Judge Foxman concluded that "there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial," and that he was "going to enter a restrictive order." App. A-89-90. He invited the attorneys into his chambers to assist in finalizing his proposed restrictive order. The restrictive order entered by Judge Foxman on December 22, 1989, provides in pertinent part:

1. The media and the individual reporters have standing to contest any restrictive order.

2. This case has been the subject of great and unusual pre-trial publicity. Newspaper articles too numerous to count have been published concerning the case. A recent national and local telecast showed a reenactment of both alleged murders, alluded to a third uncharged murder, and mentioned other uncharged crimes. Interviews with several involved counsel, the police, and at least one defendant have been broadcast.

3. This case is also highly unusual--far from other murder cases. This Court is reluctant to articulate why it is so unusual because to do so would cause the same harm the Court is trying to avoid. Suffice it to say that this case has caused and will cause, great media attention. 6

4. It is the duty of this Court to ensure that all involved receive a fair trial. Unfortunately,

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the Court concludes there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.

5. The Court determines that a Restrictive Order is necessary. The authority for the Order is found in Sheppard vs. Maxwell, 384 US 333, 86 S.Ct. 1507, 16 L.Ed.2nd, 600 (1966); State Ex Rel. Miami Herald vs. McIntosh, 340 So.2d 904 (Fl.1977); and Florida Freedom Newspapers v. McCrary, 520 So.2d 32 (Fl.1988). The court is not aware of any less restrictive measures it could take at this time to ensure a fair trial.

Now, Therefore, it is ORDERED...

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