IN RE COURT ORDER DATED OCTOBER 22, 2003

• Decision Date: 19 July 2005
• Docket Number: No. 2003-614-M.P., No. 2003-613-M.P.
• Citation: 886 A.2d 342
• Parties: In re Court Order Dated October 22, 2003.
• Court: Rhode Island Supreme Court

886 A.2d 342

In re Court Order Dated October 22, 2003.

Nos. 2003-613-M.P., 2003-614-M.P.

Supreme Court of Rhode Island.

July 19, 2005.

Joseph V. Cavanagh, Jr., Esq., Providence, for Petitioner.

Michael W. Field, Esq., for Respondent.

Before: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

FLAHERTY, Justice.

"[I]n order to enjoy the inestimable benefits which the liberty of the press ensures, it is necessary to submit to the inevitable evils which it engenders."¹

At issue here is the propriety of contempt citations issued to certain members of the news media who are alleged to have violated a trial court order prohibiting the publication of information or photographs in connection with a sensational murder trial. Because a witness to a previous related trial had been murdered on the eve of her testimony, the state filed a motion intended to protect those persons expected to testify in the subsequent trial. We are called upon to determine the constitutional soundness of the trial court's order and the implication for those members of the media who are accused of violating it.

This case centers around an October 22, 2003 Superior Court order entered just prior to the start of the trial of Charles Pona, a convicted murderer who faced further charges, including obstruction of justice, conspiracy to commit murder, and murder of an eyewitness who had been killed the night before she was scheduled to testify against him. Granted upon a motion made by the state, the order in question was tailored to ensure witness safety, and included prohibitions against the publication of specified identifying information and/or visual depictions of the witnesses' faces. Soon after the motion was granted, each of the petitioners, the Providence Journal Company and its reporter Karen A. Davis, and WLNE-6 and its employees Josie Guarino and Tara Baxter, allegedly violated the order, precipitating the state's institution of contempt-of-court proceedings against them. On January 9, 2004, this Court granted the petitioners' petition for writ of certiorari, requesting that we review the October 22, 2003 order as well as the trial court's subsequent orders directing the petitioners to show cause why they should not be held in contempt thereof. For the reasons stated below, we quash the show-cause orders entered by the Superior Court.

Facts and Procedural History

In the spring of 2000, Charles Pona stood trial for the 1999 shooting death of Hector Feliciano. He was found guilty and sentenced to life in prison for his crimes.² Among the several witnesses whose statements lead to Pona's arrest for the murder was Jennifer Rivera, a fifteen-year-old girl, who identified Pona as the man she saw running away from the scene of the crime when she looked out her kitchen window after hearing gunshots. Although Rivera's account of the murder was memorialized in her signed police statements and her testimony at Pona's bail hearing, she never took the stand in Pona's murder trial; after months of being threatened that she would be killed if she testified against Pona, Rivera was gunned down the night before she was scheduled to testify, shot twice in the head at close range.³

Three individuals have been held responsible for Jennifer's death: Charles Pona, his half brother Dennard Walker, and Miguel Perez. Intent on preventing Jennifer from testifying, the men sought Jennifer out and ambushed her on a city street, with Walker firing the fatal shots. Both Walker and Perez pleaded guilty to killing Jennifer Rivera. It was Charles Pona's trial, however, that gave rise to the court order at issue here. In the fall of 2003, Pona went on trial for the charges relating to Jennifer's death, which included murder, conspiracy, and obstruction of the judicial system, all of which eventually resulted in guilty verdicts.⁴ The trial was scheduled to commence on October 20, 2003, but was continued until October 27, 2003. In the meantime, on October 22, 2003, the state filed, without objection, a "Motion to Ensure Witness Safety," asserting that precautionary measures were necessary to protect witnesses in the upcoming trial. The motion stated in pertinent part that

"(3) Dennard Walker and Miguel Perez have already pleaded guilty to killing Jennifer Rivera, in conspiracy with Charles Pona, for the purpose of preventing Jennifer Rivera from testifying against Charles Pona at his murder trial for the killing of Hector Feliciano.

"(4) During investigation into the murder of Jennifer Rivera, telephone calls and conversations were intercepted at the ACI and other penal institutions wherein Dennard Walker, among others, discussed killing a prosecutor in the Feliciano trial and cooperating witnesses in the Jennifer Rivera murder investigation.

"(5) Based upon the aforementioned information and good faith belief, the State submits that precautionary measures should be ordered by this court to ensure the safety of civilian witnesses who may testify at trial in the instant matter."

Justifiably concerned with security, the trial justice directed that all motions made prior to and during the trial were to be filed with him, rather than in the Superior Court clerk's office. The criminal file and docket remained in the personal custody of the trial judge. Thus, the state's motion was presented to the trial justice in chambers, and it was not immediately entered into the criminal docket. Without holding a hearing on the matter or providing notice to any members of the media, and with neither a stenographer nor clerk present in his chambers, the trial justice granted the state's motion and issued an order consisting of the following:

"A. That either of the litigant parties, or the clerk of court, refrain from asking any State witness to state their current address of residence or place of employment in court;

"B. That no State witness be compelled to state their current address of residence or place of employment in court;

"C. If news media (radio, print, television) are allowed in court during the trial, they are to be ordered NOT to publicize the current address of residence or place of employment of any State witness, or the address of residence or place of employment of any State witness' family member(s);

"D. If news media (radio, print, television) are allowed in court during the trial, they are to be ordered NOT to photograph, videotape, or artistically reproduce the face of any State witness.

"E. If news media (radio, print, television) are allowed in court during the trial, they are to be ordered NOT to publicize any visual depiction of the face of any State witness, whether by photograph, videotape, or artistic reproduction.

"F. That all affected parties be advised that a violation of the court's Order shall be punishable by any means available to the court consistent with the Court's inherent authority to punish contemptuous acts."

After the trial justice signed the order in chambers, it was placed in Pona's criminal file; a single copy was made and provided to the state (and only the state). A week later, on October 30, the trial justice distributed the order to some members of the media who were informally assembled in the courtroom. The parties have agreed that neither Guarino nor Baxter was present in the courtroom and that neither received a copy of the order at that time. The parties further agree, however, that at least one reporter covering the trial for WLNE-6 did receive the order, but did not forward it to or advise Baxter or Guarino of it. Although Karen Davis of the Providence Journal was in the courtroom at the time of the distribution, she did not receive a copy of the order.

It is alleged that over the course of the following week, each of the petitioners violated the terms of the order, irrespective of who knew about the limitations imposed upon them. Despite the specific proscriptions listed in the order, members of the media were allowed in the courtroom once the trial began. It was not until November 6, 2003, however, that the trial justice ordered a blanket prohibition of camera coverage. The state alleged several violations of the restrictive order, none of which has either been established in the record or denied by petitioners. The claimed violations include the following incidents: On October 30, 2003, the very same day that the order was informally distributed to various members of the media by the trial justice, a reporter from WLNE mentioned the order on the six o'clock news, indicating WLNE's awareness of its existence. Nevertheless, on November 4, 2003, after WLNE cameraperson Tara Baxter videotaped the testimony of state's witness Dennis Fullen, WLNE's six o'clock news aired the videotape, including pictures of Fullen's face, with identifying information and commentary from reporter Josie Guarino. During that same broadcast, WLNE disclosed the name and identity of future state's witness Miguel Perez, and broadcast previously recorded video footage of him, also in apparent violation of the terms of the order. The next day, WLNE again displayed previously recorded footage of Perez, stated his name, and identified him as a state's witness. The state alleged that the restrictive order also was violated on November 7, 2003, when the Providence Journal published an article by Karen Davis titled "Rivera's murderer testified he acted alone." The article described Perez's testimony and was accompanied by a file photograph of him.

One week later, on November 14, the state began its efforts to bring contempt charges against petitioners.⁵ In response to the state's applications for show-cause orders, the court issued two orders, one directed at WLNE, Baxter, and Guarino, and the other directed at The Providence Journal and Davis, directing the petitioners to appear on November 26, 2003, to show cause why they should not be held in contempt. The petitioners then argued for the stay of the restrictive and...