Maryland Supreme Court postpones decision on proposed rule to curtail public access to criminal case recordings

The Supreme Court of Maryland on Friday delayed a decision on a proposal to prevent the public from getting recordings of criminal court proceedings in the state, citing a late wave of opposition to the proposal from the press, public and lawyers across the state.

The seven justices voted unanimously to send the proposal back to the judiciary’s rules committee, which pledged to collaborate with media organizations, attorneys and others potentially impacted by the proposed rule change. Held over Zoom and broadcast by the judiciary, the meeting Friday lasted less than an hour.

Retired appellate judge Alan Wilner, chairman of the high court’s Standing Committee on Rules of Practice and Procedure, said additional time to work on the rule would overlap with the session of the Maryland General Assembly, providing the legislature an opportunity to weigh in on what he described as a “public policy issue.”

Wilner said there was an “avalanche” of opposition despite a lack of participation in the rules committee hearings from the press and public.

The meeting Friday followed a Dec. 9 ruling from U.S. District Judge Richard D. Bennett striking down Maryland’s ban on broadcasting legally obtained recordings of court proceedings as unconstitutional. While Bennett found the state’s intention of protecting against witness intimidation and preserving the integrity of court proceedings was legitimate, he determined the prohibition violated the First Amendment.

Bennett’s ruling resolved a federal lawsuit, brought in 2019 by a coalition of journalists and activists, challenging the state’s so-called “broadcast ban.” The state has a short window remaining to appeal Bennett’s decision in Soderberg v. Carrion. (Brandon Soderberg is a journalist; Judge Audrey Carrion is the chief judge of Baltimore Circuit Court.)

Responding to Bennett’s ruling on an emergency basis, the rules committee on Dec. 14 submitted a report to the high court proposing a rule change that would prevent the public from obtaining audio recordings of criminal court cases.

The committee’s proposed rule would end the practice of courts providing, upon request and payment, CDs or digital files containing recordings of criminal court proceedings in Maryland. Instead, people who want to listen to a criminal trial or hearing after it happens would only be allowed to do so at a courthouse and under the supervision of a judiciary employee. They would be barred from making copies of the recording.

A temporary amendment proposed by the rules committee Friday would’ve seen the Supreme Court prohibit the release of audio recordings of a trial until a verdict was reached. That amendment was voted down with the justices saying the law already allows judges to prevent audio recordings of sensitive testimony from being released, on a case-by-case basis.

Seth Wayne, senior counsel at Georgetown University Law Center’s Institute for Advocacy and Protection, applauded the court’s decision in a telephone interview after the meeting.

His organization, along with the Maryland Volunteer Lawyers for the Arts, represented the group of journalists and activists in the Soderberg case. He said those who fought the state in the federal lawsuit looked forward to working with the rules committee and the legislature to ensure public access to court recordings.

“If anything, courts should be more transparent and not less,” Wayne told The Baltimore Sun.

Ahead of the hearing Friday, the state Supreme Court received approximately 60 submissions of comments about the proposed rule ahead of the hearing from citizens, activists, reporters, lawyers — some of the submissions filed for civil rights groups, transparency advocates and news organizations.

All but three submissions opposed the proposed rule.

Opponents generally described the committee’s proposal as an assault on the First Amendment and the sacred legal presumption of open courts — a principle that has been upheld repeatedly by the U.S. Supreme Court. They said the judiciary was attempting to defy the federal court’s ruling.

“The adoption of the proposed Amendments would cause harm to the people of Maryland, with no corresponding benefit‚” one coalition’s letter said. “It would put state courts in breach of bedrock constitutional rights and would be a major step backward for the public’s right of access to the courts.”

Maryland lawyers weighed in, too, with concerns about the proposal.

While the proposed rule provides that attorneys officially involved in a case can obtain audio recordings, the exceptions don’t apply for lawyers in other situations.

“Sometimes a particular witness’s testimony in a case for which the requesting attorney is not representing a party, may be essential to cross examine a witness in a case for which the attorney is representing a party. For example, listening to an expert’s testimony in another proceeding may be critical to a client’s defense,” read a letter from the Maryland Criminal Defense Attorneys’ Association opposing the proposed rule.

Several lawyers submitted comments to the court individually.

Even if a lawyer could go to court to listen to a recording, their client may not be able to, particularly if they’re incarcerated, attorney Adam Harris, of Montgomery County, wrote to the Supreme Court in opposition.

Harris’ letter said he recently took a case where his client’s co-defendant had a previous court hearing in Washington County and he wanted to listen to it. “Under the existing rules, I simply ordered the audio for the hearing and a CD showed up a few days later,” Harris wrote. “Under the proposed rule, I would have to spend half the day driving to Hagerstown to accomplish this.”

In support of the proposed rule change are most of Maryland’s elected prosecutors, who cited existing challenges convincing witnesses and victims to testify in court. They argue the prospect of the audio being released publicly would exacerbate the struggles and make it near impossible to secure testimony.

“If victims and witnesses learn that their court testimony may be on the six o’clock news, I fear we will be in the full-time business of issuing body attachments,” Baltimore County State’s Attorney Scott Shellenberger wrote to the Supreme Court, referring to the practice of arresting witnesses to ensure their testimony. “The new proposed Rules balance the right of the public and press to know what is going on in our courtrooms with the right of victims and witnesses to feel safe.”

Attorneys representing Maryland presented similar logic defending the state in the lawsuit challenging its former broadcast ban.

In his opinion, Bennett wrote that the broadcast ban did little to protect against witness or victim intimidation, as their names are already public record and anyone sitting in court could publicize exactly what they testified to after court.

The ban “is far more expansive than necessary to achieve its desired ends, as it restricts the publication of official recordings in all criminal proceedings held in trial court — even where there are no manifest concerns that a subsequent broadcast might undermine the fairness of the trial or endanger its witnesses,” Bennett wrote.