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Casey Anthony Media Appendix District Court of appeal May 3 2011

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Casey Anthony Media Appendix District Court of appeal May 3 2011

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									           IN THE DISTRICT COURT OF APPEAL
               OF FLORIDA, FIFTH DISTRICT


                        CASE NO.
             L.T. CASE NO. 48-2008-CF-015606-O


                     STATE OF FLORIDA,



                 CASEY MARIE ANTHONY,

                          Defendant.


                       APPENDIX TO

  RULE 9.100(d) PETITION FOR REVIEW OF INTERVENORS
WPTV-TV, WFTS-TV, NAPLES DAILY NEWS, SCRIPPS TREASURE
    COAST NEWSPAPERS, AND THE ASSOCIATED PRESS


           On Petition From the Circuit Court of the
                     Ninth Judicial Circuit
              in and for Orange County, Florida


                                  Judith M. Mercier (FBN #0032727)
                                  Gennifer B. Powell (FBN #0072333)
                                  HOLLAND & KNIGHT LLP
                                  200 South Orange Avenue, Ste 2600
                                  Post Office Box 1526 (32802-1526)
                                  Orlando, Florida 32801
                                  Telephone: (407) 425-8500
                                  Facsimile: (407) 244-5288
                                  INDEX


 Exhibit/Tab   Document

 A             Confidentiality Agreement

B              Emergency Motion of News Organizations to Intervene and for
               Reconsideration of Implementation and Enforcement of
               Confidentiality Agreement

C              Transcript of May 2, 2011 Hearing on Emergency Motion of
               News Organizations to Intervene and for Reconsideration of
               Implementation and Enforcement of Confidentiality Agreement

D              Order Denying Emergency Motion of News Organizations to
               Intervene and for Reconsideration of Implementation and
               Enforcement of Confidentiality Agreement, dated May 2, 2011

E              Order on Motion for Change of Venue, dated May 10, 2010




#10314905 vl
Exhibit A
                               NINTH JUDICIAL CIRCUIT COURT

                               CONFIDENTIALITY AGREEMENT
                         State v. Anthony, Case No. 48-2008-CF-015606-O

        The Court has the legal responsibility to ensure that a criminal defendant's sixth
amendment right to an impartial jury is protected. The Court can and must take reasonable steps
designed to ensure that right is secure. For the case of State v. Anthony, Case No. 48-2008-CF-
015606-O, the jury selection process will be moved to a venue outside Orange County, Florida,
due to the extensive media coverage this case has received and the resulting presumed difficulty
in obtaining jurors from within Orange County.

        The Court, however, also recognizes the media's first amendment rights to access court
proceedings and the media's desire to attend the jury selection proceedings. The Court
understands that media representatives would prefer to know where the jury selection
proceedings will occur as far in advance as possible so that logistical arrangements, such as
reserving hotel accommodations and obtaining/moving equipment, could be accomplished.
Nevertheless, by releasing such information in advance, the Court is apprehensive that the new
locale would be inundated with media coverage which would thereby again cause concern with
the defendant's sixth amendment right to obtaining a fair and impartial jury.

        In order to accommodate members of the media solely for planning purposes, the Court
will inform individual members of the media where the change of venue will be on May 8, 2011,
as long as the media representative enters into this Confidentiality Agreement. The Agreement
must be signed by the individual binding himself or herself, along with binding his or her
employer or media organization.

        By signing this Agreement, I understand and agree that prior to May 9, 2011, at 8:00
a.m., or until the jury selection proceedings actually begin, whichever is later, that:

       1. The term "I" as used in this Agreement includes me individually, my employing
organization, and the organization's owners, executives, officers, employees and contractors. I
hereby state that I have the authority to bind said organization.

        2. I will not disclose said location to anyone except for those extremely limited number
of people in my organization who have an immediate need to know in order to make logistical
arrangements for coverage of the proceedings. I will ensure that those persons know that the
location is confidential and cannot be disclosed to anyone else.

        3. I will not go to the venue location prior to the jury selection proceedings for any
reason in connection with the case except for overnight lodging immediately prior to the start of
proceedings.

        4. I will not broadcast, publish or in any way disclose the location of the venue change
on any type of media, including but not limited to, the internet, social media, radio, television or
publication of any type based solely on the information given to me by the Court.


                                            Page 1 of 2
       5. If, however, I determine the location where the jury selection will take place by
independent means, 1 acknowledge that 1 am free to publish, broadcast or otherwise use said
information in any way. The Court though will not confirm or deny any information in
connection with the location of the venue change discovered through independent means.

        6. I can be released from this Agreement after I am officially told the location of the
venue by the Court upon receiving permission from the Court in the event other media outlets
are broadcasting or otherwise publicizing the information.

        7. If I fail to comply with this Agreement, my court-issued media credentials and the
court-issued media credentials held by members of my organization will be revoked for the
entire proceedings in this case and I may be held in contempt of court which could result in
incarceration, a fine, or both.


Signature:

Title:

Printed Name:

Media Organization:

Contact Phone Number:

Email:

Date:

STATE OF _
COUNTY OF

         Sworn to (or affirmed) and signed before me on this         day of
                             , 2011, by



                                              NOTARY PUBLIC

         Personally Known              OR Produced Identification

         Type of Identification Produced:




                                            Page 2 of 2
Exhibit B
                                                 IN THE CIRCUIT COURT OF THE NINTH
                                                 JUDICIAL CIRCUIT IN AND FOR ORANGE
                                                 COUNTY, FLORIDA

 STATE OF FLORIDA,
                                                 CASE NO.: 48-2008-CF-015606-O
        Plaintiff,

v.

CASEY MARIE ANTHONY,

        Defendant.
                                             /

             EMERGENCY MOTION OF NEWS ORGANIZATIONS
     TO INTERVENE AND FOR RECONSIDERATION OF IMPLEMENTATION
              AND ENFORCEMENT OF CONFIDENTIALITY AGREEMENT

       WOFL FOX 35, WKMG, WPTV-TV, WFTS-TV, Naples Daily News, Scripps

Treasure Coast Newspapers (Stuart News, Ft. Pierce Tribune and Vero Beach Press

Journal), Central Florida News 13, and The Associated Press (collectively "News

Organizations") hereby file this emergency motion seeking to intervene for the limited

purpose of moving for reconsideration of this Court's implementation and enforcement of a

certain Confidentiality Agreement ("Agreement") in the instant case on the basis that the

Agreement violates well-established First Amendment and Florida law. The grounds for this

motion are:

       1.       The News Organizations are entitled to intervene in this action for the limited

purpose of protecting their and the public's rights of access to judicial proceedings. Miami

Herald Publ'g Co. v. Lewis, 426 So. 2d 1, 7 (Fla. 1982).

       2.      The Agreement proposes to limit the distribution of information concerning

the change in venue for jury selection in this case prior to the commencement of jury
 selection to only those news organizations who agree: (1) not to disclose the location of the

 change in venue to anyone except for those necessary to make logistical arrangements for

 coverage of the proceeding; (2) not to arrive at the venue location before jury selection

proceedings begin except to stay overnight immediately before the proceedings; and (3) not

to broadcast, publish, or otherwise disclose the location of the venue change.

        3.      The penalty for failure to comply with the terms of the Agreement includes

revocation of court-issued media credentials and the possibility of being held in contempt of

court, resulting in incarceration and/or a fine.

        4.      On or before March 8, 2011, News Organizations learned that pursuant to the

Court's instructions, General Counsel for the Ninth Judicial Circuit Court ("General

Counsel") had drafted the Agreement and circulated it as "proposed" and welcomed comment

on it. A copy of the proposed Agreement is attached as Exhibit 1.

        5.      On March 16, 2011, News Organizations sent a letter to General Counsel

objecting to the proposed Agreement on the basis that it violates well-established First

Amendment and Florida law. A copy of the March 16, 2011 letter is attached as Exhibit 2.

        6.     On April 27, 2011, News Organizations learned from General Counsel that

this Court intends to implement and enforce the Agreement. General Counsel further advised

that those media organizations that sign the Agreement will be informed in the afternoon or

early evening of Sunday, May 8, 2011 where jury selection will occur on May 9, 2011.

According to General Counsel, those organizations that do not sign the agreement will be

told on Monday, May 9, 2011 at 8:00 a.m., approximately an hour before jury selection is

scheduled to begin, of the jury selection location.
        7.      For reasons further explained below, News Organizations contend that the

 Agreement unconstitutionally denies them and the public access to an open judicial

proceeding, i.e., jury selection in the instant case. News Organizations request that the Court

reconsider and not implement or enforce the Agreement.

        8.      As the News Organizations were notified on April 27, 2011 of the Court's

decision to implement and enforce the Agreement but no Order has been entered and jury

selection is set to begin on May 9, 2011, News Organizations request and are entitled to

expedited consideration of this Motion.

                                MEMORANDUM OF LAW

I.      The Proposed Agreement Impermissibly Limits Access to a Court Proceeding

        The Court's implementation and enforcement of the Agreement effectively denies the

press (and therefore the public) access to jury selection, an open judicial proceeding, unless

they agree to an unconstitutional prior restraint. Such actions and the Agreement violate

well-established First Amendment and Florida law. Through the Agreement, the Court is

attempting to negotiate the terms of courtroom access by the press and the public. If News

Organizations refuse to submit to the terms proposed in the Agreement, information about

the location of jury selection will be withheld from them until immediately before selection is

to begin somewhere in the State of Florida.

       News Organizations should not be required to acquiesce to an unconstitutional prior

restraint in order to be afforded sufficient information to attend the entirety of a judicial

proceeding. The phrase "better late than never" does not apply to news coverage, which must

be prompt to be effective and is necessary to inform the public of the venue of an open
 proceeding. Even a temporary withholding of news from the public has been rejected by the

 Florida Supreme Court except in rare circumstances:

        It is argued that a temporary withholding of news from the public may aid in
        assuring a fair trial and that if the State and defendant agree to muzzling the
        press no one else has a right to object. We firmly reject any suppression of
        news in a criminal trial except in those rare instances such as national security
        and where a news report would obviously deny a fair trial . . . . Freedom of
        the press is not, and has never been a private property right granted to those
        who own the news media. It is a cherished and almost sacred right of each
        citizen to be informed about current events on a timely basis so each can
        exercise his discretion in determining the destiny and security of himself,
        other people, and the Nation. News delayed is news denied. To be useful to
        the public, news events must be reported when they occur. Whatever
        happens in any courtroom directly or indirectly affects all the public. To
        prevent star-chamber injustice the public should generally have unrestricted
        access to all proceedings.

State of Florida ex rel. Miami Herald Publ'g Co. v. Mcintosh, 340 So. 2d 904, 910 (Fla.

1976) (emphasis added). No rare circumstance "such as national security" exists here.

        To withhold information about a judicial proceeding from the public and the press

(even using an approach of "you have to find us") equates to denying access to a public

proceeding.    Such actions are contrary to, and a violation of, well established First

Amendment jurisprudence and Florida law. See e.g. Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980); Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1

(1986). The "legitimacy of our court system and the strength of our democracy is fostered

when the public has broad access to court proceedings." Sarasota Herald-Tribune v. State,

916 So. 2d 904, 907 (Fla. 2d DCA 2005).

       Preventing the press (and consequently the public) from attending a court proceeding

cannot occur without an evidentiary hearing in which the court specifically finds that: (1) the

requested limitation on access is necessary to prevent a serious and imminent threat to the
 administration of justice; (2) no alternatives are available, other than change of venue, which

 would protect a defendant's right to a fair trial, including voir dire of potential jurors,

 continuance, change of venire, peremptory challenges and admonition of the jury; and (3) the

 requested limitation on access is no broader than necessary to be effective in protecting those

 fair trial rights. Miami HeraldPubl'g Co. v Lewis, 426 So. 2d 1, 3, 8 (Fla. 1982). Even when

a "serious and imminent" threat to a defendant's fair trial rights may exist, a less restrictive

alternative must be chosen when it is available. See id. at 8. Extensive pretrial publicity is

not alone sufficient to show a serious and imminent threat to the administration of justice.

        There has been no showing of a serious and imminent threat to the defendant's fair

trial rights. Even if such a showing could be made (and News Organizations contend that it

cannot), the use of voir dire, peremptory challenges, and the admonition of the jury could all

be utilized instead of restricting access to the proceedings. See id. This is especially true

given that there has been no showing that the requested limitation of the public's knowledge

of the location of the proceedings will be effective in protecting the defendant's fair trial

rights. There has been extensive news coverage locally, statewide, and nationally of this case

and any potential juror that views or reads the news has at least some knowledge of the

matter. Limiting knowledge of the location of the jury selection until after it starts will not

lessen or mitigate that exposure and will not further the protection of the defendant's Sixth

Amendment rights. Accordingly, the proposed Agreement, with its effective restriction on

public access to the Anthony proceedings, is unlawful.

II.    The Proposed Agreement Seeks Consent For An Illegal Prior Restraint

       Prior restraints are abhorrent to the First Amendment. The terms of the Agreement
 require press organizations that enter into the Agreement to refrain from disclosing the

 location of jury selection proceedings until the proceedings begin. Requiring the press to

 agree to such a restriction in order to obtain information about the location of a public

proceeding is an untenable prior restraint. See Nebraska Press Ass'n v. Stuart, All U.S. 539,

 559, 561 (1976) (holding that a "gag" order on the media that expired when the jury was

impaneled nonetheless constituted a prior restraint, and stating that an order postponing

publication should be met with intense skepticism as a "measure[] that would allow

government to insinuate itself into the editorial rooms of this Nation's press").

        A stringent three-part test applies to any prior restraint on publication, and requires

that a court determine (1) the nature and extent of pretrial news coverage; (2) whether other

measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (3)

how effectively a restraining order would operate to prevent the threatened danger. Nebraska

Press, 427 U.S. at 562-563; see also Times Publ'g, 632 So. 2d at 1074-75. A party seeking a

prior restraint comes to the court "with a heavy presumption against [the] constitutionality"

of the restraint, and "before First Amendment freedoms can be abridged, substantive evil

must be extremely serious and the degree of imminence extremely high." Miami-Herald

Publ'g Co. v. Mcintosh, 340 So. 2d 904, 908 (Fla. 1976); see also Times Publ'g, 632 So. 2d at

1074.

        Here, the three-part test has not and cannot be met. There are other, less restrictive,

measures that would "mitigate the effects of unrestrained pretrial publicity." Such measures

include "searching questioning of prospective jurors" and "emphatic and clear instructions on

the sworn duty of each juror to decide the issues only on evidence presented in open court."
 Nebraska Press, All U.S. at 564. Even where publicity would constitute a "clear and present

 danger" to a defendant's fair trial rights, a prior restraint order will not be upheld where other,

 less restrictive, protective measures were available. Mcintosh, 340 So. 2d at 908-09 (noting

 that "admonition to jurors and . . . sequestration of the jury" provides a trial judge with

 "ample power to insure a fair trial for a criminal defendant without suppressing First

Amendment rights of the news media as regards reporting proceedings")

        The defendant is entitled to an impartial jury, not jurors that have never heard about

her case. As the U.S. Supreme Court reiterated in Skilling v. U.S., "[prominence does not

necessarily produce prejudice, and juror impartiality . . . does not require ignorance."

Skilling v. U.S., 130 S. Ct. 2896, 2914-15 (2010) (emphasis in original). Florida courts have

long recognized that "[i]t is not required .. . that the jurors be totally ignorant of the facts and

issues involved. . . . It is sufficient if the juror can lay aside his impression or opinion and

render a verdict based on the evidence presented in court." Dillbeck v. State, 964 So. 2d 95,

102 (Fla. 2007) (quoting Irvin v. Dowd, 366 U.S. 717, 722-23 (1961); see also Rolling v.

State, 695 So. 2d 278, 285 (Fla. 1997) ("To be qualified, jurors need not be totally ignorant

of the facts of the case nor do they need to be free from any preconceived notion at all,...");

Bundy v. State, All So. 2d 9, 19 (Fla. 1985) ("The mere existence of extensive pretrial

publicity is not enough to raise the presumption of unfairness of a constitutional magnitude.);

Copelandv. State, 457 So. 2d 1012, 1016 (Fla. 1984) ("Public knowledge alone, however, is

not the focus of the inquiry on a motion for change of venue based on pretrial publicity. The

critical factor is the extent of the prejudice, or lack of impartiality among potential jurors,

that may accompany the knowledge.").
         In the instant case, application of the voir dire process and "emphatic and clear

 instructions" to the jury may be utilized to effectively address any concerns about an unfair

jury. Such steps would be viable alternatives to the imposition of a prior restraint from

 publishing information about the location of jury selection. The suggested approach of

 imposing the proposed Agreement on the press is not a viable alternative.

        In highly publicized cases as well-known or even more notorious than the Anthony

case, Florida courts have not attempted to conceal the location of proceedings from the media

or the public, relying instead on the effectiveness of measures such as a "meticulous jury

selection and screening process." See Rolling, 695 So. 2d at 285 (affirming the trial court's

denial of a motion for a change in venue in a case where the defendant killed five college

students and received extensive pretrial publicity, and noting the trial court's "meticulous"

voir dire process); see also Bundy, All So. 2d at 19-20 (holding that the trial court did not err

in denying Ted Bundy's motion for change of venue or abatement of prosecution, as each

selected juror stated that they would put aside any preconceived opinions); Copeland, 457

So. 2d at 1016 (holding that even though every member of the jury panel had read or heard

something about the crime that the defendant allegedly committed, the trial court did not err

in denying a motion for change in venue where the jurors said they could disregard

previously gained information).

       Furthermore, as previously noted, the nature and extent of the pretrial news coverage

in this matter has been extensive, widespread, and national. Media coverage has not been

restricted to the current venue of the case in Orange County. Instead, potential jurors all over

the state of Florida have been exposed to repeated coverage by both local and national news
agencies. Accordingly, preventing the media from reporting on the location of jury selection

would not further the purported goal of preventing an unfair jury pool. The likelihood that

published information about the change in venue would have any further effect on potential

jurors than what intense national news coverage has already had is slim at best. In addition,

the effectiveness prong of the three-part test cannot be met because if anyone, news

organization or not, should learn of and publicize the jury selection venue, only those that

signed the Agreement would be prohibited from disseminating that news. The proposed

terms of the Agreement would not operate to prevent the perceived danger of an unfair jury.

III.   Conclusion

       For the above-stated reasons, News Organizations respectfully request that this Court

reconsider and not implement or enforce the Confidentiality Agreement.

       DATED: April 28, 2011.

                                            HOLLAND & KNIGHT LLP
                                            Attorney for News Organizations
                                            200 South Orange Avenue, Ste 2600
                                            Post Office Box 1526 (32802-1526)
                                            Orlando, Florida 32801
                                            Phone: (407) 425-8500
                                            Fax: (407) 244-5288


                                            J u c p M. MercW(FBN #0032727)
                                            Gennifer B. Powell (FBN #0072333)
                               CERTIFICATE OF SERVICE

          I HEREBY CERTIFY that on this 28th day of April, 2011, a true and correct copy of

 the foregoing was served by either Facsimile and/or Electronic Mail and U.S. Mail to:

Linda Drane Burdick, Esq.                       Jose Baez, Esq.
Jeffrey L. Ashton, Esq.                         Michelle Medina, Esq.
Frank George, Esq.                              The Baez Law Firm
Assistant State Attorneys                       522 Simpson Road
415 North Orange Avenue                         Kissimmee, FL 34744
Orlando, FL 32801                               Facsimile: (407) 705-2625
Facsimile: (407) 836-2330

J. Cheney Mason, Esq.                           Robin S. Berghorn, Esq.
J. Cheney Mason, P.A.                           General Counsel for the Ninth Judicial
390 North Orange Ave., Suite 2100               Circuit Court
Orlando, FL 32801                               425 North Orange Avenue
Facsimile: (407) 422-6858                       Orlando, FL 32802
                                                Email: ctlcrbl (glocnicc.org

Ann Finnell, Esq.
Finnell, McGuinness, Nezami, & Andux P.A.
233 East Bay Street, Suite 601
Jacksonville, FL 32202
Facsimile: (904) 791-1102




                                               JujHth M. MerClej



#10305226 vl




                                               10
                         NINTH JUDICIAL CIRCUIT COURT
                              CONFIDENTIALITY AGREEMENT
                        State v. Anthony, Case No. 48-2008-CF-015606-O

         The Court has the legal responsibility to ensure that a criminal defendant's sixth
 amendment right to an impartial jury is protected. The Court can and must take reasonable steps
 designed to ensure that right is secure. For the case of State v. Anthony, Case No. 48-2008-CF-
 015606-O, the jury selection process will be moved to a venue outside Orange County, Florida,
 due to the extensive media coverage this case has received and the resulting presumed difficulty
 in obtaining jurors from within Orange County.

        The Court, however, also recognizes the media's first-amendment rights to access court
proceedings and the media's desire to attend the jury selection proceedings. The Court.
understands that media representatives would prefer to know .where the jury selection
proceedings will occur as far in advance as possible so that logistical arrangements, such as
reserving hotel accommodations and obtaining/moving equipment, could be accomplished.
Nevertheless, by releasing such information in advance, the Court is apprehensive that the new
locale would be inundated with media coverage which would 'thereby again cause concern with
the defendant's sixth amendment right to obtaining a fair and impartial jury.

        In order to accommodate members of the media solely for planning purposes, the Court
will inform individual members of the media where the cnange-of venue will be on (date/time)
as long as the media representative enters into this Confidentiality Agreement. The Agreement
must be signed by the individual bjnding himself or herself, along with binding his or her
employer or media organization.v'                       \       *"'

        As a condition of being granted information as to where the venue change will be prior to
the start of the jury selection proceedings, I understand and agree that prior to May 9,2011, at
9:00 a.m., or until the jury selection proceedings actually begin, whichever is later, that:

       1. The term "I" as used'in this Agreement includes me individually, my employing
organization, and the organization's owners, executives, officers, employees and contractors. I
hereby state that I have the authority to bind said organization.

        2. I will not disclose sSid location to anyone except for those extremely limited number
of people in my organization who have an immediate need to know in order to make logistical
arrangements for coverage of the proceedings. I will ensure that those persons know that the
location is confidential and cannot be disclosed to anyone else.

        3. I will not go to the venue location prior to the jury selection proceedings for any
reason in connection with the case except for overnight lodging immediately prior to the start of
proceedings.
       4. I will not broadcast, publish or in any way disclose the location of the venue change
on any type of media, including but not limited to, the internet, social media, radio, television or
publication of any type.

        5. If I fail to comply with this Agreement, my court-issued media credentials and the
court-issued media credentials held by members of my organization will be revoked for the
entire proceedings in this case and I may be held in contempt of court which could result in
incarceration, a fine, or both.


Signature:

Title:

Printed Name:

Media Organization:

Contact Phone Number:

Email:

Date;




For legal questions concerning this draft Agreement, please contact:

           Robin S. Berghorn
           General Counsel
           Ninth Judicial Circuit Court
         , (407) 836-2233
           Email:' ctlcrbl@ocnjcc.org
 Holland & Knight
 200 South Orange Avenue, Suite 2600 | Orlando, FL 32801 | T 407.425.8500 | F 407.244.5288
 Holland & Knight LLP | www.hklaw.com




March 16,2011                                                                                JUDITH M. MERCTER
            '                                                                                407-244-5151
                                                                                             judy.mereier@hldaw, com
VIA ELECTRONIC MAIL AND HAND DELIVERY


Robin S. Berghorn, Esq.
General Counsel
Ninth Judicial Circuit Court
425 North Orange Avenue
Orlando, Florida 32801
ctlcrbl@ocnjcc.org

                   Re:      Proposed Confidentiality Agreement in
                            State v. Anthony, Case No. 48-2008-CFR-015606-O


Dear Ms. Berghorn,
        I am writing on behalf of WOFL FOX 35, WKMG, WPTV-TV, WFTS-TV, Naples Daily
News, Scripps Treasure Coast Newspapers (Stuart News, Ft. Pierce Tribune and Vero Beach
Press Journal), Central Florida News 13, and The Associated Press (collectively "News
Organizations") to object to the draft Confidentiality Agreement ("Agreement") proposed in
State v. Anthony, Case No. 48-2008-CF-015606-O and to urge you not to implement it. The
Agreement violates well-established First Amendment and Florida law.
        The Agreement proposes to limit the distribution of information concerning the change in
venue for jury selection in State v. Anthony prior to the commencement of jury selection to only
those news organizations who agree: (1) not to disclose the location of the change in venue to
anyone except for those necessary to make logistical arrangements for coverage of the
proceeding; (2) not to arrive at the venue location before jury selection proceedings begin except
to stay overnight immediately before the proceedings; and (3) not to broadcast, publish, or
otherwise disclose the location of the venue change. The penalty for failure to comply with the
terms of the Agreement includes revocation of court-issued media credentials and the possibility
of being held in contempt of court, resulting in incarceration and/or a fine.

                The Proposed Agreement Impermissibly Limits Access to a Court Proceeding
       Withholding information from the public and the press about the venue for jury selection
(even an approach of "you have to find us") equates to denying access to a public proceeding.
    Robin S. Berghorn
    March 16,2011
    Page 2

    Such actions are contrary to, and a violation of, well established First Amendment jurisprudence1
    and Florida law. The "legitimacy of our court system and the strength of our democracy is
    fostered when the public has broad access to court proceedings."2 Even a temporary withholding
    of news from the public has been rejected by the Florida Supreme Court except in rare
    circumstances:

           It is argued that a temporary withholding of news from the public may aid in
           assuring a fair trial and that if the State and defendant agree to muzzling the press
           no one else has a right to object. We firmly reject any suppression of news in a
           criminal trial except in those rare instances such as national security and where a
           news report would obviously deny a fair t r i a l . . . . Freedom of the press is not,
           and has never been a private property right granted to those who own the news
           media. It is a cherished and almost sacred right of each citizen to be informed
           about current events on a timely basis so each can exercise his discretion in
           determining the destiny and security of himself, other people, and the Nation.
           News delayed is news denied. To be useful to the public, news events must be
           reported when they occur. Whatever happens in any courtroom directly or
           indirectly affects all the public. To prevent star-chamber injustice the public
           should generally have unrestricted access to all proceedings.3

         No such rare circumstance exists here. Preventing the public from attending a court
proceeding cannot occur without an evidentiary hearing in which the court specifically finds that:
(1) the requested limitation on access is necessary to prevent a serious and imminent threat to the
administration of justice; (2) no alternatives are available, other than change of venue, which
would protect a defendant's right to a fair trial, including voir dire of potential jurors,
continuance, change of venire, peremptory challenges and admonition of the jury; and (3) the
requested limitation on access is no broader than necessary to be effective in protecting those fair
trial rights.4 Even when a "serious and imminent" threat to a defendant's fair trial rights may
exist, a less restrictive alternative must be chosen when it is available.5

        There has been no showing of a serious and imminent threat to the defendant's Mr trial
rights. Even if such a showing could be made - we contend it cannot « the use of voir dire,
peremptory challenges, and the admonition of the jury could all be utilized instead of restricting
access to the proceedings. This is especially true given that there has been no showing that the
requested limitation of the public's knowledge of the location of the proceedings will be effective
in protecting the defendant's fair trial rights. There has been extensive news coverage, locally,
statewide and nationally of the Anthony case and any potential juror that views or reads the news
has at least some knowledge of the matter. Limiting knowledge of the location of the jury
selection until after it starts will not lessen or mitigate that exposure and will not further the


1
   See e.g. Richmond Newspapers. Inc. v. Virginia, 448 U.S. 555 (1980); Press-Enterprise Co. v. Superior Court of
California, 478 U.S. 1 (1986).
J
  Sarasota Herald-Tribune v. State, 916 So. 2d 904,907 (Fla. 2d DCA 2005).
3
  State of Florida ex rel. Miami Herald Publ'g Co. v. Mcintosh, 340 So. 2d 904,910 (Fla. 1976) (emphasis added). .
4
  Miami Herald Publ'g Co. v Lewis, 426 So. 2d 1,3,8 (Fla. 1982).
s
  See id. at 8.
 Robin S, Berghorn
 March 16,2011
 Page 3

protection of the defendant's Sixth Amendment rights. Accordingly, the proposed Agreement,
with its effective restriction on public access to the Anthony proceedings, is unlawful.
                 The Proposed Agreement Seeks Consent For An Illegal Prior Restraint
       Prior restraints are abhorrent to the First Amendment and the proposed Agreement would
impose an unconstitutional prior restraint. Requesting that the press agree to the prior restraint in
the Agreement in order to obtain information about the location of a public proceeding is
untenable.6
        A stringent three-part test applies to any prior restraint on publication, and requires that a
court determine (1) the nature and extent of pretrial news coverage; (2) whether other measures
would be likely to mitigate the effects of unrestrained pretrial publicity; and (3) how effectively a
restraining order would operate to prevent the threatened danger. A party seeking a prior
restraint comes to the court "with a heavy presumption against [the] constitutionality" of the
restraint, and "before First Amendment freedoms can be abridged, substantive evil must be
extremely serious and the degree of imminence extremely high."
        Here, the three-part test has not and cannot be met. There are other, less restrictive,
measures that would "mitigate the effects of unrestrained pretrial publicity." Such measures
include "searching questioning of prospective jurors" and "emphatic and clear instructions on the
sworn duty of each juror to decide the issues only on evidence presented in open court." Even
where publicity would constitute a "clear and present danger" to a defendant's fair trial rights, a
prior restraint order will not be upheld where other, less restrictive, protective measures were
available.10
        The defendant is entitled to an impartial jury, not jurors that have never heard about her
case. As the U.S. Supreme Court reiterated in Skilling v. 17.5., "[pjrominence does not
necessarily produce prejudice, and juror impartiality . . . does not require ignorance." Florida
courts have long recognized that "[i]t is not required... that the jurors be totally ignorant of the
facts and issues involved       It is sufficient if the juror can lay aside his impression or opinion
and render a verdict based on the evidence presented in court.12

6
  See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 561 (1976) (holding that a "gag" order on the media that
expired when the jury was impaneled nonetheless constituted a prior restraint, and stating that an order postponing
publication should be met with intense skepticism as a "measured that would allow government to insinuate itself
into the editorial rooms of this Nation's press").
7
  Nebraska Press, 427 U.S. at 562-563; see also Times Publ'g, 632 So. 2d at 1074-75.
* Miami-Herald Publ'g Co. v. Mcintosh, 340 So. 2d 904,908 (Fla. 1976); see also Times Publ'g, 632 So. 2d at 1074.
9
  Nebraska Press, 427 U.S. at 564.
10
   Mcintosh, 340 So. 2d at 908-09 (noting that "admonition to jurors and . . . sequestration of the jury" provides a
trial judge with "ample power to insure a fair trial for a criminal defendant without suppressing First Amendment
rights of the news media as regards reporting proceedings").
" Skilling v. U.S., 130 S. Ct. 2896,2914-15 (2010) (emphasis in original).
12
    Dillbeck v. State, 964 So. 2d 95,102 (Fla. 2007) (quoting Irvin v. Dowd, 366 U.S. 717,722-23 (1961); see also
Rolling v. State, 695 So. 2d 278,285 (Fla. 1997) C'To be qualified, jurors need not be totally ignorant of thefectsof
the case nor do they need to be free from any preconceived notion at a i l . . . ."); Bundy v. State, 471 So, 2d 9, 19
(Fla. 1985) ("The mere existence of extensive pretrial publicity is not enough to raise the presumption of unfairness
 Robin S. Berghorn
 March 16,2011
 Page 4

         In the instant case, application of the voir dire process and "emphatic and clear
 instructions" to the jury may be utilized to effectively address any concerns about an unfair jury.
 Such steps would be viable alternatives to the imposition of a prior restraint from publishing
 information about the location of jury selection. The suggested approach of imposing the
 proposed Agreement on the press is not a viable alternative. In highly publicized cases as well-
 known or even more notorious than the Anthony case, Florida courts have not attempted to
 conceal the location of proceedings from the media or the public, relying instead on the
 effectiveness of measures such as a "meticulous jury selection and screening process."13

         Furthermore, as previously noted, the nature and extent of the pretrial news coverage in
 this matter has been extensive, widespread, and national. Media coverage has not been restricted
 to the current venue of the case in Orange County. Instead, potential jurors all over the state of
 Florida have been exposed to repeated coverage by both local and national news agencies.
 Accordingly, preventing the media from reporting on the location of jury selection would not
 further the purported goal of preventing an unfair jury pool. The likelihood that published
 information about the change in venue would have any further effect on potential jurors than
 what intense national news coverage has already had is slim at best. In addition, the
 effectiveness prong of the three-part test cannot be met because if anyone, news organization or
 not, should learn of and publicize the jury selection venue, only those that signed the Agreement
 would be prohibited from disseminating that news. The proposed terms of the Agreement would
 not operate to prevent the perceived danger of an unfair jury.
        For these reasons, the News Organizations respectfully insist that that the proposed
 Confidentiality Agreement not be implemented
                                                        Sincerely,

                                                       HOLLAND & KNIGHT LLP

                                                        fyAA'
                                                       Judith M. Mercier

JMM/tb


 of a constitutional magnitude.); Copeland v. State, 457 So. 2d 1012, 1016 (Fla. 1984) (""Public knowledge alone,
 however, is not the focus of the inquiry on a motion for change of venue based on pretrial publicity. The critical
 factor is the extent of the prejudice, or lack of impartiality among potential jurors, that may accompany the
 knowledge.).
 13
    See Rolling v. State, 695 So. 2d 278,285 (Fla. 1997) (affirming the trial court's denial of a motion for a change in
 venue in a case where the defendant killed five college students and received extensive pretrial publicity, and noting
the trial court's "meticulous" voir dire process); see also Bundy v. State, 471 So. 2d 5,19-20 (holding that the trial
 court did not err in denying Ted Bundy's motion for change of venue or abatement of prosecution, as each selected
juror stated that they would put aside any preconceived opinions); Copeland v. State, 457 So. 2d 1012, 1016 (Fla.
 1984) (holding that even though every member of the jury panel had read or heard something about the crime that
the defendant allegedly committed, the trial court did not err in denying a motion for change in venue where the
jurors said they could disregard previously gained information).
Exhibit C
 1                                IN THE CIRCUIT COURT OF THE
                                  NINTH JUDICIAL CIRCUIT, IN AND
 2                                FOR ORANGE COUNTY, FLORIDA
                                  CRIMINAL JUSTICE DIVISION
 3
     STATE OF FLORIDA,
 4
           PLAINTIFF,
 5                                     CASE NUMBER:   48-2008-CF-15605-O
     vs.
 6                                     DIVISION NUMBER:   99
     CASEY MARIE ANTHONY,
 7

 8
           DEFENDANT./
                                                               ©COPY
 9   EMERGENCY MOTION OF NEWS ORGANIZATIONS TO INTERVENE

10      AND FOR RECONSIDERATION OF IMPLEMENTATION AND

11         ENFORCEMENT OF CONFIDENTIALITY AGREEMENT

12                             BEFORE

13      THE HONORABLE BELVIN J. PERRY JR., CHIEF JUDGE

14

15                             In the Orange County Courthouse
                               Courtroom 12D
16                             Orlando, Florida 32801
                               May 2, 2011
17                             Jean Dexter, CRR, RPR

18

19   A P P E A R A N C E S :
20   JEFFREY ASHTON, ATTORNEY
     LINDA DRANE BURDICK, ATTORNEY
21   FRANK GEORGE, ATTORNEY
     Assistant State Attorneys
22   415 North Orange Avenue
     Orlando, Florida 32801
23   On behalf of the State

24   J. CHENEY MASON,    ATTORNEY
     3 90 North Orange   Avenue
25   Orlando, Florida    32 8 01
     On behalf of the    Defendant
                    Official   Court    Reporter
                           407-836-2280
     1

 2       APPEARANCES   CONTINUED:

 3       JOSE BAEZ, ATTORNEY
         522 Simpson Road
 4       Kissimmee, Florida 34744
         On behalf of the Defendant
 5

 6       JUDITH M- MERCIER, ATTORNEY
         2 00 South Orange Avenue
 7       Orlando, Florida   32801
         On behalf of WOFL, WKMG, Fox 35, et al
 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
 1                 P R O C E E D I N G S

 2        THE COURT:     Let the record reflect that the

 3   defendant is present along with counsel for the

 4   defendant, assistant state attorneys.

 5        The first item we will take up this morning is the

 6   Emergency Motion for News Organizations to Intervene and

 7   for Reconsideration of Implementation and Enforcement of

 8   Confidentiality Agreement.

 9        MS. MERCIER:     May I approach, Your Honor?

10        THE COURT:     You may.

11        MS. MERCIER:     Your Honor, Judith Mercier on behalf

12   of WOFL Fox 35, WKMG, Central Florida News 13 --

13        THE COURT:     Just a second.     Slow it down a little

14   bit for me.

15        Fox 35 --

16        MS. MERCIER:     WKMG, Fox 35.

17        THE COURT:     That's Channel 6?

18        MS. MERCIER:     Yes.     Central Florida News 13.

19        THE COURT:     News 13.

20        MS. MERCIER:    Associated Press.

21        THE COURT:     Okay.    AP.

22        MS. MERCIER:    WPTV-TV.      A number of scripps.

23   WPTV-TV, WFTS-TV, Naples Daily News, Scripps Treasure

24   Coast Newspapers, which are the Stuart News, Ft. Pierce

25   Tribune and the Vero Beach Press Journal.
 1         THE COURT:       Okay.

 2         M S . MERCIER:     Your Honor, w e a r e here o n a n

 3   emergency motion asking that the Court reconsider the

 4   implementation and enforcement of a confidentiality

 5   agreement, urn, that is m y understanding is intended to

 6   b e p u t in place.

 7         These news organizations that I'm representing,

 8   Your Honor, urn, take the p o s i t i o n and believe that the

 9   enforcement implementation of confidentiality              agreement

10   is a n improper restriction of access to t h e proceedings

11   in that it asks that the agreement, in fact, also is an

12   improper prior restraint asking those to sign it, and if

13   y o u sign it, y o u c a n find out where this public

14   proceeding is going to b e .

15        A n d we believe, Your Honor, in the cases that we

16   set forth in o u r m o t i o n and, urn, I have copies of cases

17   if y o u need them, Your Honor.

18        THE COURT:       I have them a l l .

19        M S . MERCIER:     Okay.   A n d so under the Lewis      case,

20   Your Honor, any time there is a n y -- a n y action that is

21   taken to impact and restrict access to a public

22   proceeding, there must be a factual showing and evidence

23   produced to meet a three-part test that's set forth in

24   the Miami Herald Publishing        Company versus   Lewis,

25   426 So. 2d 1, a Florida 1982 case.          A n d that test is
 1    that restricting -- there must be evidence produced and

 2   a finding by the court that restricting public access is

 3   necessary to prevent serious and imminent threat to the

 4   administration of justice; that there are no

 5   alternatives other than a change of venue which would

 6   protect the defendant's right to a fair trial.     Closure

 7   would be effective in protecting the rights of the

 8   accused without being broader than necessary to

 9   accomplish this purpose.     If there is no such showing,

10   there can be no such closure.

11        Now, massive pretrial publicity is not alone

12   sufficient to show a serious and imminent threat to the

13   administration of justice.

14        And there is cases, Your Honor, even where pretrial

15   publicity include publication of inadmissible evidence,

16   the defendant can still receive a fair trial.     There is

17   a case from the Florida Supreme Court, 1988,     Holsworth

18   versus State, 522 So.2d    348.

19        And, Your Honor, there needs to be evidence.     You

20   know, the -- the feared impact on defendant's fair trial

21   rights is severely lessened by the fact that the

22   information that the defendant -- actually, the

23   information that is concerned about publicity has

24   already been extensively put out there.

25       This is a case which has had not just local, not
 1   just state, but extensive national coverage.         And so any

 2   jury that you go to sit in Florida, if these are

 3   individuals that watch the news, they're going to know

 4   about this case.

 5        Your Honor, there are protections that are

 6   appropriate for the court through voir dire, extensive

 7   questioning of the jury --

 8        THE COURT:       How many capital cases, ma'am, have you

 9   tried?

10        MS. MERCIER:       Your Honor, I have not tried any

11   capital cases.    That's not a requirement, Your Honor.

12        THE COURT:       Just answer -- answer the question.

13   How many capital cases have you tried?

14        MS. MERCIER:       I have tried none, no capital cases.

15        THE COURT:       How many capital jury cases have you

16   attempted to select a jury?

17        MS. MERCIER:       I haven't any, Your Honor.

18        THE COURT:       You may continue.

19        M S . MERCIER:     But the news, Your Honor, has been in

20   many capital cases and many times restricted the right

21   of public access.      And whether or not the news media's

22   counsel has tried a murder case is not an appropriate

23   inquiry of the Court to determine whether or not access

24   to a proceeding have been closed.

25        The Florida Supreme Court and the First Amendment
     1   are very clear on public proceedings.         Florida has

 2       public proceedings, Your Honor, and it's not public

 3       proceedings only if you can find us.         There has been

 4       many cases in Florida, high-profile cases, where juries

 5       have been sat --

 6               THE COURT:     Are you familiar with the case   Estes

 7       -versus Texas --

 8               MS. MERCIER:     Your Honor --

 9               THE COURT:     -- cited in one of the cases that

10       you've cited?

11               MS. MERCIER:     I have a vague familiarity,

12       Your Honor; but as I'm standing here, I could not cite

13       the facts to you.        If you would like me to, I can get

14       it --

15            THE COURT:        All right.   Go on.

16            MS. MERCIER:        -- and send it to you.

17            And so, Your Honor, we believe that there has been

18       no showing, there has been no finding that substantiates

19       what the Court is trying to do in essentially closing

20       off the proceedings to the public.

21            I also believe, Your Honor, that -- that the

22       confidentiality agreement requesting that those media

23       entities that want to know where the proceeding is,

24       agreed to a prior restraint that they can't publish any

25       information, can't go there and risk losing media
     1    credentials is improper -- is also unconstitutional and

 2        improper under the Nebraska   Press   case, Your Honor.

 3             THE COURT:    Is there anything in the media

 4       agreement that would prohibit the news media from

 5       publishing the location of the trial if they found it

 6        from the independent source other than this Court?

 7            MS. MERCIER:     The individuals that signed the

 8       agreement, Your Honor.

 9             THE COURT:    There is nothing, ma'am, in that

10       agreement which would prohibit any news station, if they

11       found from independent sources and broadcast the

12       location, they just can't do it based upon what was told

13       by the Court, so there is nothing in there which

14       prohibits any news organization from using whatever

15       sources, whatever means they want to, from finding the

16       location, if they can, and broadcasting it.      So this

17       agreement does not prohibit them from independent

18       sources.

19            The only source that is prohibited is if they sign

20       it and I tell them where the location is.      So let's --

21       let's have the record clear on that.      So it doesn't stop

22       any news station, if they find it out at six p.m. on

23       Sunday or 11 p.m. on this coming Sunday night of their

24       own independent actions from broadcasting as m u c h as

25       they want to.   So let's be clear what the agreement
 1    does.

 2           The only thing the agreement does, if I tell you

 3   you can't use the Court as a source, but if you find it

 4   out by any means necessary other than the Court, you can

 5   do it.

 6           You may continue.

 7           MS. MERCIER:   Appreciate the clarification,

 8   Your Honor, because reading the draft agreement that I

 9   got, it was not clear, so I appreciate that.

10           THE COURT:   It's just a draft.     You also remember

11   that we asked everybody for comments.         Do you recall

12   that?

13        MS. MERCIER:      Yes, Your Honor.     We submitted

14   comments.

15        THE COURT:      Okay.     You may continue.

16        MS. MERCIER:      Okay.    And so, Your Honor, even with

17   Your Honor's clarification of the agreement, we still

18   believe that withholding the information about the

19   location of the public proceedings, which in effect is

20   limiting access, this last-minute -- again, it's a

21   public proceeding, but you have to be able to find us

22   unless you -- unless you agree to this prior restraint

23   of information that's provided to you, we believe is

24   unconstitutional in that there are many cases --

25        THE COURT:      Do those cases - - d o those cases put on
                                                                     10



     1    the obligation of any court to notify the news media of

     2    every case that's going on?          We have at the Orange

 3        County Courthouse hundreds of cases going on today.             We

 4        have a juvenile courthouse w h i c h is located on Michigan

 5        where there are hundreds of cases going on.          We have a

 6        courthouse in Osceola County w h e r e there are hundreds of

 7        cases going on.          We have proceedings that will   commence

 8       today in Ocoee and/or Apopka, and then later on during

 9       the w e e k in W i n t e r Park.   Is there an obligation from

10       the judiciary to normally notify the media of every

11       proceeding?

12                M S . MERCIER:     Your Honor, it's not just the media,

13       it is the public also.           The public and the press should

14       be able to at any point in time find -- find out any

15       case --

16                THE COURT:       Point me to one specific rule which

17       requires the court to p u b l i s h it, docket or anything

18       else, to anybody.

19                M S . MERCIER:     Your Honor, I think that's the whole

20       spirit of the proceedings in Florida, State versus

21       Lewis,     if you are going to close something --

22                THE COURT:       Quote me one case that says that a

23       court     -- Judge Walter Komanski is having criminal court

24       here in the Orange County Courthouse today.           Is he

25       required to publish his docket?
                                                             11



     1        M S . MERCIER:   Your Honor, I should be able to go

 2       into the court docket and look and identify there is

 3       going to be a docket, if there is a trial setting and

 4       the location.    So, yes, Your Honor, I can go into any

 5       proceeding in any state court here in Florida and find

 6       out when a trial is going to be set should I go and look

 7       at a docket.    So whether I'm a member of the public or a

 8       member of the press, I still have that right.

 9            The issue is when you withhold that information,

10       when that information is being withheld, and whether

11       it's this case, a high-profile case, or some other case,

12       you know, whether it's -- you know, Your Honor is

13       familiar with -- with, you know, public access and the

14       laws of public access; and what I'm saying, Your Honor,

15       is it's the actions of trying to not disclose where

16       something is is what the problem is.    That is, in fact,

17       the closure.    It's not -- it's not -- you know, again,

18       it's not as a public if you can find us.    I should be

19       able to go into any courtroom -- not courtroom, but any

20       clerk's office, look at the docket -- not go around in a

21       courtroom and find things, but I should be able to look

22       at a docket and be able to know not the morning of a

23       trial but I'll be able to know days before when a trial

24       is set.

25           Do they have to publish it, Your Honor?     I'm not
                                                          12



 1   going to be able to stand here and point to a case.         I

 2   can certainly look for it.      I don't think that is the

 3   issue.    The issue is, when you try to take a public

 4   proceeding and then close it, in this action of closing

 5   it into not being able to find out where this public

 6   proceeding is going to be, it's unique, Your Honor.       I

 7   haven't found any case like this before.      In the change

 8   of venue cases, no.     There is a number of cases in the

 9   history of Florida, capital cases, high-profile cases

10   that venues have been changed.      No one and no judge has

11   ever taken the position they're not going to identify

12   where the change of venue --

13        THE COURT:     I take it that you've represented the

14   news media on numerous cases?

15        MS. MERCIER:     I have, Your Honor.

16        THE COURT:     How many cases in your career have you

17   seen like this case, the case of the State of Florida

18   versus Casey Anthony?

19        MS. MERCIER:     Your Honor, if you are talking about

20   the publicity, I've seen a number of cases, and I

21   also --

22        THE COURT:     Okay.   Name one.

23       MS. MERCIER:     Your Honor, there was, urn, a number

24   of cases in Fort Lauderdale, Miami, Keys --

25       THE COURT:     Name one.
                                                             13



 1           MS. MERCIER:     Okay.

 2           THE COURT:     Just one.

 3           MS. MERCIER:     I would have to look, Your Honor.

 4           THE COURT:     Okay.   Now --

 5           MS. MERCIER:     I can name a number of cases where

 6   media representative entities, whether -- whether it's

 7   partners of my firm or other people --

 8           THE COURT:     Of those cases, how many -- how many

 9   news analysts has Fox 35 hired for this case?         Do you

10   know?

11        MS. MERCIER:       I don't know, Your Honor.

12        THE COURT:      And what does a news analyst -- these

13   legal analysts, what do they do in these cases?        You

14   represent the news media, they all have a legal analyst,

15   what do they do?

16        MS. MERCIER:       Your Honor, I'm not going to -- if

17   you would like me to put a news analyst on the stand, I

18   can do that.

19        THE COURT:      I'm asking, do you have any idea what

20   they do?

21       MS. MERCIER:        Your Honor, the news media that I

22   represent gathers news and covers the news --

23       THE COURT:       My question is quite specific.    Are you

24   aware of what the legal analyst's role is for the

25   station?    You will agree Fox 3 5 has a news analyst, yes
                                                             14



 1    or no?    It's a simple question.

 2         MS. MERCIER:     I would imagine they may have a legal

 3   analyst.    I couldn't tell you the name of the person as

 4   we sit here.    However --

 5         THE COURT:     Go ahead.

 6         MS. MERCIER:     Is this the evidence you're producing

 7   to -- to substantiate --

 8         THE COURT:     I ask questions; I don't answer them.

 9         MS. MERCIER:     Your Honor, I'm a little confused.

10         THE COURT:     Answer the questions that I ask.     Do

11   they or do they not have a legal analyst --

12         MS. MERCIER:     Your Honor --

13         THE COURT:     -- at Fox 35?     If you don't know, you

14   don't know.

15         MS. MERCIER:     I don't know.    Okay.

16         THE COURT:     Does Channel 6 WKMG have a legal

17   analyst?

18         MS. MERCIER:     Your Honor, I think it's fair to say

19   that a number of the news m e d i a have legal analysts,

20   whether it's WKMG and Fox 3 5 --

21         THE COURT:     That's not the question.    That's not

22   the question I asked, ma'am.      I asked for a specific

23   answer.    Do you or do you not know whether or not

24   Channel 6 has a legal analyst?       Simple question.   Yes or

25   no?
                                                             15



 1         MS. MERCIER:      I can only assume, so I can't answer

 2    that question.

 3         THE COURT:     That's fair.

 4         Does Fox 35 have a website?

 5         MS. MERCIER:     Yes, Your Honor.

 6         THE COURT:     Do they have a special website for the

 7   State of Florida versus Casey Anthony?

 8         MS. MERCIER:     I've seen it on the page.   I don't

 9   know if it's a special website.

10         THE COURT:     Have you ever clicked on it to look at

11   it?

12         MS. MERCIER:     Your Honor, I have seen coverage of

13   this trial on the Fox website.       I cannot tell you if

14   it's a separate website.

15         THE COURT:     Okay.   Contained in Fox 35's website,

16   do you know whether or not every document of discovery

17   has been posted and linked on that website?

18         MS. MERCIER:     I don't know that, Your Honor.

19         THE COURT:     What about WKMG Channel 6?

20         MS. MERCIER:     I don't know that, Your Honor.     Also,

21   Your Honor, that -- that -- that is not something that

22   impacts it.   These are public documents, public -- it's

23   public proceedings.      Public documents can be posted.

24         THE COURT:     Now, it has been reported, and I'm

25   going to ask you, are you aware of these reports that I
                                                            16



 1   was spotted in West Palm Beach last week?        Are you aware

 2   of that?

 3        MS. MERCIER:     I saw something in the Palm Beach

 4   Post, yes, Your Honor.

 5        THE COURT:     Are you aware of the fact that one of

 6   the stations that you represented sent a news truck down

 7   to West Palm Beach and did what was commonly called a

 8   person-on-the-street interview asking individuals have

 9   they heard about this case and what were their thoughts

10   on this case?

11        MS. MERCIER:     I don't have that information,

12   Your Honor.

13        THE COURT:     Okay.     I rarely watch the news because

14   I generally don't get home in time to watch it, but I

15   just happened to watch it that day, and lo and behold,

16   that's what I saw.

17        MS. MERCIER:     Okay.    Your Honor --

18        T H E COURT:   You may continue.

19        MS. MERCIER:     Your Honor, in the jury system you

20   are not - - a defendant is not entitled to a jury that's

21   never heard anything about their case.

22        THE COURT:     I'm quite well aware of that.

23       MS. MERCIER:     A defendant is entitled to a jury who

24   can set aside any preconceived notions they may have,

25   listen to the evidence that is allowed in at the trial,
                                                            17



 1   and to make a fair and impartial decision based on the

 2   evidence that's presented to them.

 3           And so I'm very confident, Your Honor, in

 4   Your Honor's ability to conduct the voir-dire proceeding

 5   to inquire of jurors so that any juror that has -- that

 6   has made a decision already that has been swayed by

 7   anything that they've read, seen, heard or anything,

 8   would be excused from the jury.

 9           And in the case here, there was a change of venue

10   in the Victorino     case which was in Volusia County in

11   2006.     That was -- that was a venue change from Daytona,

12   Volusia, to St. Augustine.       That was known as the Xbox

13   murders --

14           THE COURT:   I'm familiar with it.

15        MS. MERCIER:      -- of a number of people.    So that

16   process, they were able -- in the new venue, they were

17   able to seat a jury.      There was no issue with that.

18        With the case of Michael     Hernandez,   who was a

19   14-year-old who went to school with a knife in his

20   backpack and he killed another student down in South

21   Florida.

22        THE COURT:      In Miami.

23        MS. MERCIER:     Exactly.   That, Your Honor, case came

24   up to Orlando and that case --

25        THE COURT:      I'm quite familiar with that one also.
                                                            18



 1        MS. MERCIER:     -- had tremendous publicity also,

 2   Your Honor.   This is a student going to a school and

 3   killing another student.        And this is an individual, a

 4   young individual, being tried for murder.

 5        THE COURT:     In the Hernandez    case, did they have

 6   web links like they had in this case?

 7        MS. MERCIER:     Sorry, Your Honor?

 8        THE COURT:     Web links.     Did they have on news

 9   stations down in Miami web links?

10        MS. MERCIER:     Did they have web links?    I would

11   have to go and look.        I don't do that.

12        THE COURT:     Okay.

13        MS. MERCIER:    And so there was no -- no failure to

14   disclose the fact that they were coming up to Orlando to

15   have the trial, to select the jury and try the case,

16   which is what they did.

17        And so, Your Honor, there's been extensive media in

18   this case, absolutely; but that alone, the pretrial

19   publicity alone, the fact they're putting public

20   documents on websites where people can access them, that

21   is not enough to justify closure, Your Honor.

22        There has to be a serious and imminent threat to

23   the fair trial rights of the defendant, and, you know,

24   there's been -- there is nothing -- there is nothing in

25   this case, there has been no evidence presented that a
                                                                   19



 1    J u r Y cannot be seated.

 2            I understand that there was an agreement to change

 3    the venue, but I haven't -- I never have seen an order

 4    that set forth a number of things even to get it to the

 5   point of changing the venue.

 6           THE COURT:         Did you review the motion defense filed

 7    for change of venue?

 8           MS. MERCIER:          I reviewed -- I do believe I reviewed

 9   the motion for the change of venue, Your Honor.

10           THE COURT:         Do you take any issue into the

11   allegations that the defense filed in their motion,

12   which the State stipulated to, that, I think, they said

13   that this area here was hostile to Ms. Anthony.               I think

14   they even mentioned people picketing, going to the

15   family's residence.               They had to put police out there to

16   keep the crowds away.              There were news trucks parked out

17   there, basically, 24/7.              Was that experienced in the

18   Hernandez        --   Hernandez    case out of Miami?

19          MS. MERCIER:          There was extensive coverage.

20   Whether or not his parents -- I don't know if he had his

21   parents, whether his parents were, um, you know, subject

22   of m e d i a .    I'm sure they were.       But, you know, any time

23   there is a high-profile case and people are putting

24   themselves in the media to some extent, which -- which

25   you know, the parents in this case have done at
                                                          20



 1    different times throughout the case, you know, you're

 2   going to have different feelings of people.     But that

 3   doesn't necessarily -- that doesn't in and of itself

 4   mean that you can't seat a jury anywhere in Florida

 5   without -- not disclosing where that's going to be.

 6        THE COURT:     Uh-huh.

 7        MS. MERCIER:     So, Your Honor, there's been no

 8   evidentiary showing that whether news entities have a

 9   legal analyst, whether public documents are on a

10   website, that that, in fact, is going to prevent that --

11   with -- that that is a cause to have the jury location

12   in a public proceeding withheld.

13        And if there is all this media that Your Honor is

14   concerned of, well, then, a web link and coverage is

15   beyond the county boundaries of Orange County, Your

16   Honor.   And certainly anyone in South Florida could link

17   on to any of these websites that you've mentioned.        And

18   so when you talk about what -- the restriction and the

19   closure being effective based on what Your Honor is

20   saying and spreading out, even that isn't going to be

21   effective.

22        And so what's being put in place, Your Honor, we

23   think is an impermissible restriction on access.     There

24   are other reasonable alternatives for the Court --

25       THE COURT:    Like what?
                                                            21



 1        MS. MERCIER:      Like I was talking about.

 2   Extensive -- extensive jury questioning on voir dire,

 3   jury questionnaires.

 4        THE COURT:      Let's stop there with voir dire.    What

 5   would you suggest that I do?

 6        MS. MERCIER:      Your Honor, I think as judges do in

 7   high-profile cases, the first thing you do is find out,

 8   of people that have heard of the case, the extent of

 9   what they've heard, and then go through the questioning

10   of what information that they've heard, if there is any

11   particular piece of evidence concerned about that's out

12   there that hasn't been admitted or will not be allowed

13   to be put at trial.      You can inquire on all these kind

14   of issues.

15        You can find out if people have made a

16   predetermined decision, and at that point in time, you

17   can excuse those jurors.

18        THE COURT:      Okay.    Have you ever thought about what

19   things help people make predetermined decisions?        You

20   are exactly right.     A person is not disqualified because

21   they've heard and read about the case.

22       Have you ever considered one of the factors that go

23   into people making predetermined decisions?

24       M S . MERCIER:    I'm    sure there are many different

25   factors that I would inquire on, Your Honor, but the
                                                           22



 1   question is to the juror at the end of the day, are you

 2   able to set aside -- are you able to set aside what you

 3   heard outside of this courtroom and just make a decision

 4   based on the information that's presented to you during

 5   the trial?     That's -- that's the key question,

 6   Your Honor.    And so jurors may have a predetermined,

 7   whether they're married to an attorney or they know

 8   attorneys or they know police officers or they know

 9   somebody that's lost a child, whatever the situation is,

10   where people are coming in.       Just because they have a

11   thought coming into the jury room doesn't mean they

12   couldn't set aside what they have, and that's the key

13   issue, Your Honor.

14        And I have total confidence and faith that you will

15   be able to find individuals who are not -- and through

16   the questioning of counsel, who cannot be fair and

17   impartial throughout this proceeding and shouldn't be on

18   the jury.    There is no issue there, Your Honor.

19        THE COURT:       What is the next thing I would have in

20   my arsenal besides what you are suggesting that I use?

21        MS. MERCIER:       Your Honor, already -- well, as for

22   the --

23        THE COURT:       Don't they mention something about a

24   continuance?

25        M S . MERCIER:     If -- if a -- a continuance is an
                                                           23



 1    option, Your Honor.

 2         THE COURT:     Okay.   Now, assume for the moment that

 3   we go to a location and we make an attempt and we cannot

 4   get a jury because of extensive pretrial publicity, and

 5   before I can reset this, Mr. Mason and Mr. Baez, who are

 6   quite-able counsel, file a motion asking that this case

 7   be continued for a period of six months to a year to let

 8   pretrial publicity die down, would that not be a remedy?

 9         MS. MERCIER:    That's something that Your Honor has

10   the ability to do should you choose.

11         THE COURT:    Would you not agree that the adversary

12   system of justice that we have here is memory dependent?

13        MS. MERCIER:     Yes, Your Honor, with eyewitness

14   testimony and things like that.

15        THE COURT:     And memories are not like fine wine.

16   They don't get better with age.

17        MS. MERCIER:     I don't know about fine wine.

18   Memories usually with age may not be better.

19        THE COURT:     And are you familiar with   Crawford

20   versus Washington    --

21        MS. MERCIER:     I'm not, Your Honor.

22        THE COURT:     -- which basically knocks out former

23   testimony exception and also that in Florida, in

24   criminal cases, you can't use the deposition of a

25   witness if they should happen to die.      So if one of the
                                                              24



 1    State's key witnesses dies and one of the defense's key

 2   witnesses dies, that testimony is forever lost.

 3        So that's one of the things that you dangle since

 4   Ms. Anthony was indicted in this case, what, October of

 5   2008, I believe, and this is 2011.

 6        You may continue.     So continuance is one thing.          So

 7   what's the next one?

 8        MS. MERCIER:     I'm just going to keep coming back to

 9   the voir-dire process because I think that's the key

10   one, and it's -- it's within your purview of doing that.

11        I understand, you know, you have the discretion

12   whether to do a continuance or not, and so that's your

13   decision.     I haven't argued -- come here and argued

14   there has to be a continuance.     That's an option you

15   have to consider in the less -- you know, during --in

16   applying the Lewis   test, in options that are available

17   to you, and, you know, when you're talking about -- you

18   mention memory, Your Honor, memory of witnesses and

19   things like that.    Well, memory of the public also,

20   Your Honor.    And, you know, people coming in, unless

21   they're -- they're looking at information on the case,

22   Anthony case, every single day --

23        THE COURT:    You remember Estes   versus   Texas   there

24   is a -- the United States Supreme Court said that a fair

25   trial is the most fundamental of all freedoms.
                                                                25



 1           MS. MERCIER:      Yes, Your Honor.

 2            THE COURT:    Do you agree with that?

 3           MS. MERCIER:      Yes, Your Honor.   And -- and what I

 4   was trying to get to, Your Honor, you are talking about

 5   memory.      People don't necessarily -- people in the

 6   public don't necessarily retain everything that they

 7   hear.     So just -- you were talking about a concern with

 8   the trial, a continuance of witnesses and things like

 9   that.     People that you pull in from the public, they may

10   have read something about Casey Anthony.            They may have

11   read something about Caylee Anthony.          They may have read

12   something about the case that sitting here they may not

13   remember what they heard or saw or heard or read, they

14   may not have retained it.

15           The assumption and what I'm saying, Your Honor, is

16   that the voir-dire process, which I believe is the best

17   option to be able to weed out those people who cannot be

18   fair and impartial, is at your disposal, Your Honor, and

19   whether or not you disclose that information where this

20   public proceeding is prior to the trial and jury

21   selection, which is set on Monday, a week from today --

22           THE COURT:     Are you familiar with the case of the

23   State    of Florida    versus   Mr. John Muggins?

24           MS. MERCIER:     No, Your Honor.

25           THE COURT:     Mr. Huggins was indicted, tried and
                                                              26



 1    convicted of the murder of Carla Larson.         We went to

 2   Jacksonville, Florida, picked a jury.          Mr. Huggins was

 3   convicted and sentenced to death.          It was set aside by

 4   me.   We brought it back here upon the defense's request;

 5   and since venue and indictment was alleged in Orange

 6   County and Osceola County, the defendant was selected to

 7   be tried in Osceola County, and we went to jury

 8   selection there and spent about two or three days and

 9   couldn't get a jury.

10         And that case had, what you said, extensive

11   pretrial publicity here.      But that case lacked some of

12   the things in this particular case.          There weren't

13   websites devoted to that case.          There were not bloggers

14   devoted to that case.      Stations did not hire legal

15   analysts to commentate on that case.         We ended up having

16   to go to Hillsborough County where that case was finally

17   tried.   So sometimes even voir dire does not work.

18         You may continue.

19         MS. MERCIER:     In the Huggins    case, it sounded like

20   you said there was a jury sat in Jacksonville and that

21   conviction was overturned, and so I don't know the facts

22   of that, but I do know that that was not disclosed as

23   that the case was going to be in Jacksonville, so --

24         THE COURT:     I think -- I think out of the jurors

25   that we questioned, if memory serves me correctly, there
                                                         27



 1   were only two or three that knew about him being

 2   convicted, but they all knew about what happened out

 3   there near Walt Disney World somewhere between Orange

 4   and Osceola County, and they all had an abiding

 5   conviction based upon what they had read, watched in

 6   news accounts that he was guilty, and there was nothing

 7   that would change their minds, so much, that after

 8   spending two or three days, both the State and the

 9   defense threw in the towel.

10        You may continue.

11        MS. MERCIER:    Well, Your Honor, you know, the

12   decision has been made that the jury is going to be

13   selected in some other location.    And I don't believe

14   there's been an evidentiary showing sufficient to

15   restrict the access to a public proceeding.    And I would

16   ask that Your Honor reconsider the implementation and

17   enforcement of this confidentiality agreement and that's

18   what I'm requesting on behalf of news organizations,

19   Your Honor.

20        THE COURT:    Now, I am told by my staff that WFTV

21   Channel 9 and WDBO Radio have indicated that they are

22   willing to sign the confidentiality agreement.    Your

23   argument talks about the public's right to know and

24   participate in the jury-selection process and to know

25   what's going on.    So explain to me that if -- and In
                                                         28



 1    Session.   Explain to me that if WFTV Channel 9 is there,

 2    In Session is there, and WDBO Radio is there, how is the

 3   public shut out?    How are they forbidden from knowing

 4    if -- I think WFTV Channel 9 has widespread broadcast

 5   just like your clients.     I think that In Session has the

 6   same.   And WDBO is a radio station.    And wherever we go,

 7   it won't take an hour to an hour and a half for the

 8   local media to get there and get set up, so -- and the

 9   courtroom will be open.     Explain to me how the public is

10   then shut out if you have a station that --or two --

11   that may believe in the balancing that doesn't cut them

12   off, digging and finding out what they want to find out,

13   and if they can find it out independently, they can

14   broadcast it, how is the public denied, as you would

15   say, their right to know if you have at least three

16   media individuals there?

17        MS. MERCIER:     Your Honor, the public and the right

18   of access to the public that we've been talking about is

19   not dictated and the law in Florida is not dictated

20   whether one media entity or another will agree to prior

21   restraints that they can get the information.    That's

22   not the law.   And so - - that they're willing to agree

23   that they'll lose credentials and they can choose to do

24   whatever they want.    It doesn't change the law in the

25   state of Florida.   You know, and just -- I'm coming with
                                                              29



 1    the analogy of parties agreeing to close the

 2   proceedings, everybody agrees to close the proceedings,

 3   we just get to close it.       No, that's really clear you

 4   can't do that.       And so the fact that a media entity will

 5   agree that you can -- you can -- I'll agree to a prior

 6   restraint, Your Honor, if you give me the information

 7   first and so I'll agree not to publish it.        That doesn't

 8   change -- that doesn't change the law, Your Honor.            That

 9   doesn't change the law of the fact that that information

10   with -- that you are withholding access to a public

11   proceeding, information about, or that public proceeding

12   where that public proceeding will be and except to these

13   media entities that will sign and agree to a prior

14   restraint, that, Your Honor, is what I am saying is

15   unconstitutional.      It's -- it's a way to try to, you

16   know, get around the laws of access in Florida that I

17   think is impermissible.

18        THE COURT:      Okay,   And you are talking about

19   access.   A r e you familiar with the media committee     that

20   I had formed through court      administration?

21       MS. MERCIER:       I have -- I am familiar with there is

22   a media committee.      I have not attended.

23       THE COURT:       And are some of the people that you

24   represent on this media committee?

25       M S . MERCIER:     I would expect that they are.
                                                            30



 1        THE COURT:     Okay.   Do you know how many seats are

 2    in the Roger Barker Courtroom on the 23rd floor of this

 3    courthouse?

 4        MS. MERCIER:     I know that's the largest courtroom

 5   that there is.

 6        THE COURT:     There are a hundred - - there are a

 7   hundred public seats, and although I have not fully

 8   ratified it yet, would you care to guess how the media

 9   committee has decided to allocate those seats versus

10   media versus the public since this judge here shouldn't

11   have public and media's access?      Did he tell you how

12   many seats they've allocated or recommended to me to be

13   allocated versus media versus public?

14        MS. MERCIER:     I don't have that information.     And,

15   Your Honor --

16        THE COURT:     Would it surprise you that at least

17   more than half of them they've recommended be allocated

18   to the news media?     Would that surprise you?

19        MS. MERCIER:     It would surprise me, Your Honor.

20        THE COURT:     Okay.   And so when you talk about

21   denying, quote. First Amendment rights, and I'm told

22   that we're up to close to 700 requests for media

23   credentials, and we expect, I'm told from security, to

24   expect, quote, protesters, and I've had to designate

25   zones out in the front of the courthouse, free-speech
                                                           31



 1    zones, for protesters.

 2        You can continue.

 3        MS. MERCIER:       Well, Your Honor, I've made the

 4   points that I want to make.       You know, and as I said, I

 5   have total confidence in Your Honor's ability to seat a

 6   jury in this case.       The issue that we have is this

 7   particular issue with respect to not disclosing, in

 8   fact, withholding the location of this public

 9   proceeding, and I ask that Your Honor reconsider the

10   implementation and enforcement of this confidentiality

11   agreement.

12        THE COURT:     Thank you very much.

13        MS. MERCIER:       Thank you, Your Honor.

14        THE COURT:     Mr. Baez, on behalf -- Mr. Baez and

15   Mr. Mason, on behalf of your client, Ms. Anthony?

16        MR. BAEZ:    We have nothing further to add,

17   Your Honor.

18        THE COURT:     You agree with her?

19        MR. BAEZ:    No.

20        THE COURT:    Mr. Baez, let me ask you a few

21   questions, sir, if you don't mind.

22       MR. BAEZ:     Yes, sir.

23        THE COURT:    Did you file a motion for change of

24   venue in this case?

25       MR. BAEZ:     Yes, we did.
                                                              32



 1           THE COURT:    Why?

 2           MR. BAEZ:    Because we felt that beyond the

 3   publicity, there was a hostile environment towards the

 4   defendant in this case.

 5           THE COURT:    In your motion, did you file exhibits

 6   and attachments outlining the pretrial publicity in this

 7   case?

 8        MR. BAEZ:       Yes, we did, sir.

 9        THE COURT:       And can you give me some examples of

10   what you attached to your motion?

11        MR. BAEZ:       We attached various examples from

12   various media outlets, including the local television

13   channels, television -- the newspaper coverage from the

14   Orlando Sentinel, as well as a study conducted by an

15   independent resource center that actually monitors media

16   activity, and that indicated the media activity in

17   certain jurisdictions as it relates to this case.

18        THE COURT:       Okay.   Thank you, sir.

19       MR. BAEZ:        Thank you.

20        THE COURT:      Does the State of Florida have anything

21   it would like to say in regards --

22       MS. DRANE BURDICK:        We do not, Your Honor.

23   Thank you.

24       THE COURT:       This Court has spent a little bit more

25   than 20 years presiding over various cases, cases that
                                                                 33



 1   have generated pretrial publicity such as the case of

 2   the State of Florida        versus   John Huggins,   the case of

 3   State     of Florida    versus   Jermain Lebron and the case of

 4   the State     of Florida    versus   Thomas Gudinas.

 5           All three of those cases involve venue changes.

 6   This Court has also been involved in other cases which

 7   had extensive pretrial publicity that were held here and

 8   the Court, as counsel pointed out, went through the

 9   voir-dire process.

10           As a matter of fact, I even denied motions for

11   change of venue, attempted to pick a jury and tried to

12   be successful.

13           The one thing that I disagree with counsel on, that

14   extensive pretrial publicity is a disservice to this

15   case.     In my 31 years in this system, I have never,

16   never seen a case that has garnered as much publicity as

17   this case.     This case has amassed extraordinary and

18   substantial media coverage never seen in the history of

19   this state.

20           Every local station has at least one legal analyst,

21   some have two.         There has been a request from every

22   national media outlet known to man.          This Court has

23   granted numerous motions to intervene on behalf of the

24   news media when someone attempted to, quote, shut their

25   access.     But this Court has a duty to see that the
                                                                   34



     1   defendant in this case, Casey Anthony, has a right to a

     2   fair trial.

 3             The Constitution of the United States and the

 4       Constitution of the State of Florida says that every

 5       defendant is presumed innocent until proven guilty.

 6       Because of the extraordinary pretrial publicity in this

 7       case, this Court at the request of the defense in

 8       concurrence w i t h the State of Florida, was forced to

 9       take away a right that every citizen h a s , that is, to be

10       tried by a jury of their peers in the county in which

11       the offense occurred, Orange County, Florida.          Because

12       of this, this Court will have to travel to someplace in

13       the state of Florida in hopes of selecting a jury, one

14       that I'm not naive enough to believe that we will not

15       encounter people who may not have heard of this case,

16       but what I hope we're able to find is a jury that has

17       not b e e n so saturated w i t h news m e d i a that have not gone

18       on and read every document, that have not listened to

19       the local news accounts by legal analysts dissecting and

20       analyzing everything from the judge, prosecutor, and the

21       defense and the defendant.

22            Counsel for the news media will say that I need to

23       conduct an evidentiary hearing.       This Court will take

24       judicial notice of the following, and if I'm wrong,            I'm

25       wrong, and the Fifth District Court of Appeals will tell
                                                         35



 1   me so; and if that's the case, then I will delay this

 2   case and do an evidentiary hearing.    And I suspect at

 3   that time the defense will probably file a motion to

 4   continue, which I will hear.    It doesn't take a rocket

 5   scientist to figure out what they would be asking for is

 6   a delay in this case which will be followed by a gag

 7   order given to parties not to talk to anyone and,

 8   perhaps, not to release any more documents during the

 9   cooling-off period.

10          The Court specifically finds that the limitation on

11   access, that is, not being able to.publish the location

12   to simply to prevent what has already happened to a

13   certain degree, someone going to a location doing a

14   person-on-the-street interview and an oversaturation in

15   that particular area of news accounts that will run and

16   run.

17          The question is asked, what purpose do you want to

18   know before time?    If you find out the afternoon and

19   you're able to go there that evening and set your trucks

20   up and be there, what purpose is it?    Simply to publish

21   it, to increase ratings, to broadcast insatiably and run

22   stories about the makeup of that particular location

23   without any consideration or due regards for the

24   defendant's due process rights to a fair trial.    If this

25   Court would announce beforehand without any restraints,
                                                           36



 1    this Court, based upon its 31 years of experience, based

 2   upon the record that was presented here on the motion of

 3   change of venue, and based upon I don't live in a box,

 4   while I don't necessarily watch news accounts, I do look

 5   at them from time to time, find that there is a serious

 6   and imminent threat to the administration of justice in

 7   this case, that is, the right of Casey Anthony to

 8   receive a fair and impartial trial in this particular

 9   case.

10           This case has involved legal analysts, bloggers,

11   extraordinary media coverage, man-on-the-street

12   interviews, and let's face reality, we live in an age of

13   24-hour news coverage.

14           The Court also finds that based upon what this

15   Court knows, that there are no other alternatives to

16   this.    We have changed venue for the purpose of jury

17   selection.    Great expense to the taxpayers of the great

18   state of Florida who are going through extraordinary

19   budget cuts, preliminary calculations show at this point

20   it will cost a minimum of $360,000 to provide security,

21   house, feed, and the jury stippen.    That does not

22   include all of the other expenses.

23       The media talks about voir dire.     Yes, voir dire

24   can cure some ills, but in this Court's experience, it

25   is hard to unring a bell once that bell has sounded.
                                                             37



     1         This Court based upon all of the media coverage,

 2       and if it even rises to any level similar, 40 percent of

 3        the coverage in this area translates to the new area,

 4       then this Court feels that jurors will be totally

 5       affected.     The method to this Court's madness is the

 6       Court wants to get a set number of individuals into a

 7       jury room and instruct them about not reading, watching,

 8       or listening to any news accounts.    Do not Google, do

 9       not do any internet searches and give them instructions

10       so that they will be forewarned.    It is only human

11       nature when someone starts generating press, people

12       start talking and people start searching.

13            Unfortunately, we have something in this society

14       called the internet, and there are Google searches and

15       now there are Bing searches, and you just simply put in

16       key words and everything and anything comes up.

17            Admonishments to a jury only works when you get a

18       chance to get them before they have been tainted.      The

19       Court specifically finds that admonishments will not

20       work if they have already been tainted.

21            Due process requires that the accused receive a

22       fair trial by an impartial jury free of outside

23       influences.    Given the effect of this modern age of news

24       gathering and given the effect that this news coverage

25       of this case has been unprecedented in the history of
                                                        38



 1   Florida, maybe even dwarfed the coverage that was given

 2   to O.J. Simpson, that this Court feels that the effect

 3   of pretrial publicity, if allowed to start in another

 4   location prior to jury selection, will so taint the mind

 5   of jurors that this Court must take this strong, limited

 6   measure of balancing the right to know.

 7          This Court's media agreement is limited in scope.

 8   One, it does not prohibit or stop the news media by

 9   independent resources, which they use day in and day out

10   together, and publish anything that they get on their

11   own.    The only thing that this order does is, one, if

12   they get it from the Court, then they're not allowed to

13   broadcast that until eight a.m. to give those jurors

14   time to get into the courthouse.    If they find it out on

15   their own, they are free to do whatever they want to do.

16          This Court has balanced the interests of a free

17   press and a free public to know what's going on in the

18   four corners of this trial, but the bottom line is, when

19   balancing those interests, the. interests of the

20   defendant is Casey Anthony comes first.    Therefore, the

21   motion filed on behalf of the news organizations listed

22   entitled Emergency Motion of News Organizations to

23   Intervene and for Reconsideration of Implementation and

24   Enforcement of Confidentiality Agreement is hereby

25   denied.
                                                            39



 1         The court reporter is hereby ordered to forthwith

 2    transcribe these proceedings.       Of course, they will have

 3   to pay for them, Madame Court Reporter; and if they want

 4   it on an expedited basis, it will be paid for on an

 5   expedited basis.

 6        So you can seek your relief in the Fifth there, the

 7   Fifth District Court of Appeals.

 8        MS. MERCIER:     Your Honor?

 9        THE COURT:     Yes, ma'am.

10        MS. MERCIER:     Since I haven't seen the final draft

11   of the confidentiality agreement, may I have that be

12   made part of the record?

13        THE COURT:     If it's ready.

14        MS. MERCIER:     Thank you, Your Honor.

15        THE COURT:     I will -- I have -- let me -- you know,

16   everyone has been waiting to know when I'm going to rule

17   on this last motion, okay?     It is a very complicated

18   record-intensive motion, and the Supreme -- I'll give

19   you an example.     The Supreme Court last -- I think it

20   was last Friday, came out with an earth-shattering

21   decision, so to speak, dealing with dogs, which we read,

22   and even though I have always thought in reading all the

23   cases together that reliability was a part of it.         It

24   added some nuances that we had to consider.       These

25   issues are very complicated and balancing that and then
                                                          40



 1   balancing the distractions with this and that, I had to

 2   read all of this, deal with, quote, media -- trying to

 3   define what media is, and going over various drafts of

 4   that with staff, and then trying to complete the order,

 5   and then the bottom line is going back and

 6   re-researching to make sure somebody else has not

 7   entered some decision somewhere else.      So, hopefully, I

 8   will have time to put my blessings on that final

 9   confidentiality agreement, and I will make it a priority

10   to get for you today so you can get a copy of it.

11        MS. MERCIER:     Thank you, Your Honor.

12        THE COURT:     But the order will be done when it's

13   done.    And there are other nuances that must be done.

14        Okay.    Did any of you schedule any motions for

15   today?

16        MS. DRANE BURDICK:     No, sir.

17        THE COURT:     Mr. Baez?

18        MR. BAEZ:     I was made aware that Your Honor had

19   some issues with some of the motions for transcription

20   services, but --

21        THE COURT:     Let me ask you that.   There was some

22   request for video.    Are you wanting them to transcribe

23   the video visits?

24       MR. BAEZ:     What we ended up doing is transcribing

25   them at our own expense, so we've withdrawn that portion
                                                                41



 1   of the motion.

 2          THE COURT:     Okay.    Because the reason I ask, and I

 3   had offered to hear it last week, was because I was not

 4   sure whether or not there was -- I knew y o u get the

 5   transcribed depositions, but I don't know whether or not

 6   taxpayers p a y for just really transcribing the videos.

 7   A lot of that would have hinged o n whether or not you

 8   were introducing those where we require that a

 9   transcript be submitted w i t h it a l s o .    A n d that was what

10   I wanted to ask.

11          MR. BAEZ:    We -- we realize that it was in the gray

12   area, so being that we're so short in time for trial, we

13   just went and ahead and paid for it.

14          THE COURT:    That's why I asked.       I told you you

15   could have come over last week and we could have taken

16   care of that.

17          MR. BAEZ:    Y e s , sir.

18          THE COURT:    There is some housekeeping matters that

19   we need to take up with counsel and the defendant in the

20   Ju^y   room.

21          MR. BAEZ:    Yes, sir.

22

23

24

25
                                                                    42




     1                       C E R T I F I C A T E

 2

 3

 4       STATE OF FLORIDA:

 5       COUNTY OF ORANGE:

 6            I, Jean Dexter, CRR, RPR, Official Court

 7       Reporter of the Ninth Judicial Circuit of Florida,

 8       do hereby certify, pursuant to Florida Rules of Judicial

 9       Administration 2.535(h)(3), that I was authorized to and did

10       report in stenographic shorthand the foregoing proceedings,

11       and that thereafter my stenographic shorthand notes

12       were transcribed to typewritten form by the process

13       of computer-aided transcription, and that the

14       foregoing pages contain a true and correct

15       transcription of my shorthand notes taken therein.

16

17            WITNESS my hand this         day of

18       2 011, in the City of Orlando, County of Orange,

19       State of Florida.

20

21

22
                                            Jean Dexter, CRR, RPR
23

24

25
Exhibit D
                                                   IN THE CIRCUIT COURT OF THE
                                                   NINTH JUDICIAL CIRCUIT IN AND
                                                   FOR ORANGE COUNTY, FLORIDA

                                                   CASE NO. 2008-CF-
 STATE OF FLORIDA,

              Plaintiff,

v.

CASEY MARIE ANTHONY,

              Defendant.
                                   __/


                   ORDER DENYING EMERGENCY MOTION
                 OF NEWS ORGANIZATIONS TO INTERVENE
              AND FOR RECONSIDERATION OF IMPLEMENTATION
           AND ENFORCEMENT OF CONFIDENTIALITY AGREEMENT

       This matter came before the Court on May 2,2011, for consideration of this

Motion, filed on April 28, 2011, by counsel for WOFL Fox 35, WKMG, WPTV-TV,

WFTS-TV, Naples Daily News, Scripps Treasure Coast Newspapers (Stuart News, Ft.

Pierce Tribune, and Vero Beach Press Journal), Central Florida News 13, and The

Associated Press.

       It is hereby ORDERED AND ADJUDGED that the Motion is DENIED for the

reasons set forth on the record. While the Court would prefer entering a more detailed

order, due to the limited time parameters involved in this case, that is simply impossible.

A transcript of the May 2, 2011, hearing is incorporated into this Order by reference.



                                         Page 1 of 2
       DONE AND ORDERED in chambers at Orlando, Orange County, Florida, this

 2nd day of May 2011.




                                               BELVIN PERRY,
                                               Chief Judge


                                 Certificate of Service

      I certify that a copy of the foregoing Order Denying Emergency Motion of News
Organizations to Intervene and for Reconsideration of Implementation and Enforcement
of Confidentiality Agreement has been furnished by electronic mail and by U.S. Mail or
hand delivery this 2nd day of May, 2011, to the following:

• Linda Drane Burdick, Jeffrey L. Ashton, and Frank George, Assistant State Attorneys,
415 North Orange Avenue, Orlando, Florida 32801

• Jose Baez, Esquire, The Baez Law Firm, 522 Simpson Road, Kissimmee, Florida 34744

• J. Cheney Mason, Esquire, J. Cheney Mason, P.A., 390 North Orange Avenue, Suite
2100, Orlando, Florida 32801

• Ann Finnell, Esquire, Finnell, McGuiness, Nezami & Andux, P.A., 233 East Bay Street,
Suite 601, Jacksonville, Florida 32202

• Judith M. Mercier, Esquire, Holland & Knight, LLP, Attorney for News Organizations,
200 South Orange Avenue, Suite 2600, Orlando, Florida 32801




                                      Page 2 of 2
Exhibit E
                                                  IN THE CIRCUIT COURT OF THE
                                                  NINTH JUDICIAL CIRCUIT IN AND
                                                  FOR ORANGE COUNTY, FLORIDA

                                                  CASE NUMBER 2008-CF-15606

STATE OF FLORIDA,
    Plaintiff,
v.

CASEY MARIE ANTHONY,
    Defendant.


                   ORDER ON MOTION FOR CHANGE OF VENUE

       This matter came to be heard on May 10, 2010 on the Motion for Change of Venue

filed May 4, 2009, and Amended Motion for Change of Venue, filed September 17, 2009.

The State waived the presentation of evidence regarding the need for a change of venue

and stipulates that a change is appropriate, but did not agree to the defense request for

venue to be changed to Dade County, Florida. Both sides are now in agreement that the

jury will be sequestered.

       It is hereby ORDERED AND ADJUDGED:

       1. Having considered the comments of counsel, the Court finds that a change of

venue is necessary because it is likely that a fair and impartial jury cannot be impaneled in

Orange County, Florida, and shall give priority to any county which closely resembles the

demographic composition of Orange County, Florida. See §910.03(2) and (3), Fla. Stat.

Therefore, the Motion will be GRANTED at the appropriate time and the Court will enter

a supplemental Order.
       2. Venue will be changed solely to select the jury. The exact county and judicial

circuit in which selection will take place will be determined and announced at a later date.

       3. Upon completion of jury selection, the jurors will be transported to Orange

County, where they will be sequestered and housed at an undisclosed location.

       DONE AND ORDERED in chambers at Orlando, Orange County, Florida this

10th day of May 2010.




                                                 BELVIN PERRY, JR.
                                                 Chief Judge

                                  Certificate of Service
                                                                            0'
       I certify that a copy of the foregoing Order on Motion for Change of Venue has

been provided this    / / i n day of May 2010 to the following:

• Linda Drane Burdick, Jeffrey L. Ashton, and Frank George, Assistant State Attorneys,
415 North Orange Avenue, Orlando, Florida 32801

• Jose Baez, Esquire, The Baez Law Firm, 522 Simpson Road, Kissimmee, Florida 34744

• J. Cheney Mason, Esquire, J. Cheney Mason, P.A., 390 North Orange Avenue, Suite
2100, Orlando, Florida 32801

• Andrea Lyon, Esquire, Director, Center for Justice in Capital Cases, DePaul University
College of Law, 1 East Jackson Boulevard, Chicago, Illinois 60604

• Linda Kenney Baden, Esquire, 15 West 53rd Street, Suite 18B, New York, New York
10019

                                                                  1
                                                                    a
                                                Judical Assistant     f=-

								
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