Florida A.G. Plans to Ask Supreme Court to Block Media Access to Some Evidence in Carlie Bruscia Case

Just days after a judge finally agreed to allow the media to see evidence in the just completed trial of Joseph Smith for killing 11-year-old Carlie Bruscia, Florida’s Attorney General announced he plans to ask the U.S. Supreme Court to prevent that access. Charlie Crist says the evidence is a violation of victims’ privacy and also of the state’s Earnhardt law, passed after the death of race car driver Dale Earnhardt Sr. The 2nd Circuit Court of Appeal allowed the media to examine the evidence, reversing a lower court ban and the Florida Supreme Court has upheld that ruling.

“The Sarasota Herald-Tribune, Tampa Tribune, WFLA-TV News Channel 8, and The Herald (the Media) petition this court to review an order entered by the trial court that excludes the press from viewing and inspecting crime scene photographs, crime scene videotapes, and autopsy photographs that were admitted into evidence in open court during the criminal trial of Joseph P.  Smith for the murder of Carlie Brucia. The order actually prevents all members of the public from viewing these exhibits. We conclude that the statutes relied upon by the trial court to bar examination of this evidence by the Media do not apply to these exhibits that have been formally introduced into evidence in a pending criminal trial. Instead, the trial court was required to apply the analysis set forth in Florida Rule of Judicial Administration 2.051(c), which essentially codifies the holdings in Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), and Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982). Under that analysis, we conclude that the four members of the Media who have asked to view the evidence have been improperly excluded from viewing it.

We emphasize that we are not holding that the Media is entitled to copies of this evidence or to publish it. The Media has not sought that relief and does not suggest that it has any interest in seeking that relief. We also emphasize that we are not holding that the trial court must make this evidence generally available for easy viewing by large numbers of people. Finally, our holding is limited to exhibits actually introduced into evidence. We have not been asked to determine any issue concerning exhibits that may have been identified but not admitted for use and examination by the jury, or concerning documents that were disclosed earlier in these proceedings and not used for any purpose during the trial.

First, the trial court initially ruled orally on this matter in open court. Rule 9.100(d) permits review of orders excluding the press whether oral or written. This court, however, had no official transcript of proceedings when it received the petition. Moreover, some reported decisions have drawn fine distinctions between issues that can be reviewed under rule 9.100(d), as compared to review by common law certiorari….We cannot review an oral ruling by certiorari. Accordingly, we ordered the trial court to render an expedited written order in this case.

Second, the Media consists of members of the press. Florida Rule of Appellate Procedure 9.100(d) gives this court authority to review orders excluding the public as well as the press. It is arguable that the trial court could place greater or different restrictions on members of the public who wished to review these exhibits merely out of curiosity and not for reasons related to freedom of the press. Accordingly, we have limited our holding to the Media before this court. We will review an order excluding the public if and when a member of the public seeks that review.

Finally, the Media assumes that our standard of review under rule 9.100(d) is comparable to the limited review we provide in a common law certiorari proceeding. Rule 9.100(d) is incorporated into the rule of appellate procedure that governs original proceedings because the drafters of the rule wished to provide the expedited review suggested by Justice England’s dissent in English v. McCrary, 348 So. 2d 293, 300 (Fla. 1977). The Media has no right to a direct appeal from a subsequent final order entered by the trial court in this case. As to the Media, this order is arguably a final, appealable order. Because our outcome is not affected by the standard of review in this case, and because we must expedite this opinion, we do not further discuss the appropriate jurisdictional basis and standard of review for an order reviewed under rule 9.100(d).”

(Sarasota Herald-Tribune v. State, 2005 Fla. App. LEXIS 18464)(Opinion filed Nov. 22, 2005)

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