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On April 14 Alvarez's prior restraint motion came before trial judge W. Thomas Spencer. Alan Rosenthal, Telemundo's attorney, wasted no time in conveying his sentiments to the court. "This is unprecedented in 60 years of American jurisprudence to enter an order such as is being sought here today," he huffed. "This is an absolutely improper proceeding in an attempt to harass and intimidate a news agency."
Despite this salvo, Telemundo's Vargas was called to the stand. Vargas acknowledged that he knew Alicia L centspez was mentally disturbed and that he had never attempted to contact her lawyer. But he stressed that the defendant had signed consent forms both from his station and from the Dade Department of Corrections.
Corrections officer Gary Gourdet, who was present during the interview, also took the stand. He noted that he had specifically asked L centspez if she wanted to consult her attorney: "This woman told me pointblank that she did not need her lawyer to be present because every time she calls her lawyer, she could never get in touch with her lawyer." Gourdet conceded he was unaware L centspez's statement could be used against her later, but he insisted it was "up to the prisoner to contact her attorney," not the Department of Corrections.
That claim, public defender Manny Alvarez pointed out, appears to contradict the department's own regulations, which state: "In the case of unsentenced inmates, the attorney or assistant public defender representing the inmate must also sign the Media Consent Form. An option may be to telephonically advise the attorney of record of the request for the interview in lieu of a signed consent form."
The final witness was Lazaro Garcia, the court-appointed psychologist who had evaluated L centspez's mental condition for the Public Defender's Office. On the basis of a two-hour October interview, Garcia testified that L centspez exhibited the traits of a schizophrenic and that she had apparently spent time in Manhattan's Bellevue psychiatric hospital after a severe breakdown several years ago. He concluded L centspez probably didn't understand the complicated waiver forms presented to her and may have approved the interview because she was afraid of authority figures.
Alvarez then reiterated his request for the judge to block broadcast of the "illegally obtained" interview, at least until the judge and lawyers in the case had a chance to review its content. "No one bothers to call a lawyer. No one bothers to tell the woman, who has a limited intellectual capacity, who has a low IQ, who doesn't speak English, 'Everything you tell Telemundo is going to be used to convict you and possibly sentence you to the death penalty.'...I think that's grievous behavior," the public defender said.
Rosenthal argued that Telemundo's conduct in calling the Corrections Department's Public Affairs Bureau to set up the interview was no different from any media outlet's. "If that's a violation, then it happens every single day in Dade County and throughout the country," he said, adding that L centspez's case had received "virtually no pretrial publicity" and would not come to trial for months. More telling, Rosenthal continued, L centspez already had offered police, and her neighbors, a confession: "It's public information. The fact is, it would be reported on tomorrow regardless of whether this [Telemundo] interview took place." The Telemundo lawyer concluded by arguing that the prior restraint against CNN in the Noriega instance was approved only because the taped conversations violated Noriega's attorney/client privilege. "There have been approximately seven temporary prior restraints around the country imposed since the CNN case. All were reversed on appeal," he told Judge Spencer.
The judge ended the four-hour hearing by tersely denying the defense's motion.
Telemundo immediately issued a press release trumpeting its legal victory and its intention to air the celebrated confession the next day. But before they got the chance to fax the statement to news agencies, the Public Defender's Office had appealed the ruling to the state's Third District Court of Appeal.
In response to a strongly worded nine-page motion, the court agreed to temporarily restrain Telemundo from broadcasting the interview until the network filed a response.
As of this past Friday, Rosenthal had not filed a brief. Neither Rosenthal nor Alvarez would comment on the case. Nor would state prosecutors, which makes it impossible to determine whether they will seek to use the Telemundo confession as evidence in L centspez's trial.
Janelle Hall, manager of Dade Corrections' Public Affairs Bureau, concedes that department rules require that an inmate's defense attorney be consulted. But she says her legal staff advised her months ago that this responsibility ultimately rests with the inmate. "She would have the right to talk, even if the attorney didn't want her to," says Hall.
The appellate court's decision, expected by the end of this month, could have dramatic implications for both reporters and criminal lawyers, but legal experts seem confident Telemundo will prevail. "It's the same old argument," observes Bruce Sanford, a Washington, D.C., attorney specializing in First Amendment issues. "The defense attorneys are essentially saying information is poison, that it's a cancer that will destroy their client's ability to receive a fair trial. Well, that argument has been clearly rejected by the United States Supreme Court."