Two Rights Make a Wrong

In a Dade jail, a TV tabloid show films a murder confession. In a Dade court, the First Amendment squares off against the Sixth Amendment.

Guillermo Vargas Martinez, a reporter for the WSCV-TV news program Ocurri cents Asi, met with prisoner Alicia De Jesus L centspez in the library of the Dade County Jail on April 7. As Vargas listened in rapt silence, L centspez, a 38-year-old Honduran immigrant awaiting trial for first-degree murder, described how she had brutally murdered her lover A on the very day she was to have buried her recently deceased husband. It was the sort of interview tabloid television reporters dream about. And it was all captured on videotape.

Ocurri cents Asi, a Spanish-language show specializing in sensationalism, had planned to air the segment two weeks ago. (The program, produced by the Telemundo network and aired locally on Channel 51, made national headlines earlier this year when it broadcast footage of a man gunning down his ex-wife in a North Lauderdale cemetery in January.) But with the intervention of the Dade Public Defender's office, the tape has instead detonated a far-reaching legal feud that pits the rights of the press against the rights of a criminal defendant. Telemundo has been legally prohibited from airing the tape until the Third District Court of Appeal rules on the matter, which could take more than a month.

The case began this past August, when Alicia L centspez called Hialeah police to inform them that she had killed her lover the night before; she wanted police to pick up the body and she wanted them to hurry, she said, because she was already running late for her husband's funeral.

The request sounded crazy. But when officers arrived at L centspez's small apartment complex on Palm Avenue, they quickly located the corpse of Antonio Juarez on the bed he and L centspez shared. Neighbors confirmed for police that L centspez's husband had died a week earlier, of natural causes. They also informed officers that the suspect had a history of psychiatric problems, which had flared since her spouse's passing.

As police cordoned off the apartment, L centspez herself sat nearby, smoking Marlboro cigarettes and describing the killing to police officer Frank Caldara, who later gave a sworn statement. She and Juarez fought, especially when he drank. He had been verbally abusive to her the night before. She had left him dozing, gone to a nearby apartment, returned with a large hunting knife, and fatally stabbed him as he slumbered. This was the same story L centspez calmly had relayed to neighbors earlier that day. She even pointed out to Caldara the abandoned lot where she had disposed of the murder weapon.

L centspez was jailed and indicted in early September for first-degree murder, a capital offense. At arraignment her public defender entered a plea of not guilty by reason of insanity. A court-appointed psychologist evaluated L centspez and rendered the opinion that she was likely a schizophrenic who was insane at the time of the killing.

Were it not for tabloid television's appetite for gore, L centspez might have been left to await her trial in virtual anonymity. But when Ocurri cents Asi producers got wind of the murder, they sought to interview L centspez at the Dade County Jail. This past December reporter Vargas called the Dade County Department of Corrections Public Affairs Bureau to request an interview with the prisoner. L centspez consented, but Vargas had to cancel that meeting because he could not find a cameraman. In March Vargas called to reschedule. Again L centspez acceded and three weeks ago she met with the reporter.

The results of that meeting were to have aired April 12. But on April 8, Vargas called L centspez's public defender, Manny Alvarez, for comment about the case. He informed Alvarez that Channel 51 planned to air excerpts of L centspez's videotaped confession the following week.

The public defender hit the roof. Within hours he had filed an emergency motion contending that by broadcasting the segment, Telemundo would trample L centspez's Sixth Amendment right to a fair and impartial trial. It would be difficult, he argued, to empanel impartial Latin jurors if much of Dade's Latin community already had watched his client confess to the crime on TV. (Telemundo officials proudly note that their network reaches 85 percent of the nation's Hispanic homes.)

Alvarez's motion also assailed Telemundo for "taking advantage of a defendant who is a foreign national unfamiliar with the legal system and who has a history of psychiatric problems" and chided corrections officials for acting as "proxy attorneys to advise defendants as to whether they should completely divest themselves of their constitutional rights and give lurid confessions to television reporters." Alvarez characterized the confession as "illegally obtained" A a contention that might later be used to combat any attempt by prosecutors to introduce the Telemundo tape as evidence at L centspez's trial.

Given the sweeping powers of the First Amendment, the bid to block a media outlet from airing information already in its possession was a bold maneuver. The landmark case involving so-called prior restraint was the 1971 Pentagon Papers controversy, in which the U.S. Supreme Court eventually ruled that the New York Times could publish information detailing the origins of the Vietnam War, even though Pentagon officials had deemed the material "top secret." In 1990, however, Judge William Hoeveler issued the opposite ruling, when he temporarily barred Cable News Network (CNN) from broadcasting taped discussions between deposed Panamanian dictator Manuel Noriega and his lawyer.

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."

Sanford, an attorney for the Society of Professional Journalists who has written extensively about privacy rights, points out numerous examples of high-profile cases around the U.S. in which juries have been selected and fair decisions rendered. "While most journalists and editors might not like to hear this," he says, "all of the studies show us that people don't remember what they hear on television or read in the newspapers."

The defense assailed Telemundo for taking advantage of L centspez's psychiatric problems and corrections officials for acting as "proxy attorneys.

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