Filing # 32234405 E-Filed 09/18/2015 02:28:28 PM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA. CASE NO.: 16 2015 CF 006602 DIVISION: CR-H STATE OF FLORIDA vs. WILLIAM R. EBRON MOTION FOR PROTECTIVE ORDER Defendant, by and through the undersigned attomey, the Public Defender for the Fourth Judicial Circuit of Florida, pursuant to Rule 3,220(1)(1), Florida Rules of Criminal Procedure, and Chapter 119, Florida Statutes, respectfully moves this Honorable Court to enter an order prohibiting any further release of the documents described below. As grounds for the foregoing, the Defendant submits the following: 1. This is a highly publicized case in which the Defendant is charged with Child Neglect and various offenses related to an alleged escape attempt. The Jacksonville Sheriff's Office has publicly identified Defendant as a suspect in the disappearance and/or homicide of a two year old child. This case has already received extensive pretrial publicity in the print and television media and on the internet, 2. This case continues to be of great interest to the media, as demonstrated by the presence of media at prior court hearings in the instant case and in the codefendant’s (Lona Barton) case. Various items of discovery have already been disseminated to the media. The media has reported on these items, which include items apparently unrelated to any of the charged offenses. 3. The Sixth Amendment to the United States Constitution guarantees an accused the right to a trial by an impartial jury, and the Fourteenth Amendment secures that right to all criminal defendants in state court 4, A trial court has the inherent power to control the conduct of the proceedings before it. State ex rel. Miami Herald Pub. V. McIntosh, 340 So.2d 904, 909 (Fla, 1976). This Court has both the right and the affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity and is obligated to take protective measures “even when they are not strictly and inescapably necessary” to ensure that the Defendant (and the State) can receive a fair trial. See Estes v. Texas, 381 U.S, 532 (1965); Sheppard v. Maxwell, 384 U.S. 333 (1966). FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 09/18/2015 03:15:10 PMWEbron- Motion for Protective Order Page 2 5. Publication of additional discovery materials described below by means of print media, internet and/or television news will result in this matter being tried in the press rather than in this Court. This could result in an inability to seat a fair and impartial jury in Duval County and other surrounding counties due to the wide dissemination of published materials concerning this case, 6. Under the separation of powers doctrine, it is the responsibility of the judicial branch to ensure that the parties receive a fair tril. A right to a fair trial has been construed by Florida courts to include the right to an impartial jury in the county in which the alleged crime was committed. 7. Until recently, a change of venue would be sufficient to ensure that an impartial jury could be selected because the local print and television media would primarily focus on local news. The majority of case law often provided by the media regarding this, issue predates the rise of the use of the internet and bloggi worldwide and opinions are formulated within hours of any news release. Anyone typing Defendant’s name into Google will come up with numerous headlines regarding this case. This information is made available to the world by both local and nationally based sources. This in tum will make it more and more difficult to ensure ‘an impartial jury as additional discovery is released to the media. 8. Publication of specific discovery materials such as names, addresses and telephone numbers of potential witnesses will hamper both parties’ ability to conduct a fair and independent investigation, and to present witnesses at-trial. Such disclosure to the ‘media will cause the unintended consequence of preventing other witnesses from coming forward with relevant information for fear that they will be stalked, threatened or otherwise harassed due solely to their status as a witness. See Section 119.071(5)(d) and cases already cited. 9. Active criminal investigative and intelligence information only loses its exempt and confidential status during the discovery process, and only when the defendant triggers that process. Absent a notice to participate in discovery, these materials remain privileged and non-public until the trial 10. In this case, Defendant has filed for discovery under the Florida Rules of Criminal Procedure. 11. However, just because Defendant is entitled to receive information during discovery about the case does not automatically mean the media gets everything provided to the Defendant. While there is a clearly recognized constitutional right for the Defendant to have a fair trial, there is no First Amendment protection for the public and the press to have access to pretrial hearings. News is now availableWEbron- Motion for Protective Order Page 3 12, Pursuant to Chapter 119, Florida Statutes, the public is granted access to certain documents produced by the State to defendants in criminal cases. See Florida Freedom Newspaper v. McCrary, 520 So.2d 32 (Fla. 1988). The standard to determine whether closure or restriction on the production of documents is appropriate has been set out in Miami Herald Publishing Company v. Lewis, 426 So.2d 1 (Fla. 1982) 13. In Lewis, the Florida Supreme Court confronted the issue of what circumstances warrant closure of a pretrial suppression hearing, The Court upheld the trial court's exclusion of the media from a suppression hearing upon the court’s finding that an ‘open hearing would pose a “reasonable probability of prejudice on these defendants.” Id. at S. 14, In Lewis, the Court modified a three-prong test for closure of judicial proceedings: “1) Closure 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; and 3) Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.” Id. at 6. 15. In Florida Freedom Newspaper v. McCrary, 520 So.24 32 (Fla, 1988), the Florida Supreme Court was faced with the issue of whether a trial court could res disclosure to the media of pretrial discovery material which was furnished to the defendant pursuant to Florida Rules of Criminal Procedure 3.220. The trial court, after an in camera inspection of the discovery materials, entered orders prohibiting the release of the existing discovery materials and, pending additional in camera inspection, any future discovery materials. The orders were based on the findings that “the discovery material was graphically incriminating, containing materials which may not be admissible at trial, and that the prosecutor, sheriff, and other persons had made no public statements prejudicial to the defendants.” Id, at 33. 16, In McCrary, the trial court utilized Rule 3.220(h) to authorize its protective order, and concluded that closure of pretrial discovery materials was necessary because there had been prior pretrial publicity, that public disclosure of this material would further aggravate the prejudicial publicity and that closure was the only measure available to the court until a jury could be selected and sequestered. The Court held that these were essentially the same factors as those set forth in the Lewis three-prong test and held that those factors stated in Lewis are relevant to a finding of cause and should be considered in determining whether access to judicial public records should be restricted or deferred, Id, at 35. In so holding, the Court recognized the Lewis testWEbron- Motion for Protective Order Page 4 strikes the proper balance between the public’s statutory right of access and a defendant's fair trial and due process rights. Id. at 36. 17, For these reasons, this Honorable Court has the right and affirmative constitutional duty to restrict release of specific discovery material to the media. 18, As Defendant is not aware of what additional discovery may or may not be tendered to the Defense, Defendant respectfully requests that the Court conduct an in camera inspection of all future discovery exhibits and referenced documents, reports, video recordings, audio recordings, tangible items or other exhibits prior to the release of any item pursuant to a Chapter 119 public records request. Wherefore, Defendant requests this Honorable Court to grant this motion. THEREBY CERTIFY that a copy of the above and foregoing Motion for Protective Order has been furnished to the Office of the State Attomey, by hand and/or electronically, this day of September, 2015. Respecttfillly submitted, MATT SHIRK PUBLIC DEFENDER BY: ‘dD. Alphonse B. Perkins 855881 Assistant Public Defender