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In a case of first impression, a Philadelphia judge has ruled that a television station has the right to air the videotaped confession of a convicted murderer after it was played in open court during his trial. The ruling by Common Pleas Judge James J. Fitzgerald III is a victory for WPVI-TV, the broadcaster of Channel 6 Action News, and its lawyer, Burt M. Rublin of Ballard Spahr Andrews & Ingersoll in Philadelphia. The station’s request to copy James Gallman’s taped confession was opposed by both the District Attorney’s Office and Gallman’s lawyer, Joseph Santaguida. But Fitzgerald found that “there is a strong presumption in favor of the public’s right to inspect and copy judicial records.” He also found that “there is a public interest in whether or not confessions should be videotaped, and a concurrent interest in observing and understanding the process.” Releasing the tape to the media, Fitzgerald said, will not be an enhanced punishment for Gallman and likewise will not impede the administration of justice. Court records show that Gallman was arrested in February 1999 on charges of murdering his 2-year-old stepson, Vladimir Marchuk, who died of blunt trauma blows to the abdomen while Gallman was caring for him. Soon after his arrest, Gallman admitted to police that he was trying to “discipline” the child and that he hit him “harder than normal.” He signed a written statement and then agreed to have his confession videotaped, but later recanted his confession and pleaded not guilty. A jury convicted Gallman of third-degree murder, and he was sentenced to seven-to-20 years in prison. Prosecutors later showed the taped confession to a reporter from the Philadelphia Inquirer for a story about the increased use of videotaped confessions. But when WPVI asked for a copy of the tape, the DA’s Office refused to turn it over, saying that a television airing of the tape would have a chilling effect on future suspects who might balk at talking on video if they feared it would be seen on television. In court briefs demanding that the tape be turned over, Rublin argued that the vast majority of murder suspects who confess on video later plead guilty in court. And in the small number of cases in which defendants change their minds and go to trial, he said, the prosecutors often use only the written confession. In those cases, Rublin said, the videotaped confession is not public since it never became a “judicial record” and was never introduced into evidence. But Gallman’s case was unique, Rublin said, since it appears to be the first and so far the only case in which prosecutors actually aired the video confession in open court during a jury trial. Assistant District Attorney Fern L. Kletter and Chief Deputy District Attorney Emily Zimmerman argued that granting the television station access to the video “could undermine the law enforcement utility” of videotaping confessions. But Rublin said the prosecutors’ argument misconstrued WPVI’s request as a demand for access to all video confessions. “This premise is faulty since WPVI is not claiming an automatic right to copy all videotaped statements. Since there has been only one case since September 1998 in which a videotaped confession became a judicial record subject to copying by the media, a murder suspect has absolutely no basis to presume that his taped confession will automatically be subject to access and dissemination by the news media,” Rublin wrote. Rublin also argued that it “defies logic and common sense” to suggest that murder suspects who agree to confess will be worried most about the possibility that if they later change their minds, the tape will be aired first at trial and then on television. Instead, Rublin said, the foremost concern in the mind of such a murder suspect is that the confession could result in the death penalty or life in prison. The fact that Gallman’s confession video was already aired in court, Rublin said, “militates in favor” of releasing it to the media since courts have long recognized that evidence used during a trial is a judicial record that is presumptively open to public inspection. Rublin criticized the DA’s Office for arguing that WPVI was seeking to “take possession of the evidence” and that a ruling in its favor would mean that any member of the public “would be free to remove any piece of evidence from the courtroom.” “This hyperbole,” Rublin said, “represents a gross distortion of WPVI’s request. WPVI merely requests a copy of the videotape, which can be made by the District Attorney’s Office itself, without WPVI ever ‘taking possession’ of the original videotape.” Rublin said the prosecutors cited only one case in which a court declined to allow the news media access to a videotape that was played in court — the 1980 decision by the U.S. District Court for the District of Minnesota in Application of KSTP Television. But that case is “easily distinguishable,” Rublin said, because the video showed a kidnapping victim lying on the floor with her hands and feet bound, and there was a risk of prejudicing the jury pool because the defendant had not yet been tried. In Gallman’s case, he said, neither concern is present since the crime is not depicted on the video and since Gallman has already been convicted and opted not to appeal. Fitzgerald found that no Pennsylvania court has yet addressed the question of the media’s right to access videotaped confessions. But several courts, both state and federal, have considered whether the media has the right to air videos played in court, he said, and every decision so far has found that the balancing tips in favor of granting the right to copy and air the tapes. And since the issue involves balancing the defendant’s right to a fair trial against the media’s right of access to evidence, Fitzgerald found that the balance easily tipped in favor of WPVI since Gallman’s trial is already over. Fitzgerald made clear that he was granting the media’s request not on federal or state case law, but on “common law principles.” As for the prosecutors argument that releasing the tape would have a chilling effect, Fitzgerald said he considered the argument “sound,” but “just one of several factors to be considered.” In the end, he said, the Commonwealth’s concern “does not outweigh factors favoring release of the tape to WPVI.”

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