Boulder – The Daily Camera plans to challenge a judge’s order forbidding the newspaper to publish a mug shot after the picture had been released.
Judge Roxanne Bailin on Tuesday signed an order sealing the case of Phillip Martinez, the man charged in a racially motivated assault of a University of Colorado student. The order was filed Wednesday.
Earlier that morning, the Boulder County Sheriff’s Office released Martinez’s mug shot to the newspaper. The picture was posted on the Camera’s website soon after.
Later in the day, another judge, John Stavely, issued an order forbidding publication when he learned about the Camera’s posting.
Police and prosecutors said releasing the picture could jeopardize their case against Martinez because they still need to have witnesses view the suspect in a police lineup.
District Attorney Mary Lacy said if the suspect’s image is in the public domain before the lineups are completed, then any identification by witnesses could be tossed out of court.
“Typically when the identification process is tainted, the defense attorney will file a motion to suppress,” she said.
But Camera editor Sue Deans said the court order is clearly unconstitutional.
“We believe it is prior restraint,” she said. “We had gotten (the mug shot) without any wrongdoing on our part.”
She noted the picture has not run in the printed newspaper, only online.
Kelly McBride is the journalism ethics group leader at the Poynter Institute for Media Studies in St. Petersburg, Fla. She said judges don’t have jurisdiction over media organizations.
“A judge can only enforce orders on officers of the court,” she said.
McBride pointed to the Kobe Bryant sexual-assault case during which the accuser’s name was accidentally released more than once, despite a court order forbidding it.
Still, many media organizations chose to withhold her name anyway.
Information being accidentally released “is a fairly common occurrence,” said Gary Hill, national ethics committee co-chairman for the Society of Professional Journalists.
Hill said it is not unreasonable to withhold publication if authorities give a clear reason – but not indefinitely.
“The picture is an important part of the story of who this guys is. … I’m particularly surprised a judge weighed in.”
Martinez’s case is sealed for 60 days. He is accused of confronting CU student Andrew Sterling with racial epithets last month, then hitting Sterling twice, breaking his jaw.
Staff writer George Merritt can be reached at 720-929-0893 or gmerritt@denverpost.com.
