Constitutional Law

Court won't unseal search-warrant records in Ariz. shooting

By By The Associated Press

SAN DIEGO — News organizations failed to persuade a federal judge late last week to release search-warrant records involving the suspect in the Arizona shooting rampage that killed six people and wounded U.S. Rep. Gabrielle Giffords, among others.

U.S. District Judge Larry A. Burns on Feb. 18 held off on unsealing search-warrant records that show what was seized from the home of Jared Loughner after the Jan. 8 shooting. The judge said the investigation was ongoing and another indictment was expected to bring additional federal charges.

Burns also refused to rule on defense attorneys? request to block release of a mug shot of Loughner. Burns said he was leaving it up to the U.S. Marshals Service to decide whether to release the mug shot of the 22-year-old taken in Phoenix while he was in the custody of the agency.

The unreleased photo is a different image than the mug shot released by the Pima County Sheriff?s Office two days after Loughner was arrested.

Defense attorneys argued that the new photo invades Loughner?s privacy and doesn?t serve any legitimate public interest. In addition, mug shots reveal people at their most humiliating moments, the lawyers said.

Prosecutors described the photo as showing Loughner with abrasions on his face and with a cinderblock wall in the background.

Burns said he did not agree the photo would invade the suspect?s privacy or harm his chance at a fair trial, but he said he didn?t have the authority to rule on the matter because the 6th U.S. Circuit Court of Appeals requires the U.S. Marshals Service to release the photo. Two of the 15 news-media outlets that have requested the photo are in the 6th Circuit area.

?We?re making these pictures seem way more ominous than they really are,? Burns said, adding that the second mug shot is much ?tamer? than the first one that has been widely circulated on the Internet. That photo shows Loughner wide eyed and smiling.

Defense attorneys had argued that the release of the search-warrant documents also would harm Loughner?s chances of a fair trial.

Loughner has pleaded not guilty to federal charges of trying to assassinate Giffords and of killing two of her aides. He was not at the hearing in San Diego.

Burns said he disagreed with defense arguments but would hold off for now because of the ongoing investigation and the expected indictment following an earlier federal complaint that also charged Loughner with murder for the killings of U.S. District Judge John Roll and Giffords? aide Gabe Zimmerman.

The upcoming indictment is expected to restore those murder charges. Loughner also will likely face state charges in the attack.

Burns indicated he might unseal the records after a hearing on March 9, when he will consider a request by prosecutors to get handwriting samples from Loughner to compare with documents seized in a search of his home. Burns said the government has told him that by then they expect to have all charges ?crystalized.?

?It will likely be a different story as of March 9,? Burns said.

David Bodney, an attorney representing The Arizona Republic and Phoenix TV station KPNX, argued that it was time to release the records and that there was no basis for the documents to remain sealed. He said the public has a right to the records that have been under seal since Jan. 11 and that prosecutors have failed to show the material would harm their case.

?Logic tells me these are public records,? he told the judge.

Bodney said the FBI has handed over all its material to U.S. prosecutors, indicating the crux of the investigation is over and would not be jeopardized.

U.S. Attorney Beverly Johnson told Burns that wasn?t true. Burns agreed with her.

Defense attorneys said the documents contain potentially inflammatory statements by a law enforcement officer and that releasing the information could have a prejudicial effect on the prospective jury pool.

Burns was appointed to hear the case after all the federal judges in Arizona recused themselves because of their connection to Roll, who was the chief federal judge in Arizona.

Full post as published by First Amendment Center on February 20, 2011 (boomark / email).