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Media are being prevented from providing ‘electronic coverage’ of local court proceedings

By Bob Conrad

Twice this year the news media have been prevented from providing electronic coverage of local court proceedings.

Our Nevada Judges (ONJ), which provides video coverage of court proceedings throughout Nevada, was recently denied the ability to film a criminal case being heard in Washoe County’s Second Judicial Court.

The case, the State of Nevada versus Roger Hillygus, is about Hillygus’ alleged kidnapping of his mom. Hillygus maintains he rescued his mom from being mistreated at an Alzheimer’s care facility in Reno. Hillygus, with former Mineral County Sheriff Stewart Handte, took the mother to Los Angeles in 2019.

Hillygus was arrested by a SWAT team in L.A. a week later. Both Hillygus and Handte maintain their innocence, and the matter is being heard in district court by Judge Barry Breslow.

Breslow, however, allegedly did not respond to a request to videotape and blocked access to a Nov. 4 hearing.

Judge Barry Breslow.
Judge Barry Breslow.

“The problem in this case is that the judge prohibited camera access to a criminal proceeding without ruling on our request,” said Alexander Falconi, who manages ONJ. “The Supreme Court of Nevada has made clear the heavy presumption in favor of camera access of any proceedings that are open to the public. Those same rules require a judge to make certain findings on the record before denying camera access.

“Our media request was ignored, we were not allowed to record the proceeding, and now, the public is deprived of an opportunity to learn. I’m hoping that we will be allowed to record and publish the remainder of proceedings going forward.”

Falconi, through his attorney, filed a motion to allow ONJ to provide electronic coverage under rules established by the Nevada Supreme Court.

Those rules assume court proceedings are open to the public, including electronic coverage by the news media. A judge, if denying a media source the ability to record a proceeding, should outline specific factors allowed in court rules to deny the coverage, a local attorney said.

Courts have to have a strong rationale to close a courtroom and deny media access. That’s a principle that goes back to our founding fathers. It’s about as fundamental as it gets.”

“Our Nevada Judges has received no written order in response to its request to provide electronic coverage of the October 28, 2021 hearing,” the ONJ motion notes. “Limited intervention by the press in criminal cases is permitted under the First Amendment to the U.S. Constitution.

“The importance of the right to an open trial is also evident under the Sixth Amendment, which requires a speedy and open trial. Even the closure of a suppression hearing over the objections of the accused may constitute a violation of the rights of the accused.”

Judges can set parameters on news media coverage, however, such as limiting the number of people who can video hearings. It’s not uncommon for a single news camera to videotape proceedings — all media outlets will then get a copy of the recording. This Is Reno has relied upon ONJ videos for its reporting.

Journalists can file a writ to the Nevada Supreme Court to get the denials overturned. By the time the writ is considered, however, the court proceedings in question could have already started.

In July, a group of local news media groups, including the RGJ and KOLO-TV, also filed a motion to provide news coverage of a court proceeding over the death of five-year-old Cali Anderson in 2018.

“Allowing cameras in the courtroom encourages openness and permits the public to monitor criminal proceedings—an issue of utmost public concern,” attorney Louis Bubala argued in a court filing on behalf of the news outlets. “The decision to preclude all electronic coverage will dramatically reduce the public’s ability to scrutinize the instant proceeding in violation of this presumptive right of access.”

Judge Kathleen Drakulich denied the request.

Media Law Professor Patrick File. Image: UNR Reynolds School of Journalism
Media Law Professor Patrick File. Image: UNR Reynolds School of Journalism

“This Court finds that video cameras, still cameras, cellular phones with photographic or recording capabilities or computers will unnecessarily distract participants, as such equipment can be very prominent in the courtroom and produce unwanted noise,” she wrote. “This case involved the death of a very young child, and the Court anticipates that photographic and other evidence will be produced about the circumstances of her death. Because it is incumbent on this Court to protect the privacy and dignity of the victim in this case, electronic coverage is not appropriate.”

One source, speaking on the condition of anonymity, called the denials by Judges Breslow and Drakulich “highly unusual.”

Media law Professor Patrick File said restricting media access of court proceedings is a concern that goes back to British rule of American colonies.

“Courts have to have a strong rationale to close a courtroom and deny media access,” University of Nevada, Reno Professor Patrick File said. “That’s a principle that goes back to our founding fathers. It’s about as fundamental as it gets.”

Falconi, who said he and his videographers always follow court rules, has recorded cases with far more sensitive subject matters than the Hillygus case, such as violent crimes against children.

“Our Nevada Judges places camera equipment in a position that is not distracting, quietly records, and swiftly packs up and departs, often without any need to communicate to judicial department staff, and has never had its right to provide electronic coverage revoked,” he said in a sworn statement.

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