Appellate court dismisses request to lift prior restraint

TENNESSEE–In late January, the Court of Criminal Appeals at Knoxville unanimously decided to let stand a Knoxville judge’s earlier decision to restrain a newspaper from publishing information from court-appointed defense counsels’ time records.

The records in the capital murder trial of accused serial killer Thomas “Zoo Man” Huskey had been leaked to The Knoxville News- Sentinel, which printed a story about the records after deciding that a trial court’s restraining order was “transparently invalid” and unconstitutional.

The state intermediate appellate court focused on the fact that it did not have a complete record before it to determine the issues at hand. According to the court, the record on appeal did not include the detailed time sheets which the News-Sentinel obtained and which were the basis for the article it published.

The court noted that at the deposition of the newspaper reporter who had received the records, counsel for Huskey and the News-Sentinel agreed to keep exhibits to the deposition private. The detailed time records, although presumably filed under seal with part of the reporter’s deposition, were never contained in the lower court record.

The court declined to order any further supplementation, and stated that it could not address the vital constitutional issues the case presents because the time records “are not only central to the case, they are the case.”

In dicta, the court noted that “prior restraint is essentially a last resort” and that there are various alternatives for dealing with pretrial publicity. However, the court also stated that the public impact of pretrial publicity was less of a concern here than “prejudice to the dynamics of the defense via the prosecution gaining otherwise nondiscoverable information.” Alternatives less restrictive than sealing the records “are not as apparent” in those circumstances, the court said.

Previously, a Knoxville judge in early November upheld its earlier decision to restrain The Knoxville News-Sentinel from publishing information from court-appointed defense counsels’ time records. Criminal Court Judge Richard Baumgartner determined that a prior restraint was necessary to protect Huskey’s rights.

Huskey was convicted in 1991 and 1992 for several rapes and, as of early February, was standing trial in Knoxville for the murders of four women. If convicted, he faces the death penalty. Huskey’s trial began on January 26, 1999.

The Knoxville News-Sentinel received copies of sealed attorney bills, time sheets, and expenses in Huskey’s case, which has been reported to be among the most expensive in state history. Huskey’s attorney immediately asked the judge to block the publication of any story about the records. Baumgartner issued a temporary restraining order the same day. The newspaper chose to disregard the order, deciding that it was “transparently invalid” and therefore unconstitutional. The News-Sentinel published its story on October 25.

Richard Hollow, attorney for The News-Sentinel indicated that he is planning to petition for rehearing by the Criminal Court of Appeals. (Tennessee v. Huskey; Media Counsel: Richard Hollow, Knoxville)