Judge’s order barring L.A. Times from publishing photographs of murder suspect is overturned

The California Court of Appeal on Thursday overturned a judge’s order barring The Times from publishing “lawfully obtained photographs” of a murder suspect, calling the judge’s actions “an unconstitutional prior restraint on speech.”

Los Angeles County Superior Court Judge Hilleri J. Merritt granted a request by L.A. Times photographer Al Seib during an Aug. 4 hearing to take pictures of Alberd Tersargyan, who is accused of killing three members of the same family as well as a prostitute on Sunset Boulevard.

But later in that same proceeding, Merritt withdrew her permission, ordering that The Times not publish the photos after Tersargyan’s public defender argued that the publication of pictures could jeopardize Tersargyan’s ability to get a fair trial. (In some court records, Tersargyan’s name is spelled Tersargsyan.)

The judge said she had to balance competing rights.

Jeff Glasser, the attorney representing The Times, argued that neither the U.S. Supreme Court nor the California Court of Appeal had ever upheld a prior restraint even when faced with compelling issues such as national security or a competing interest such as the right to a fair trial. Even so, Merritt upheld the order.

In overturning her decision, the three-judge appellate panel noted that the defense failed to prove Tersargyan’s rights had been jeopardized.

“Although the original order may have been issued to preserve the integrity of eyewitness identification, the record does not demonstrate it is substantially probable that either the integrity of the identifications or the defendant’s due process rights are at risk absent the prior restraint,” Appellate Court Justice Sanjay Kumar wrote in the unanimous opinion by the three-judge panel.

Kumar also noted that it was “not probable” that the defendant’s right to a fair trial would be compromised given that the media had previously published pictures of the defendant in connection with the case.

Los Angeles County Superior Court spokesman Allan Parachini said his office had no comment on the appellate court’s decision. Head Deputy Public Defender Albert J. Manaster, the attorney representing the public defender’s office, could not be reached for comment.

Erwin Chemerinsky, dean of the UC Irvine law school, said the trial court was wrong in phrasing this as a balancing test between the 1st Amendment and the defendant’s right to a fair trial.

“A defendant’s right to a fair trial is generally served by an open public trial,” Chemerinsky wrote in an e-mail to The Times.

In response to the appellate ruling, Merritt vacated her order Thursday, paving the way for the paper to publish Seib’s photographs.

In arguments before the appellate court, Manaster suggested that The Times photographer had acted in an illegal or improper way in obtaining the photos, and therefore the paper should not be allowed to publish them.

But the appellate court rejected that argument, citing court transcripts that showed that the photographer had received permission from Merritt before he began taking pictures.

andrew.blankstein@latimes.com