An attorney with the Maricopa County Attorney’s Office filed a notice with the Arizona Court of Appeals correcting his misstatements in a Dec. 5 hearing over whether a prosecutor had asked a judge to bar the media from using her name or image.

According to transcripts filed with the notice, prosecutor Jeannette Gallagher had asked in open court for Superior Court Judge Erin Otis, a former colleague, to make the unusual ruling in the case of John Allen, who was on trial in the murder of his wife’s 10-year-old cousin.

Allen’s lead defense attorney, Gary Beren, confirmed that Gallagher also had asked Otis to order that her name or image not be used when the matter came up during a conversation between the case’s two prosecutors and two defense attorneys at Otis’ bench, out of earshot of the rest of the courtroom.

The issue was argued in front of the Court of Appeals on Dec. 5, when Deputy County Attorney Gerald Grant stated that his office had not requested the censorship of Gallagher’s name or image.

Grant changed that position on Tuesday when he filed a “notice of errata,” writing that he had “learned yesterday” that Gallagher had made the request.

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In her request that her name and image not be used in media coverage, Gallagher said she wanted to maintain the integrity of another case, in which she was a victim, that was being deliberated by a separate jury.

Gallagher’s name and photo had been used repeatedly in earlier coverage of 10-year-old Ame Deal’s murder trial. But on Nov. 6, during a hearing on whether to allow The Arizona Republic to shoot still photos in the courtroom, Otis barred further use, over the objections of an attorney representing several media outlets. She said the bar would be lifted when the two cases concluded. 

The Arizona Republic, the Associated Press, 12 News, and Channels 3 and 5 later filed what is known as a special action with the Court of Appeals, seeking the higher court’s ruling that such prior restraint violates the public’s right to know under the First Amendment.

Otis had said in her order that she didn’t want the jury in the case in which Gallagher was a victim to be tainted by coverage of the Allen trial.

In that case, a man named Albert Heitzmann was charged with stalking Gallagher and  with misconduct with weapons.

During the Court of Appeals argument, David Bodney, who represents the media outlets, asked if the Heitzmann jury had not been given the usual admonitions to avoid media coverage of the case. Grant said he did not know. 

Court records obtained by The Republic show that before the trial began, the jury was given a standard boiler-plate admonition not to talk about the case or follow coverage. 

By the time the Special Action reached the court, both cases had been resolved. Heitzmann was found guilty of stalking on Nov. 7. The weapons charge was dismissed by the Arizona Attorney General’s Office on Dec. 11. Allen was sentenced to death Nov. 16. 

Both Gallagher and Otis filed motions with the Court of Appeals declaring that the special action was moot because the cases had ended and the gag order had been lifted. The media wanted to continue to make its argument to prevent similar bans from occurring in the future. The Court of Appeals allowed the question to go forward.

The court took the matter under advisement, with no indication of when it would rule.

 

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