A judge's ruling Thursday in which we can see part, but not all, of the case being built against the alleged Serial Street Shooter promises to be only the beginning of a very visible tussle pitting prosecutors, defense attorneys, and the courts versus the media and public.
A group of media organizations, representing the Arizona Republic, the Associated Press, KPNX Channel 12, Telemundo and Scripps Media Inc., filed a motion seeking to make public the booking sheet of suspect Aaron Juan Saucedo, who has been accused of nine murders since 2015. The same form is routinely available in other cases.
Wednesday, Maricopa Superior Court Judge Scott McCoy heard oral arguments watched only by reporters.
While Saucedo sat in a jail cell, the media was on trial.
At issue was how far the press can go in reporting a story without jeopardizing the case, harming the rights of the defendant or his victims, or violating the privacy of witnesses.
Much of the dispute revolves around the reporting between Saucedo’s arrest in late April on a then-unrelated murder case and being named as the suspected Serial Street Shooter on May 8.
The next day, Maricopa County Attorney Bill Montgomery lambasted the press for showing pictures of Saucedo’s mug shot to witnesses from the serial shootings.
“We have already had some inappropriate conduct by a media outlet and I want to highlight it,” Montgomery volunteered, when asked why the records were sealed. “When you show suspect photos to potential witness in an active investigation, you jeopardize potential identification in court.”
“It’s more important in this case for us to have justice than you to have more clicks on your website or hits on your Twitter account,” he went on. “It’s not good.”
In court, his prosecutor Patricia Stevens made the same argument. She noted that prosecutors are reviewing 5,000 pages of records and 96 CDs of material, and repeated that the investigation is ongoing. Authorities are not ruling out further charges.
Tim Agan, the attorney representing Saucedo, argued that releasing the records could worsen his client’s chances of getting a fair jury.
But there is more to this story.
The discussion was over a report in the Arizona Republic on May 8, the day police announced Saucedo’s role in the serial shootings. The paper wrote that one of the survivors “said police visited him to show him a lineup, as well. He also seemed uncertain about the suspect's identity.”
The article continued, “The victim said he pointed out more than one person in the photo lineup. But when the Republic showed him a picture of Saucedo, he said he didn't think he was one of the men he picked.”
Full disclosure: the Republic reporter is a close friend of this reporter.
Not discussed in court was how the Republic (and Phoenix New Times) refrained from naming Saucedo before police made it official. Since April 22, KNXV-TV/Channel 15 had been naming him since April 22 as a person of interest and speculating that he might also be the Freeway Shooter. Other TV stations followed suit.
Authorities said there was no evidence of any connection between the two shooting sprees.
Nor was it mentioned that a man who’d survived a shooting told Channels 15 and 12 two weeks before the press conference that police had shown him photos of Saucedo and it gave him chills.
“It might be that guy. When they showed me the picture, I did get a little chills,” the survivor told Channel 12. “I think this might be the guy.”
But there was never any admonishment of media outlets for prematurely naming Saucedo, erringly linking him to the spate of freeway shootings in 2015, or discussing photos with witnesses who back up investigators’ claims.
Wednesday’s hearing was one of those rare cases when prosecutors and defense attorneys were on the same side. Both said they wanted to protect the rights of the defendant.
Arguing against them was Craig Hoffman, who petitioned for the booking sheet, known as a Form IV, to be released. He reminded McCoy that case law has long established that court records are public and the burden of proof is on the state to show they are not.
“Making a generalized allegation about an open investigation is insufficient,” Hoffman argued. “The state hasn’t stated the precise risk of unsealing the Form IV.”
Hoffman countered arguments that the problem goes away once prosecutors indict Saucedo. He said the law makes no distinction between a public record before or after indictment, as Stevens and Agan had opined.
McCoy asked what the harm would be of blackening out certain information, such as the identity of witnesses or underage victims.
“There are pages of narratives setting forth the investigative conclusions of the case,” Stevens answered. “If the court releases a redacted Form IV, it would be without any of the narrative.”
That is the entire point of making charges and booking sheets public. It ensures that defendants aren’t accused and tried in secret.
But Maricopa County has been here before with high-profile murder cases.
Remember Jodi Arias?
In 2013, a jury convicted her of first-degree murder of her onetime boyfriend Travis Alexander. Amid the media’s version of Circus Maximus, in which TV's Nancy Grace held live mock juries two blocks away from the courtroom, the jury deadlocked on the death penalty. Maricopa County retried the penalty phase, but not without Judge Sherry Stephens repeatedly locking the public out of courtroom hearings and even testimony.
The man who prosecuted Arias was Juan Martinez, a sometimes showy, brash attorney who developed a cult following from the case that attracted international attention. Martinez is listed in court records as the lead attorney on the Saucedo case.
The history of high-profile murder trials and the intense media exposure in the Serial Street Shooter case left McCoy plenty to ponder.
“The Court therefore must weigh the public’s right to public records – and to know the specifics underlying Saucedo’s May 8, 2017 arrest – against the State’s and the public’s important interest in having thorough and reliable investigations conducted by trained police officers,” McCoy wrote in his ruling, released Thursday.
He wrote he was unconvinced by MCAO’s critique of media interference, especially that of the Republic.
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“But the news article itself reveals that before press involvement, police asked the victim at issue to identify Saucedo in a photographic lineup. A witness’ post-lineup statement to a reporter (or other member of the public) may impact an investigation or become a relevant fact if Saucedo is charged and the case proceeds to trial. The article, however, does not satisfy the State’s burden to demonstrate “how production of [the Form IV] would be detrimental to the best interests of the State,” McCoy wrote.
He ruled that MCAO shall file the records by Sunday, May 21, blacking out information identifying victims.
Attorneys will have to petition the court to redact anything further, he ruled.