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    #Sarahboone - Motion To Intervene For The Limited Purpose of Opposing Closure

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    #Sarahboone - Motion To Intervene For The Limited Purpose of Opposing Closure

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    Sarah Boone Documents

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    #SARAHBOONE | MOTION TO INTERVENE FOR THE LIMITED PURPOSE OF OPPOSING CLOSURE

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    #Sarahboone - Motion To Intervene For The Limited Purpose of Opposing Closure

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    Filing # 204535302 E-Filed 08/12/2024 03:27:48 PM

    IN THE CIRCUIT COURT OF THE


    NINTH JUDICIAL CIRCUIT, IN AND
    FOR ORANGE COUNTY, FLORIDA

    CASE NUMBER: 2020-CF-002603-A-O

    DIVISION 20

    STATE OF FLORIDA,

    Plaintiff,

    vs.

    SARAH BOONE,

    Defendant.
    ___________________________/

    MOTION TO INTERVENE FOR THE


    LIMITED PURPOSE OF OPPOSING CLOSURE

    WFTV-TV Channel 9 (“WFTV”) moves to intervene in this action for the limited

    purpose of opposing closure of judicial proceedings. In support thereof, the WFTV states as

    follows:

    1. WFTV has covered the murder of Jorge Torres and the arrest, investigation and

    prosecution of Defendant Sarah Boone. Reporters from WFTV attend court proceedings and rely

    upon state, county and local public records, as well as judicial records, as part of their

    newsgathering process.

    2. This Court has set a physical viewing of the evidence for September 3, 2024, and

    is set to consider the media’s attendance at the viewing during a hearing on August 14, 2024.

    3. Any closure of the physical viewing directly affects the media’s and the public’s

    right to monitor this important criminal proceeding. As such, WFTV has standing to intervene
    and oppose any requested closure. See, e.g., Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 7

    (Fla. 1982).

    4. WFTV would like to be heard in this matter and asserts that any requested closure

    should be denied.

    5. Florida has traditionally served as a model for open government and courts. It is

    well-settled in this State that criminal court proceedings are presumptively open to the public.

    The Florida Supreme Court has stated that “a trial is a public event [and] [w]hat transpires in the

    courtroom is public property.” Lewis, 426 So. 2d at 7 (quoting Craig v. Harney, 331 U.S. 367,

    374 (1947)).

    6. Therefore, when considering a request to close court proceedings, this Court

    “should begin its consideration with the assumption that a pretrial hearing be conducted in open

    court unless those seeking closure carry their burden to demonstrate a strict and inescapable

    necessity for closure.” Id. at 8 (emphasis added). In order to justify closure, the moving party

    must meet an exacting standard and show:

    a. Closure is necessary to prevent a serious and imminent threat to the


    administration of justice;

    b. No alternative, other than a change of venue, would protect the defendant’s right
    to a fair trial; and

    c. Closure would be effective in protecting the rights of the accused, without being
    broader than necessary to accomplish this purpose.

    Id. at 6-7. 1

    1
    This test also applies to requested closure of discovery materials, which are public record. See
    Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 35 (Fla. 1988) (“we hold the
    factors set out in Lewis are relevant to a finding of cause and should be considered in
    determining whether public access to a judicial public records should be restricted or deferred”);
    Times Pub. Co. v. State, 903 So. 2d 322, 325 (Fla. 2d DCA 2005) (once discovery information is
    disclosed to a criminal defendant, that information becomes non-exempt public record).
    7. First, closure is not necessary to prevent a serious and imminent threat to the

    administration of justice. Importantly, the fact that the proceeding will involve viewing evidence

    does not alter this Court’s Lewis analysis. See State v. Lugo, 35 Med. L. Rptr. 1348 (Fla. 13th

    Cir. Ct. Sept. 19, 2006) (“The need to examine evidence for its admissibility is not one of the

    prongs set forth in Lewis, and is not sufficient to justify closure . . .”); State v. Kozma, 1994 WL

    397438 (Fla. 17th Cir. Ct. Feb. 4, 1994) (suppressing a defendant’s statement that included

    “potentially damaging admissions” but refusing to seal the statement because “[e]ven where

    pretrial publicity includes publication of inadmissible evidence or confessions, a defendant can

    still receive a fair trial.”)

    8. And any attendant publicity is not synonymous with prejudice. As the Supreme

    Court explained,

    [p]rominence does not necessarily produce prejudice, and juror impartiality, we


    have reiterated, does not require ignorance. Jurors are not required to be totally
    ignorant of the facts and issues involved; scarcely any of those best qualified to
    serve as jurors will not have formed some impression or opinion as to the merits of
    the case. Every case of public interest is almost, as a matter of necessity, brought
    to the attention of all the intelligent people in the vicinity, and scarcely any one can
    be found among those best fitted for jurors who has not read or heard of it, and who
    has not some impression or some opinion in respect to its merits. A presumption of
    prejudice, our decisions indicate, attends only the extreme case.

    Skilling v. U.S., 561 U.S. 358, 381 (2010) (citations omitted); See also Nebraska Press Assoc. v.

    Stuart, 427 U.S. 539, 554 (1976) (“Pretrial publicity—even pervasive, adverse publicity—does

    not inevitably lead to an unfair trial”). As such, media attention alone is not a sufficient basis for

    closure. See Kozma, 1994 WL 397438 (noting “even massive pretrial publicity about a case is

    not enough to show a serious and imminent threat to the administration of justice or to the denial

    of fair trial rights”).


    9. Second, alternatives to closure exist to protect the Defendant’s fair trial rights. For

    example, traditional techniques during jury selection can be used to insulate the jury from the

    consequences of publicity. See Lewis, 426 So. 2d at 7 (noting that when considering whether

    there is an imminent threat to a defendant’s fair trial rights, a court should consider “whether

    traditional judicial techniques to insulate the jury form the consequences of such publicity will

    ameliorate the problem”); State v. Sharrow, 29 Med. L. Rptr. 2503 (Fla. 17th Cir. Ct. Aug. 13,

    2001) (finding Defendant failed to meet burden to justify closure of suppression hearing, in part,

    because the court could effectively protect the defendant’s right to a fair trial through the jury

    selection process and insulate an impaneled jury from additional coverage).

    10. Finally, closure would be ineffective and broader than necessary to protect the

    Defendant’s fair trial rights. When “prejudicial information already has been made public, there

    would be little justification for closing a pretrial hearing in order to prevent only the disclosure of

    details which had already been publicized.” Lewis, 426 So. 2d at 8. Here, this matter has been

    public since its inception, and there is no need to close proceedings now. See State v. Bush, 31

    Med. L. Rptr. 2194, 2199 (Fla. 9th Cir. Ct. Oct. 15, 2002) (“There is no doubt that in this

    particular case, the information has already been well publicized. Accordingly, this Court finds

    that Defendant cannot meet her burden under Lewis”); State v. Smith, 34 Med. L. Rptr. 2336,

    2339 (Fla. 2d Cir. Ct. July 6, 2006) (“As to the third prong of the Lewis test, the Defendant failed

    to show that granting his motion would be effective in protecting against the perceived harm.

    Since much of this information has already been made public, there is little justification for

    granting the motion”).

    11. Rather than a hindrance to the administration of justice and Sixth Amendment

    rights, heightened public attention only increases the need for the “appearance of fairness so
    essential to public confidence in the system.” Press Enter. Co. v. Superior Court of Cal., 464 U.S.

    501, 508 (1984). Publicity is vital to an open and accountable judicial system. As former

    Supreme Court Chief Justice Berger explained, “[w]ithout publicity, all other checks are

    insufficient: in comparison of publicity, all other checks are of small account.” Id. at 509.

    12. Closure of judicial proceedings should be ordered only when there is a serious

    and imminent threat to a Defendant’s right to receive a fair trial. And even then, alternatives

    must be considered and restrictions must be narrow. In this case, there is no strict and

    inescapable necessity for closure and this Court should deny any such request.

    WHEREFORE, WFTV requests that this Court allow it to intervene in this matter for the

    purpose of opposing closure and deny any requested closure of the September 3, 2024

    proceeding.

    Respectfully submitted,

    SHULLMAN FUGATE PLLC


    /s/ Rachel E. Fugate
    Rachel E. Fugate
    Florida Bar No. 144029
    [email protected]
    100 South Ashley Dr., Suite 600
    Tampa, Florida 33602
    Tel: (561) 429-3619

    Attorneys for WFTV

    CERTIFICATE OF SERVICE

    I HEREBY CERTIFY that the foregoing has was filed with the Clerk of the Court this

    12th day of August, 2024 by using the Florida Court E-Filing Portal System. Accordingly, a copy

    of the foregoing is being served on this day to all attorney(s)/interested parties identified on the

    ePortal Electronic Service List, via transmission of Notices of Electronic Filing generated by the

    ePortal System.
    I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to

    Sarah Boone, #20005623, FDC-B4, P.O. Box 4970, Orlando, FL 32802-4970, by Regular U.S.

    Mail on this 12th day of August, 2024.

    /s/ Rachel E. Fugate


    Rachel E. Fugate

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