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Appeals court overturns judge's order barring L.A. Times from publishing photographs of murder defendant

August 19, 2010 |  3:09 pm

The California Court of Appeal on Thursday overturned a judge's order barring The Times from publishing "lawfully obtained photographs" of a murder defendant, calling her 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 his ability to get a fair trial. (In some law enforcement reports, Tersargyan's name is spelled Tersargsyan.)

The judge said she had to balance competing rights. Jeff Glasser, an 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.

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 immediately reached for comment.

The judges said the decision will be final as of Monday. Late Thursday, Merritt vacated her order, 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

Pictured from left to right: Lusine Safaryan, Khachik Safaryan, Karine Hakobyan, Julie Kates Learn more about the four people Tersargyan has been charged with murdering on The Times' interactive Homicide Report

Top photo: Alberd Tersargyan, 60, appeared in Los Angeles County Superior Court on Aug. 4, 2010, facing three additional murder charges. Credit: Al Seib / Los Angeles Times