A 3rd Circuit judge refused Thursday morning to force the media from publishing photographs taken from a Circle K security camera. Police believe the photos show the man who murdered a clerk.
"I'm not going to interfere with the public's right to know," said Judge Elanor S. Van Sciver. "I don't question that this videotape is damaging evidence, but I'm not going to close the barn door after the cows have gone out."Defense attorneys for Ernest Gabriel Hernandez, 27, filed a motion to enjoin the media from printing or broadcasting photographs taken by a camera inside the convenience store at 1692 W. North Temple the morning Todd J. Menuey, 26, was shot to death on Jan. 23.
Salt Lake police said the video was taken just before Menuey was forced to kneel down in the store's bathroom and was then shot in the head. The photographs and video were given to the media to help detectives locate the murder suspect.
Less than 24 hours after the Deseret News and other media published the photograph, police received a tip that led them to Hernandez's apartment. The woman who called police told them Hernandez had asked her to shave off his mustache on Jan. 27 - the day after the photograph was published. She said he told her he wanted to change his appearance, according to a search warrant filed in 3rd Circuit Court.
But defense attorney Richard Uday argued that identification will be one of the critical issues of the defense. He said Hernandez has denied being involved in the case, and it is "detrimental for the media to report and identify Mr. Hernandez as the perpetrator."
He said the witness who identified Hernandez as the man in the videotape was essentially shown "nothing more than a single-photo photo spread." He and attorney Brooke Wells plan to question the effectiveness of such an identification process.
Wells said the continued use of the photographs will cause "irreperable injury" to Hernandez and may prevent him from obtaining a fair trial.
But Deseret News attorney Randy Dryer, speaking on behalf of the Utah media, said the Supreme Court has ruled that prior restraints can rarely be justified. He said there are many options the court has to ensure that defendants receive fair and impartial jurors.
"This is not a case that has pervasive or widespread publicity," he said, explaining that the publicity in this case pales in comparison to the high-profile cases of Addam Swapp, Gary Bishop, Mark Hofmann and Joseph Paul Franklin. No gag orders were issued in those cases, and each received fair and impartial jurors.
"There has never, never been a pre-trial gag order that has been upheld in this state," he said. "This is not the case to be making new law."
Dryer said court documents obtained by the media explain exactly what occurs in the videotape and allege that Hernandez is the person portrayed. If the court finds that the video is damaging, he said the court would have to seal information about the case, retrieve news releases already printed and close future hearings to the public.
"Your honor would have to ask that they stick their heads in the sand and forget everything they've read about or have been told by police," he said.
Van Sciver said she believes the effects of the press are less pervasive than most people would believe. She recalled the highly publicized case against former Salt Lake County attorney Ted Cannon. When she asked as many as 100 potential jurors how many were already familiar with the case, "one lonely hand was raised."
According to court documents, Menuey, wearing a distinctive Circle K smock, is shown in the videotape stepping away from the camera and out of view. About two minutes later, Hernandez approaches the counter wearing Menuey's smock. He is then seen opening the cash register and appears to remove currency from the till.
Hernandez is charged with capital homicide and aggravated robbery.