BALLARD SPAHR LLP Michael Berry (No. 86351) AIBHAY -3 PH 3:32 berrym@pballardspahr.com Paul Safier (No. 209154) safierp@ballardspahr.com 1735 Market Street, 51st Floor Counsel for ABC, Inc., The Associated Press, Philadelphia, PA 19103 BuzzFeed, Inc., Cable News Network, Inc., Tel: (215) 665-8500 CBS Broadeasting Inc., NBCUniversal Media, Fax: (215) 864-8999 LLC, NYP Holdings, Inc., The New York Times Company, and WP Company LLC IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA - CRIMINAL DIVISION COMMONWEALTH OF : PENNSYLVANIA di CP-46-CR-3932-2016 vs. WILLIAM H. COSBY, JR. RESPONSE TO THE COMMONWEALTH’S POST-ARGUMENT OPPOSITION TO MEDIA COALITION’S MOTION FOR IMMEDIATE ACCESS TO DISCHARGED JUROR NAMES ‘Non-party Intervenors ABC, Ine. (on behalf of WPVI-TV, American Broadcasting ‘Companies, Inc., and ABC News), The Associated Press, BuzzFeed, Inc. (publisher of buzzfeeed.com), Cable News Network, Ine., CBS Broadcasting Ine. (on behalf of CBS News and KYW-TV), NBCUniversal Media, LLC (on behalf of NBC News and WCAU-TY), The New York Times Company, NYP Holdings, Inc. (publisher of the New York Post), and WP Company LLC (publisher of The Washington Post) (collectively, the “Media Coalition”), through their undersigned counsel, hereby respond as follows to the Commonwealth's Post-Argument ‘Supplement in Opposition to Intervenors’ Motion for Immediate Access to Discharged Juror Names (“Supplement”), filed earlier today. In particular, the Media Coalition responds to the Commonwealth's suggestion that this Court only grant access to the juror names after a “coolingoff” period of as much as 90 days. Supplement at §f 14-17.' ‘That is a suggestion that has no application here, While the Commonwealth is technically correct that, in Commonwealth v. Long, 922 A.2¢ 892 (Pa, 2007), the Supreme Court “made no mention of the timeframe within which juror names had to be disclosed,” Supplement at § 10, that is highly misleading. ‘The holding of Long is that the trial court erred in denying the media intervenors’ motion for access to the juror names, a motion they made, as this Court noted at the hearing held earlier this week, prior ro the verdict. Long, 922. A.2d at 895. Thus, Long provides that the qualified First Amendment right of access to juror names attaches during the trial, and that, accordingly, any delays in granting aceess to those names must be justified under the First Amendment standard ~ ie, that “closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id at 905 (quoting Press-Enter. Co. v. Superior Court of Cal., 478 U.S. 1, 13-14 (1986)); see also United States v. Wecht, $37 F.3d 222, 239 (3d Cir. 2008) (“[W]e believe that this presumptive First ‘Amendment right of access to the identities of jurors attaches no later than the swearing and empanelment of the jury.”), Further delay cannot be justified under that standard here. The case on which the Commonwealth principally relies in advocating for significant ‘further delay in the release of the juror names ~ State of Florida v. Casey Marie Anthony, No. 48-2008-CF-015606-AO (Fla. Cir, 2011) (cited in Supplement at §] 15) ~ involved markedly different circumstances.” In that case, there were specific threats to juror safety. In particular, "The Commonwealth’s argument that the privacy rights of the jurors overcome the First ‘Amendment right of access to the juror names, Supplement §f 1-13, was addressed at the hearing held on the Media Coalition's motion on April 30, 2018. The Media Coalition stands on the arguments made at that hearing and in its motion. ‘he other cases on which the Commonwealth relies all involved delays of 7 to 10 days, which are not so different, if at all, from what has already occurred here. 2the Anthony court made the following factual findings in justifying its delay in releasing the juror names: [Immediately after the verdict was read, a large crowd gathered at the courthouse complex. Many, if not all, were outraged and distressed by the verdiet, and were not hesitant to show their contempt for the jurors. Many held hand-written signs indicating their displeasure with the verdict, including that read ‘Juror 1-12 Guilty of Murder!!!”; “Somewhere a Village is Missing 12 Idiots”; “Arrest the Jury! No Balls.” . ..[IJt was publicly reported that one juror had been forced to quit work and leave the state because of threats she had received. . . The Court, via court staff, confirmed with the juror involved that she had left the state and has remained out of state since the verdict was rendered. Anthony at 4-5. ‘The facts here are not remotely like that. Indeed, as this Court appropriately noted at the hearing, there are no facts in the record that would support any findings at all about harms that might result from the release of the juror names, let alone findings comparable to those found to justify the 90-day “cooling off” period in Anthony. ‘The jury reached its verdict over a week ago. Every day that passes without granting the press and public the “immediate access” to the juror names to which they are constitutionally entitled, the “value of openness itself” ~ a fundamental pillar of our judicial system ~ “is threatened.” United States v. Simone, 14 F.3d 833, 842 (3d Cir. 1994); see also Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (“The loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes irreparable injury.”). ‘The Media Coalition, accordingly, respectfully rates its request for immediate access to the juror names, DATED: May 3, 2018 BALLARD SPAHR LLP vy. a GAD = Michael Berry Paul Safier Michael Berry berrym@ballardspahr.com Paul Safier safierp@ballardspahr.com 3BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 Tel: (215) 665-8500 Fax: (215) 864-8999 Counsel for ABC, Inc., The Associated Press, BuzzFeed, Inc., Cable News Network, Inc., CBS Broadcasting Inc., NBCUniversal Media, LLC, The New York Times Company, NYP Holdings, and WP Company LLCCERTIFICATE OF SERVICE Thereby certify that on this date, I caused a true and correct copy of the foregoing Response to be served upon the following counsel of record via email Dated: May 3, 2018 and hand delivery: District Attomey Kevin Steele Office of the Distriet Attorney Montgomery County Courthouse P.O, Box 311 Norristown, PA 19404-0311 Email: KSTEELE@monteopa.org Attorney for the Commonwealth Lane L. Vines Berger & Montague 1622 Locust Street Philadelphia, PA 19103 Email: Ivines@bm.net Attorney for Defendant William H. Cosby, Jr Eli Segal Pepper Hamilton, LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Email: segale@pepperlaw.com Attorney for Non-Party Intervenors Philadelphia Media Network, PBC, LNP Media Group, Inc., PG Publishing Co., Inc., and WHYY, Ine. Lt ZA Paul Safier