HILLSBOROUGH SUPERIOR COURT SOUTH STATE OF NEW HAMPSHIRE STATE OF NEW HAMPSHIRE, Plaintiff, v. CODY ELLER, Defendant.

) ) ) ) ) CASE NO. 226-2011-CR-429

RESPONSE FROM KINGCAST.NET RELATIVE TO DEFENDANTS REQUEST FOR UNLAWFUL PRIOR RESTRAINT Now comes KingCast.net, by and through its Principal Christopher King, J.D., appearing as alter ego and pro se, to respond to Defendants request to have this Court deny the Notice of Ongoing Media Coverage as filed. As the grounds for the request are completely specious it must be summarily denied. I. Factual Background. In spring of 2011 Defendant Eller, of his own volition, piloted a Ford Fusion in such a manner as to cause contact with the Kawasaki ZX-14 ridden by William Hawksley. Contemporary news reports were that Defendant Eller contemporaneously stated I wasnt going to let him get past me, or words of substantially similar import. Mr. Hawksleys leg was shattered. The undersigned began following the case immediately, and has never endorsed or encouraged any unlawful activity toward Mr. Eller. The undersigned has intermittently ridden some kind of motorcycle since 1973, or thirty-nine (39) years. I have also run courtroom video since the mid 1990s when members of the community began videotaping his First Amendment criminal defense victories in central Ohio after I left the Indianapolis Star as a daily reporter and the Ohio Call & Post as an Editor and reporter before graduating from a top-50 law school. More recently, since 2009 I have been running courtroom video throughout New England and across the Country, dozens of videos primarily focusing on mortgage foreclosure but also covering police homicides, shootings and drug cases. Significantly, I have not been found to be in violation of anything, ever. Nor has there been any courtroom interruptions or anything worthy of note, ever.

I stated that I would be covering this case, up to and including trial and appeal (if applicable) from the very beginning. Moreover, I have telephoned Defense Counsel after Counselor McLeod was a tad aggressive outside and both men came to an understanding and Attorney McLeod who has ridden motorcycles apologized.1 As well he should have because Rule 1.4 provides, in pertinent part:
(4) Recording, photographing or broadcasting equipment must remain a reasonable distance from the parties, counsel tables, alleged victims and their families and witnesses, unless such person(s) voluntarily approach the position where such equipment is located. No such equipment shall be used or set up in a location that creates a risk of picking up confidential communications between lawyer and client or conferences held at the bench among the presiding justice and counsel or the parties.

Attorney McLeod and I both recognized that I was more than a reasonable distance away from Defendant Eller. However, this Motion is more likely the brainchild of Attorney Kaye, who attempted to intimate that the undersigned is not a legitimate reporter as the two men approached the doorway the following colloquy ensued: Ill find out who you are, Ill look it up in the record and Ill make a complaint that this guy got in my way and interfered with my business.2 What is your business? My business is reporting the news. Yeah. Youre not a. Yeah yeah huh Im not a what, Sir did you have something more to say to me? I dont have anything to say to you. Well you started to just now...
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Subsequent calls have not been returned, but if we really want to get into how ridiculous this Motion is, the Court could Order Counsel to bring a copy of the voicemails into Court to prove that I was professional in seeking information necessary to report on this case. Fortunately by objecting to the Media Notice I received a copy of the Court ORDER which I was then free to use in the telephone interview with Garage 71. http://garage71.com/Home.html
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The need for the Complaint has been obviated, at least between Attorney McLeod and the undersigned and it was our agreement that we would proceed onward with the understanding that I would not get directly in Mr. Ellers face and Attorney McLeod would not get in mine. But just when I was getting complacent up comes this Bad Faith attempt to have the Court practice Unlawful, Unconstitutional Prior Restraint.

Against this backdrop now comes Defendant, by and through counsel, to intimate to the Court that the undersigned is now all of a sudden going to: a) jury tamper and; b) encourage or threaten bodily harm to Defendant. These accusations are at once insulting and completely baseless. Jury tampering would mean the end of my career as a courtroom journalist. Moreover, not only has the undersigned won First Amendment trials and worked for major, medium and small press, he was awarded a First Amendment Mayoral Commendation for work in the publics best interests and Right-to-Know in Nashua, New Hampshire the precise situs of this case!

LAW AND ARGUMENT I. The New Hampshire Presumption is in Favor of Media Access to Trials. The Court is well aware that the New Hampshire Supreme Court recently changed its rules to reflect a heavy presumption in favor of electronic devices to be allowed in the Courtroom by the general populous. Prior to the revision, the undersigned noted back in 2005 Theres no privacy in a public courtroom!

That presumption dovetails with the relevant subsection of the Rule:

(f) At any hearing conducted pursuant to subsections (c) or (d) of this rule, the party or person seeking to prohibit or impose restrictions beyond the terms of this rule on the photographing, recording or broadcasting of a court proceeding that is open to the public shall bear the burden of demonstrating: (1) that the relief sought advances an overriding public interest that is likely to be prejudiced if the relief is not granted; (2) that the relief sought is no broader than necessary to protect that interest; and (3) that no reasonable less restrictive alternatives are available to protect the interest. Any order prohibiting or imposing restrictions beyond the terms of this rule upon the photographing, recording or broadcasting of a court proceeding that is open to the public shall be supported by particularized findings of fact that demonstrate the necessity of the courts action. *********** With all due respect there is simply no way that Defendant can meet his burden. The public interest lies in making certain that people who maim others through vehicular aggression or negligence stand trial for their actions, much the same way as in the tragic case of the vehicular homicide two blocks away from the Courthouse in the Yvonne Hernandez case in which the undersigned paralleled to this case.3 From the Nashua Telegraph 22 Dec. 2009:

But it was the prosecutors version of events that proved more persuasive. Hernandez was mad, she knew where she was and knew what she was doing when she turned around her 1997 Dodge Intrepid in the dirt lot and drove at Beaudoin and his friends. She may as well have opened fire on the group, Morrell said. On May 2, 2008, the defendant, Ivonne Hernandez, took aim, cocked the trigger and fired a deadly weapon, murdering Matthew Beaudoin, 29-year-old Matthew Beaudoin, Morrell said to kick off her closing statement Monday morning.
Any movement by this Court to limit coverage of this case would at once be over and underinclusive (and not narrowly-tailored) because I could find other ways to influence the jury or encourage violence if that was my goal. I know plenty of private investigators, and I could find out the jurors

identities and addresses and have people sidle up to them at a bar, for example. Or I could go online and actively encourage people to trail Mr. Eller about and threaten him. The possibilities are endless if that were really my goal, but that isnt my goal and Defense Counsel knows this full well, he is simply trying to keep his clients image out of the press and that is completely impermissible and he should be sanctioned by the Court for wasting its time and my time.

II.

The Conduct of KingCast.net as Witnessed in Video Already Published Indicates a Level of Professionalism that Vitiates Defendants Purported Concerns. The Court indicated that it would hold Defendants Motion in Abeyance until

the undersigned appeared for argument on the matter, but really there is no argument. The Defense Counsel and the Court are free to review the videos shot at the Courthouse published throughout the month of October as well as the radio interview from last evening (30 October 2012) on Georgias Garage 71: http://garage71.com/Home.html
Garage 71 On air interview as road rage defendant Cody Eller tries to ban media at trial.

http://www.youtube.com/watch?v=v0_2NQP4ZhE (Enclosed DVD as Exhibit 1). On review of those videos it will become readily apparent that I did nothing wrong, I was at all times at least 25 feet from Defendant Eller when the Court, Defense Counsel and everyone can take Judicial Notice that media are allowed to within five feet or even closer when covering news stories. As such, if anyone needs to be cautioned by the Court it is Defense Counsel, and not the undersigned. III. A Note of General Concern About Small Press and Major Press. The attempts by the Defendant to censor the media must enjoy stern rebuke. This is America, and in America we have a tradition of free press striking back to the days of the original pamphleteers, and there is perhaps no single individual in Nashua in recent history with a more vigorous and principled history of First Amendment scholarship and practicum than the undersigned reporter. Unless or until I encourage some type of lawlessness then what I do with that courtroom footage (outside of

sharing it with the media pool) is my business and my business alone. Thats a fact. And thats the Law. In Conclusion I note in Exhibit 1 that Defendant would not dare try to pull such a stunt if they witnessed Union Leader publisher Joe McQuaid sign in on the case, yet that very same publisher has a history of running editorial content that was attacking, arguably racist and untrue about the undersigned and he did it without even attempting to contact me for my side of the story or more information (Editorial and Dismissal seen at Exhibit 2). When the Truth came out my side was the correct side, and he was so humiliated by the process that he quietly removed the offensive editorial from his web page. But not before I captured it. Attorney McLeod should certainly be sensitized to the NH AG Dog and Pony Show given its baseless attack on him that cost part of his career as it did to the undersigned, who had to resign as Director of the Higher Education Learning Program (HELP), with well-respected NH education personnel as Board Members.4 Be that as it may, in contrast I have telephoned defense counsel in Good Faith but they have refused to return my phone calls. Thats fine and good, if they dont want to talk anymore but for them now to come crying to this court with purported concerns of biased coverage is patently disingenuous in light of their refusal to talk and in light of the even-handed way I have been covering the courtroom proceedings. Moreover, it smacks of thinly-veiled contempt for motorcyclists and the alternative press to assume that I am going to throw away my career as a journalist by jury tampering or inciting violence. I am insulted and the Court should be as well. IV. Conclusion. The Objection must be summarily denied, with a Court ORDER noting that Defense Counsel is not to unduly interfere with any media outside of the Courthouse. Respectfully submitted, /s/Christopher King, J.D. __________________________________
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If anything editor McQuaid and WMUR could be accused of trying to exert undue influence on the jury pool given their immense circulation and market penetration. They ran extremely negative stories and never once attempted to contact me. Yet the Defendant would not ever question their right to appear at trial. Well unlike the UL and WMUR I am here to present a balanced story, even though I am under absolutely no Constitutional mandate to do so. That is my own Constitution as a journalist and former trial attorney walking into a courthouse.

KingCast.net By and through Christopher King, J.D. 617.543.8085m

CERTIFICATE OF SERVICE I the undersigned, solemnly swear that a true copy of this Reply Memorandum was delivered via facsimilie and Regular U.S. Mail on 30 October, 2012 to: Jeffrey M. Kaye, Esq. 302 Broadway Methuen, MA 01844 978.682.4200 Manchester, NH 03101 Ross McLeod, Esq. 302 Broadway Methuen, MA 01844 978.687.6289 Karinne E. Brobst, Esq. Kent E. Smith, Esq. Temple St. Courthouse 19 Temple Street Nashua, NH 03060 603.594.3257 /s/Christopher King, J.D. __________________________________ KingCast.net By and through Christopher King, J.D. 617.543.8085m

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