Courts Debate Television Broadcasting of Court Proceedings, Jury Deliberations

By Kirsten Murphy, Silha Fellow and Elaine Hargrove-Simon, Silha Fellow and Bulletin editor

ABC News has started reviewing cases for a Colorado version of "State v.," a national television program that offers a behind-the-scenes look at a criminal trial from the prosecution and defense preparation work through the verdict.

The Colorado Supreme Court granted ABC access to Colorado criminal proceedings on Dec. 12, 2002, according to the Denver Post, giving the network permission to film testimony, jury reaction, jury deliberations and attorney strategy discussions. ABC News will pay nothing for the right to broadcast the cases.

Karen Salaz, a spokeswoman for the state court administrator's office in Denver, told The Reporters Committee for Freedom of the Press that the seven state Supreme Court justices reviewed the network's filming of "State v." in Phoenix last summer and decided a similar educational project in Colorado would serve public interest. A special order from the Arizona Supreme Court gave "State v." total access to a series of homicide cases in Phoenix. (See http://abcnews.go.com/onair/DailyNews/State_v_020619.html) Five cases were followed in their entirety.

In a written order on Oct. 10, 2002, Colorado Chief Justice Mary J. Mullarkey altered the Colorado Code of Judicial Conduct Canon 3 (A) (7) - (8) that limited electronic and photographic access to court proceedings. Trial judges may now waive provisions of the canons to permit filming of "State v." All parties including defense attorneys, defendants, prosecutors, victims and jurors must consent to the waiver.

The parties, judges and jurors may curtail the coverage at any point if they believe it jeopardizes the trial in any way. A videotape of the trial could air only after a decision has been reached in each case. David Kaplan, a Colorado public defender, said his office would not participate in "State v.," according to the Denver Post, citing concerns about the attorney-client privilege. He will reconsider his decision on a case-by-case basis.

However, in Texas, the Court of Criminal Appeals ruled that jury deliberations
could not be videotaped in a capital murder trial, even if the operators were not present, but running the cameras by remote. In Texas v. Poe (2003 Tex. Crim. App. LEXIS 37), the court reversed the decision of State District Judge Ted Poe. He had decided in 2002 to allow WGBH-TV's program "Frontline" to tape deliberations in the trial of 17-year-old Cedric Harrison, who allegedly shot a man during a carjacking. The camera would be operated by remote control, so no one besides the jury would be physically present in the room. "Frontline" further agreed that the trial and deliberations would not be aired live, but would be edited to about an hour and aired after the trial was completed.

Harrison himself agreed to the taping. "Frontline" then asked potential jurors if they would mind the taping. Thirteen of them were "excused by agreement" because "they had a problem about having the case videoed." Prosecutors then appealed Poe's decision to videotape the proceedings.

The majority of the criminal appeals court focused on the meaning behind the first sentence of Article 36.22 of the Texas Code of Criminal Procedure, which states, "No person shall be permitted to be with a jury while it is deliberating." Judge Barbara Hervey, writing for the majority, stated, "[O]ur interpretation of the [first sentence] is also consistent with the ancient and centuries-old rule that jury deliberations should be private and confidential in order to promote 'freedom of debate,' 'independence of thought,' and 'frankness and freedom of discussion and conference.'" In a concurring opinion, Judge Tom Price wrote that even though the camera in the jury room would be operated by remote control, the jurors would not truly be alone. "The camera brings the viewers to the jury just as surely as it brings the jury to the viewers." Judge Cathy Cochran, also concurring, noted that 13 jurors were peremptorily excused because they admitted the presence of a camera and the subsequent broadcast could affect their ability to come to a decision. "These jurors were eliminated for reasons wholly unconnected to their ability to follow the law or to fairly consider the evidence," she wrote.

Furthermore, Cochran wrote, the practice of interviewing jurors for their comments on the decision-making process following a trial has threatened "our common-law policies of the sanctity and secrecy of jury deliberations . . . Popular culture is now grossly at odds with the jury's history and function. Potential jurors are being taught that their deliberations will not be secret at all. . . . To the media, the jury appears to be just another institution about which the public has a 'right to know.' A trial is a public event. But the jury deliberation room is not the courtroom." (Emphasis in the original.)

Cochran suggested that "Frontline" could make a documentary that "emphasized, rather than intruded upon, the confidentiality of juror deliberations and the protection afforded the public from any abuses of that process." Judge Sharon Keller dissented, stating that a trial court generally has "broad discretion" to determine how the trial is to be conducted, "even to the point of implementing procedures . . . that are not expressly forbidden."

Judge Michael Keasler also dissented, writing, "My heart is with the majority, but my mind cannot agree," citing the fact that other courts, such as a criminal court in Milwaukee and several in Arizona, allow videotaping. Furthermore, Keasler added, Article 36.22 could not possibly pertain to television or radio recording of deliberations because the statute was enacted in 1925, when "television was the stuff of science fiction." Local Governments Stifle the Press: Minneapolis Mayor Muzzles Cops

By Elaine Hargrove-Simon, Silha Fellow and Bulletin editor

Although he has declined to specify exactly how the communications system between the police and the media has failed, in early February 2003 Minneapolis Mayor R.T. Rybak ordered police officers to check with city hall before speaking to reporters. In a memo to Police Chief Robert Olson dated February 5, 2003, Rybak wrote: "The Communications Department will sign off on all external police communications, including but not limited to news releases and interviews." The police department spokeswoman, Cyndi Barrington, resigned following the issuance of the memo. The media have expressed concerns over their need for accurate and timely information from police sources.

Rybak claimed he wrote the memo in an effort to centralize "all strategic decisions about how - and when - the Police Department communicates with the public via the media." Rybak reportedly has said citizens have told him that rising crime is a problem, and that police are not trained to respond properly to calls for help. "That is simply not the case," Rybak was quoted as saying in stories appearing in Minneapolis Star Tribune and the Associated Press. "We need to tell people the reality of what's going on - the good, the bad, and the ugly." He justified his action on the grounds that, "It was wasteful and confusing to citizens to have people in all different parts of the city involved in communications and not working together," Rybak said. He denied that the action was "about muzzling cops." But Lt. Mike Sauro, head of the sex-crimes unit, was quoted as saying, "It's censorship. End of discussion."

Rybak's February 5 memo also detailed plans for the police department's spokeswoman job to be merged with the communications department. Had Barrington not resigned, she would now report to city spokeswoman Gail Plewacki, a former police officer and television reporter. Chuck Wexler, executive director of the Police Executive Research Forum in Washington, D.C., told the Associated Press that he is not aware of any other major U.S. city where the city communication office filters police information.

According to the Associated Press, Rybak partially backed down following a meeting on February 6 with police commanders. Officers will still need to notify City Hall when the "media questions city or police policy, when an officer's conduct is in question, or when an officer is involved in a shooting." Officers may, however, provide any other information at crime scenes.

The national Society of Professional Journalists urged Rybak to keep the lines of communication open, citing the model provided by Alabama governor Bob Riley. In early February, Riley issued a memo to his cabinet members telling them that public records should be released promptly upon request. Agency heads did not need to seek prior approval from Riley's legal staff, the memo stated, unless there were questions of law. Such openness had not been the case with Riley's predecessor, former Governor Don Siegelman, who, like Rybak, ordered requests for information routed through his press office for approval by his legal advisor.

"Mayor Rybak's ham-handed attempt at limiting information to the public sets a bad example that other mayors will be tempted to follow," said SPJ President Robert Leger, who is also editorial page editor for the Springfield (Mo.) News-Leader. "Rybak's example, though, is a blow to representative government, which depends on information to work. That's why he should rescind his policy, and why other mayors should resist following suit." Secrecy and heavy-handed controls on information "offend a democratic people," the statement continued. SPJ urged Rybak to revisit his policy on communication with the media, and encouraged him to facilitate and not hinder the flow of information to the community. The statement, dated Feb. 13, 2003, is available online at http://www.mnspj.org/mpd.asp.

Rybak, who was elected to the Mayor's office in November 2002, is an Internet consultant and community activist. He has also worked as a reporter for the Minneapolis Star Tribune, and was publisher of the Twin Cities Reader, an alternative weekly that stopped publishing in 1997.

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This page contains a single entry by cla published on November 9, 2009 1:37 PM.

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