Camera Access in America’s Courtrooms

From the Fall 2003 issue of The News Media & The Law, page 46.

By Andrew Serros

Technological innovations have made cellular phones the latest target of judges leery of too much public scrutiny and a Florida U.S. Marshal concerned with security. Companies like Nokia and others have recently come out with image-taking cellular phones that can shoot, store, send and print photographs.

Moreover, with some phones also able to capture audio and video, it is becoming more and more common for judges to ban all phones from their courtrooms. In the Kobe Bryant case in Eagle, Colo., Judge Federick Gannett’s banning of cell phones spawned a line of frustrated reporters at the one public payphone, according to an Oct. 13 story by Television Week.

Favorable decisions allowing camera access were made in Mississippi, where a trial was televised for the first time, and in New Jersey, where the state Supreme Court refused the bar association’s request to allow any party to a case to deny camera coverage.

There were cameras in the U.S. Court of Appeals in San Francisco (9th Cir.) for the California recall election hearing, and cameras were allowed in early proceedings in the Kobe Bryant case, but barred at his preliminary hearing.

As always, camera access to the courts is a mixed bag.

Ninth Circuit allows cameras for California recall appeal

The full U.S. Court of Appeals in San Francisco (9th Cir.) granted photojournalists access to the Sept. 22 California recall election hearing, a rare opportunity for public scrutiny of the federal courts through broadcasting.

Although the first federal court case was aired in 1991, when the federal Judicial Conference authorized an experiment allowing camera coverage in eight federal courts, many judges remain reluctant to open their courtrooms to cameras. In 1996, the Judicial Conference voted to allow cameras in federal appellate courts — but not trial courts — at the discretion of the bench in each circuit. Since then, only the appellate courts in New York City (2nd Cir.) and San Francisco have instituted pilot programs to authorize camera access.

“Most of the arguments that I’ve heard have been about some reluctance of the idea that attorneys play to the cameras,” said Jim Ewert, attorney for the California Newspaper Publishers Association. “I know that a lot of judges are extremely fearful of being portrayed as Judge Ito in the O.J. [Simpson] case.”

Ewert added that some judges also feel camera access affects testimony or somehow taints the judicial process. Witnesses do not appear before appellate courts.

David Madden, manager of the public information office for the Ninth Circuit, said the court allowed the media to record and photograph the Sept. 22 hearing because there was “tremendous interest” in the recall election. The full appeals court unanimously affirmed the U.S. District Court decision, which had been overturned by a three-judge appellate panel, to not delay the election because of outdated voting machines in various counties throughout the state.

The hearing was broadcast live on C-SPAN, and the network was designated as a pool for other TV networks to feed from. The Associated Press was allowed to photograph the proceedings using a still camera.

Democratic Gov. Gray Davis was later recalled by voters, who elected actor Arnold Schwarzenegger, a Republican.

Camera access shot down in Bryant preliminary hearing

Judge Frederick Gannett of Eagle County Court in Colorado ruled that no cameras would be allowed in the Oct. 9 preliminary hearing of Los Angeles Lakers guard Kobe Bryant.

In a one-page decision, Gannett cited the Colorado code of judicial conduct, which specifically prohibits video and still cameras in pretrial hearings of criminal cases. Bryant is currently on trial for the alleged sexual assault of a 19-year-old woman who worked at a Colorado mountain resort Bryant was visiting.

Court TV, The Denver Post and the Rocky Mountain (Denver) News had petitioned the court for camera access.

Gannett allowed one video camera and one still camera in Bryant’s first court appearance, a seven-minute advisement hearing on Aug. 6. According to court rules, still and video cameras are only allowed for initial advisements and arraignments.

CBS to air first Mississippi court case

The CBS news program “48 Hours Investigates” was to air a murder trial this fall, the first case in Mississippi to be televised since the state’s Supreme Court cleared the way for courtroom broadcasts in one of the last states to permit any camera coverage of courts.

On April 17, the Supreme Court adopted rules — on a pilot program basis — to permit broadcast and still camera coverage of trial and appellate court proceedings. Mississippi was one of 11 states that still barred cameras from trial courtrooms.

Stephanie Stephens Watts is currently on trial in Forrest County Circuit Court for the murder of her husband, Dr. David Stephens. He was found dead at the family’s home in May 2001. Stephens’ death was initially ruled to be from natural causes, but an autopsy later revealed his body contained high doses of Etomidate, a general anesthesia used for surgery.

“It’s a step in the right direction in terms of informing the public about the justice system,” Justice James E. Graves Jr. told The Associated Press following the April decision. “It brings Mississippi in line with the majority of the other states which allow camera access to courtrooms.”

Graves was chairman of a panel of judges and journalists who recommended that Mississippi courts allow camera access.

Cell phones and electronics join “banned wagon”

As cell phones become more technologically sophisticated, courts are taking notice.

In September, Judge Joe B. McDade of the U.S. District Court in Rock Island, Ill., ordered that cell phones and other electronics are no longer allowed in courtrooms.

“Electronic equipment is becoming so much smaller and technologically capable of doing many things,” Jack Waters, district court clerk, told The Associated Press in a Sept. 17 story. Waters also told the AP judges have additional concerns about cell phones and other electronic equipment being used to detonate and carry explosives.

Some models of cell phones now have the ability to record audio and video, falling into the same category as cameras. The new court rule bans cameras, video recorders, audio recorders, cellular or digital phones, palm pilots, Personal Digital Assistants and computers in courtrooms.

The rule does not apply to court reporters, attorneys and law enforcement officers.

Electronics banned in southern Fla.

A new rule in the Southern Florida District Courthouse will keep cell phones and other electronics out of courtrooms.

Increasing capabilities of cell phones and similar devices have caused courthouses to become wary of electronics. Joining the growing list of concerned judiciary establishments, Southern Florida U.S. Marshal Christina Pharo passed the new rule, effective Oct. 14.

“Understand that your safety and security is paramount,” Pharo wrote, in announcing the new restrictions on the court’s Web site.

According to the posting, the court created the new rule in response “to ongoing advancements in technology” and the possibility of them being used to “conceal hazardous devices.”

The rule does not apply to court personnel, law enforcement officers and practicing attorneys. In order to bring any electronic equipment into the courtroom, a person needs to have written permission from the court, and all equipment is also subject to a five-point inspection before entering.

N.J. Supreme Court upholds camera access rules

Against the wishes of the New Jersey State Bar Association, the New Jersey Supreme Court decided on Oct. 8 to continue to allow cameras in state and municipal courtrooms at the sole discretion of the presiding judge.

In a letter to the Administrative Office of the Courts, NJSBA President Karol Corbin Walker had proposed a policy change that would require all parties in a case to consent to camera access. The rights of all parties “should not be threatened by the ordeal, and potential embarrassment, that may result from unwanted media attention regardless of the ‘importance’ of the proceeding,” she wrote.

Barbara Straczynski, NJSBA communications and marketing manager, said the bar association sent the letter in response to the court’s request for comments on its updated cameras-in-courtrooms guidelines.

Walker’s letter prompted 17 media attorneys to write to the Supreme Court, asking it to reject the NJSBA’s request. In their letter, the attorneys called the consent proposal “wholly misguided” and an “unconstitutional assault on speech and press rights embodied in the federal First Amendment.”

Louisiana civil service hearing closed to cameras

A civil service referee banned cameras from a civil hearing to adjudicate a wrongful termination lawsuit filed by a former employee of the Public Service Commission.

WWL-TV reporter Dave McNamara protested the ban as a violation of Louisiana’s Open Meetings Law. According to McNamara, the civil service hearing, held Aug. 6 in Baton Rouge, was not conducted in a courtroom, but in a “quasi-courtroom” style.

“There was a hearing officer and then they took testimony,” McNamara said. “It was not an actual courtroom.”

Current Louisiana courtroom guidelines allow cameras in the state Supreme Court, but prohibit cameras inside lower-level courtrooms. According to a statute within the Louisiana local civil rules, cameras are banned “to minimize interference with and disruptions of the court’s business.”

Even though civil service hearings were not conducted in a courtroom, Civil Service Referee Roxie Goings Clark told Baton Rouge’s The Advocate, “We are having a court hearing with witnesses; [cameras] would upset the courtroom.”

Court appearance postponed for media

A court appearance was postponed in Kansas in August and relocated to accommodate the large number of media correspondents interested in covering the case of Donna Lynette Walker.

Walker is on trial for allegedly misleading a couple into believing she was their long-lost daughter, missing since the age of 6. Walker was arrested in Topeka under a warrant from Boone County, Ind.

According to an Aug. 2 article in The Topeka Capital-Journal, first appearances at the Shawnee County Courthouse are usually held in a basement-level room. Typically, the newspaper reported, no more than a handful of journalists ever attend even high-profile cases.

However, nearly 40 media outlets requested access to Walker’s initial proceedings. In response, the appearance was moved back an hour-and-a-half and to a larger room on the courthouse’s third floor to make room for media correspondents, cameras and others interested in the case.

Ohio Supreme Court sides with TV station

In a decision in favor of camera access, the Ohio Supreme Court ordered a Feyette County court judge to allow cameras in the courtroom.

On Oct. 8, Judge Victor D. Pontius, of the Feyette County Common Pleas Court, was forced to allow cameras into the criminal trial of Matthew McCullough. McCullough was on trial for the rape and murder of Precious Canter, a pizza delivery driver and mother of two who worked in Columbus, Ohio.

McCullough, 23, was found guilty and received a life sentence with the possibility of parole in 58 years.

The Supreme Court ordered Pontious “to permit WBNS to videotape the criminal trial in accordance with” local court rules, “unless evidence is introduced supporting denial.”

WBNS filed the complaint with the state Supreme Court Oct. 7. Current Ohio legislation allows cameras in the Supreme Court by written request. u