From the Spring 2001 issue of The News Media & The Law, page 29.
The first federal execution since 1963 has spurred discussion about the constitutionality of a federal law barring recording equipment from executions. The U.S. Attorney General granted permission for a precedent-setting closed-circuit telecast for survivors of the Oklahoma City bombing and victims’ family members, but a request by an Internet company to webcast the execution was denied by a federal district judge in Indiana.
Several judgments admitting cameras have opened up courtrooms to the news media. The federal appeals court in the District of Columbia allowed a rare degree of recording access in a landmark antitrust case, and despite a law prohibiting cameras from New York’s courtrooms, judges in the state continue to permit televised trials. On the other side of the country, a California judge granted permission to televise a trial for a woman charged in a 1975 attempted bombing.
No webcast of McVeigh execution
The day before the sixth anniversary of the Oklahoma City bombing, a U.S. District Court judge refused to allow an Internet company to carry a live feed of the execution of convicted Oklahoma City bomber Timothy McVeigh.
Entertainment Network, Inc., which operates adults-only subscription Web sites, claimed that a federal law barring the broadcast of executions violates the First Amendment.
“Whatever First Amendment protection exists for viewing executions, it is not violated by [the Bureau of Prisons’] explicit regulation against recording or broadcasting them to the public,” Judge John Tinder of the federal district court in Terre Haute wrote in a 31-page decision released April 18.
ENI argued that the impending execution of McVeigh, the first of a federal prisoner since 1963, carried a compelling public interest that would warrant widespread dissemination.
“Mr. McVeigh committed a terrorist act against our entire country and the victims of that attack — the American people — should be able to witness his execution,” Derek Newman, an attorney for ENI, said in his brief. “The United States government is sponsoring the killing of a human being, and it is doing so on behalf of its citizens.”
Following a lengthy discussion of previous cases that considered analogous questions, Tinder said he was persuaded “that the right ENI asserts — the right to record or broadcast an execution from within a prison — does not exist.”
A spokesman for ENI said April 27 that the company did not have enough time to appeal to the U.S. Court of Appeals in Chicago (7th Cir.) before the execution date, which was less than three weeks away. It also decided not to mount an appeal to the U.S. Supreme Court for a rare emergency ruling.
“We believe we have brought an important First Amendment issue to the attention of the American people, the media and the courts,” ENI Chief Executive David Marshlack said in a statement announcing the decision not to appeal. “The Internet allows the transmission of news and information in ways not foreseen when laws were written. Judges have never had to deal with the question we raised about how government imposes the most severe punishment it can mete out.”
McVeigh was convicted of the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people. The execution was scheduled for May 16 at a federal prison in Terre Haute. (Entertainment Network Inc. v. Lappin)
Closed-circuit broadcast of McVeigh execution available to families
Survivors of the Oklahoma City bombing along with the family members of those who died obtained permission from the attorney general to watch Timothy McVeigh receive a lethal injection on May 16.
In a press conference on April 12, Attorney General John Ashcroft said the federal Bureau of Prisons’ regulation that only eight victims or family members may witness an execution was “inadequate” given the magnitude of the attack on the Alfred P. Murrah Federal Building. Ashcroft’s decision marks the first time people not at the location can view a federal execution.
“It is a unique set of circumstances that confront us,” Ashcroft said. “The Department of Justice must make special provisions to assist the needs of the survivors and victims’ families in accordance with our responsibilities to carry out justice.”
Letters went out to about 3,000 victims and family members with details about the closed-circuit broadcast, which will be held at a federal prison facility in Oklahoma City. Survivors and family members had until May 1 to reserve a seat.
Ten witnesses were allowed in the viewing chamber.
Ashcroft said federal regulations prohibit recording executions so an encrypted, instantaneous transmission of the event will be sent via high-speed digital telephone lines.
The idea of a closed-circuit telecast came after more than 250 survivors or family members asked to witness the execution. In 1996, survivors and family members watched McVeigh’s trial in Colorado via closed-circuit technology while in Oklahoma City.
Ashcroft also announced that he would not allow any televised interviews with McVeigh. McVeigh is allowed to use the telephone for 15 minutes a day and Ashcroft said he could use those calls to speak to reporters.
“As an American who cares about our culture, I want to restrict a mass murderer’s access to the public podium,” the attorney general said. “I do not want anyone to be able to purchase access to the podium of America with the blood of 168 innocent victims.”
The execution will take place at a federal prison in Terre Haute, Ind.
Full coverage of former SLA member’s trial for bombing attempt
Both still and video cameras will be allowed in the Los Angeles trial of a former Symbionese Liberation Army member under an April 13 order.
Broadcast media, including Court TV, and the defense attorney fought for the admission of cameras because the trial has great public interest. Sara Jane Olson, formerly known as Kathleen Soliah, is accused of trying to bomb Los Angeles police cars in 1975 in retaliation for the deaths of six SLA members in a police shootout. The bombs did not detonate. Olson had been living as a Minnesota housewife and mother until her arrest in June 1999 after her picture appeared on the television program “America’s Most Wanted.”
During the March 30 hearing on camera access, Superior Court Judge Larry P. Fidler told the prosecution: “There is going to be coverage of this case and the print media is free to report on what happens in this trial. You have to tell me how the television coverage differs.”
Prosecutors argued that testimony in the trial could teach viewers how to make bombs. They also said if allegations about the SLA’s possible involvement in a 1975 murder committed during a Sacramento area bank robbery were to arise during testimony, it could undermine the accused’s right to a fair trial if the case were to go to court.
In issuing guidelines for camera coverage on April 24, Fidler said, “This court finds that the public interest in viewing and studying the instant proceedings outweighs any adverse effect that may result due to the coverage.”
Fidler said he will decide on a witness-by-witness basis who can be televised. He also said he will not allow any coverage of testimony regarding how to make bombs. Three television cameras will have fixed views of the lawyer’s podium, the judge’s bench and the witness stand. (California v. Olson)
New York Assembly to air sessions
The New York State Assembly later this year will join the ranks of 25 states that already televise their legislatures.
Assembly leaders announced on April 17 that the Assembly will begin live broadcasts of its deliberations before the summer recess. A 10-member committee has continued deliberating with representatives from the cable industry to discuss broadcasting options. The specific channel where viewers can tune in the televised sessions remains unknown.
The state Senate will not join the Assembly, but plans to add a live video broadcast on the Internet to supplement the audio feed that began earlier this year.
Senate Majority Leader Joseph Bruno (R-Brunswick) has said televising the proceedings would be too costly. A legislative task force said last year that the broadcast could cost $30 million a year. The figure is more than 10 times as much as any other state that televises its legislature, according to a report commissioned by Common Cause and released in mid-April by researchers at the John F. Kennedy School of Government at Harvard University. The report said 25 states currently televise some portion of their state legislatures’ sessions.
Assemblyman Ronald Canestrari told The New York Times that the Assembly has not decided who will direct the television coverage, thus deciding which camera angles to use and which debates to rebroadcast in the evening.
Along with the New York State Assembly, the Illinois and Wisconsin state legislatures also will begin televising their proceedings this year.
Trial judge strikes down camera ban
A New York law that prohibits cameras in state courtrooms was ruled unconstitutional by a Sullivan County judge. Judge Frank J. LaBuda will permit video cameras at a murder trial after he decided that the law is unconstitutional.
LaBuda granted a request by WRNN television on March 30 to record the trial of defendant Anthony Schroedel because, the judge said, section 52 of the state’s Civil Rights Law cannot withstand modern-day constitutional scrutiny. The section, which prohibits the use of cameras, has been in effect since 1952, although there have been numerous statewide experiments with cameras in the courts.
The decision came less than a month after LaBuda said he would allow the Middletown Times-Herald Record to use a still camera at the trial.
Anthony Schroedel is charged with multiple counts of first- and second-degree murder, attempted first-degree murder and other felonies for allegedly stabbing to death Barbara Vogt and seriously injuring her son J.T. If convicted of first-degree murder, Schroedel could be sentenced to death by lethal injection.
“The citizens of Sullivan County have a right to know under what circumstances a person may or may not receive the death penalty,” LaBuda said in his ruling. “Openness of the judiciary should always be favored when the knowledge of society can be enlarged and the rights of all safeguarded.”
Pauline Toole, a spokeswoman for the Capital Defender Office, said an appeal was never filed but was contemplated. Such an appeal would have been the first appellate review of the constitutionality of section 52. (New York v. Schroedel)
New York State Bar backs plan to use cameras irrespective of consent
The New York State Bar Association narrowly endorsed an effort to put still and video cameras back into the state’s courtrooms without the consent of the parties. The association’s previous position required all parties to consent before cameras were allowed to cover a case.
The issue of obtaining consent was one of several elements bar association delegates debated prior to approving the measure on March 31. Many delegates objected to cameras, arguing the cameras diminished the “public trust and confidence in the legal system,” were not appropriate in some cases, and would invade the privacy rights of crime victims and witnesses. Some delegates concluded cameras would deter witnesses from voluntarily testifying.
A. Vincent Buzard, chairman of a committee whose recommendations were adopted, said to require consent would give full veto power to one party.
“In the five states we looked at which now have a consent requirement, there is virtually no television coverage,” Buzard said in his statements to the members of the bar. “It doesn’t happen.”
Martin Adelman, a dissenting member on the committee, argued that without a counsel’s ability to promise no camera coverage, some victims and witnesses may leave the jurisdiction, refuse to participate or even attempt suicide.
There is currently no legislation pending to change the rules regarding cameras in the courtrooms, but Gov. George Pataki and the state’s chief judge, Judith Kaye, have called for a cameras-in-the court law to standardize the circumstances under which cameras would be permitted.
Cameras and recording equipment have been banned from New York’s courtrooms since 1952, except for an interval between 1987 and 1997. This experimental period, which began as a two-year trial, put a temporary hold on a statute banning trial coverage when witnesses appear or may appear under subpoena. During the 10-year experiment, judges could grant camera access to the courtroom with the consent of all the parties.
In the years since, some judges have continued to allow camera coverage of trials after finding that the law banning cameras is unconstitutional. The most prominent of these came in February 2000 when Justice Joseph Terisi allowed Court TV to cover the Amadou Diallo case, in which four New York City police officers were tried and acquitted of killing an unarmed man.
D.C. Circuit permits live audio feed of arguments for first time
The importance of a landmark antitrust case convinced the U.S. Court of Appeals for the District of Columbia to allow for the first time a live audio broadcast of oral arguments.
On Feb. 26 and 27, the court heard seven hours of argument in Microsoft’s appeal of a ruling that it illegally protected its software monopoly and should be divided into two companies.
“Due to the widespread public interest in this case and the limited seating, live audio-feeds of the arguments will be made available to the news media through the Network Pool,” the court said Feb. 12.
Only a few federal appeals courts allow live broadcast of arguments and such access is rare.
Along with distribution through the television network pool, ABC News and C-SPAN made the audio available on their Web sites. In addition to the live feed, reporters were able to record the arguments using a “mult-box” hookup in the press room. A mult-box splits the audio signal allowing multiple users to plug into the audio feed. Recording equipment was not allowed in any other part of the courthouse. (United States v. Microsoft)
Wisconsin judge opens murder trial to cameras despite vocal opposition
The action of one judge and the public comments of another signal a potential split among the judiciary about the 22-year-old practice of permitting cameras in the state’s courtrooms.
Waukesha County Circuit Judge Patrick C. Haughney rejected a request by the district attorney to exclude recording devices from a September murder trial. The district attorney had sought to prevent television and still cameras from covering the trial of Ronald Wolfe Jr. Assistant District Attorney Susan Opper said several witnesses scheduled to testify against the defendant were concerned that disclosure of their names and faces would subject them to harassment.
In denying the request, the judge said there will be people who are reluctant to testify in every case for similar reasons, but to exclude cameras would be an unnecessary and extraordinary measure.
Opper said there is a reason why witnesses balk at cameras.
“I think a lot of this is fallout from the Chmura trial,” she said in a Milwaukee Journal Sentinel article.
Circuit Judge Kathryn Foster criticized the media for its coverage of the sexual assault trial of Mark Chmura, a former professional football player. During the trial, Court TV and WYMJ-AM aired the last name of Chmura’s accuser despite a judge’s request that the name not be aired. Chmura was acquitted in early February of sexual assault and child enticement charges.
Foster, chief judge of the 3rd Judicial Administrative District, said she was considering asking the state Supreme Court to ban recording equipment from sexual assault trials.
Cameras have been allowed in Wisconsin’s courtrooms with a judge’s consent since 1979. Judges at times have ordered that certain witnesses or jurors not be identified or photographed. It has been customary for journalists in Wisconsin to refrain from identifying any alleged sexual assault victim. Foster, in the Sentinel article, said she is concerned that mistakes will continue during live broadcasts despite broadcasters’ best efforts. (Wisconsin v. Wolfe)
Tennessee murder defendant loses request to exclude cameras
A Tennessee judge on March 16 rejected a claim by an accused murderer that camera access to his trial would infringe on his constitutional right to a fair trial.
The attorney for defendant Javvor Thomas, 19, accused in the shooting death of a 24-year-old woman, asked the court to bar cameras. He said that potential witnesses could learn from the media how others testified and then alter their own testimony, making it impossible for Thomas to receive a fair trial.
Knox County Criminal Court Judge Richard Baumgartner denied the defense motion, citing the Tennessee rules that afford camera use in the courts. The only way to guard against witnesses learning of testimony, the judge said, would be to completely close the court to all media personnel and others who could potentially disclose statements made on the stand.
“That option flies in the face of the constitutional guarantee of a public trial and is clearly not an alternative this court is willing to entertain,” Baumgartner wrote in his order.
The motion followed one filed in February that sought to prohibit all media coverage of the trial.
Attorneys for the Knoxville News-Sentinel and WBIR-TV, both of which argued to block the motion, said defense attorney Ursula Bailey failed to give evidence that camera coverage would adversely affect Thomas’ chance at a fair trial.
“The presence of the press and cameras in the courtroom is as much a safeguard for the defendant as anyone else,” News-Sentinel attorney Richard L. Hollow told the newspaper.
Cameras have been allowed in Tennessee courtrooms since 1995, following the adoption of a rule that also allows a judge to “refuse, limit, terminate, or temporarily suspend” press coverage in order to ensure the control of court proceedings, courtroom decorum, courtroom safety and the fair administration of justice. (Tennessee v. Thomas) — EH