Progress rolls slowly for camera access to courts

From the Summer 2003 issue of The News Media & The Law, page 41.

By Katrina Hull

While a renewed push for camera access in federal courts was working its way through Congress this summer, two U.S. Supreme Court justices weighed in on the smaller step of increased audio access to the high court. In New York, a cable network unsuccessfully challenged the state’s ban on cameras in courts, while new Mississippi court rules allow camera access and a Pennsylvania network made a rare broadcast from inside a courtroom.

In Iowa and Ohio, cameras were permitted in cases involving teenagers, but a judge denied access to televise the trial of a Minnesota teen accused of killing his father.

The North Carolina news media experienced bias in camera access to the high-profile trial of novelist Michael Peterson on charges he murdered his wife. On the other coast, California media were fighting a motion by accused murder Scott Peterson to keep the public and cameras out of Peterson’s trial on charges he killed his pregnant wife.

Legislation would open the doors for cameras in federal courts

Public seating for a live view of the U.S. Supreme Court is limited to a first-come, first-seated basis. The Court’s Web site warns that its proceedings attract large crowds and lines tend to form before the building opens.

Yet, traveling to the nation’s capital and waking up early to stake a place in line is the only way to view the top jurists in action. Video cameras are banned in the Supreme Court and federal trial courts.

Federal legislation seeks to change the no-camera tradition from the top court in the nation down to the federal district courts in each state. As of late July, a bill that was before the full Senate had advanced as far as it has ever gone. At a court’s discretion, the proposal would allow video and still camera access to all federal courtrooms on a case-by-case basis.

“It’s definitely an uphill battle,” said Barbara Cochran, president of the Radio-Television News Directors Association. However, the Supreme Court’s release of audiotapes following the April 2003 arguments about the legality of affirmative action at the University of Michigan and the 2000 arguments in the 2000 presidential election cases “certainly was a recognition that the public does have an interest in being able to witness directly the proceedings,” Cochran said.

Of course, “we would prefer for it to be live and we would prefer for the public to be able to see as well as hear,” Cochran said.

Chief Justice William Rehnquist chaired the Judicial Conference that in 1994 voted not to allow camera coverage of civil proceedings in federal trial courts. The conference also voted not to amend the federal rules banning cameras in federal criminal proceedings. The votes followed a two-year experiment during which 82 percent of all applications for camera coverage were granted.

Federal appellate courts can decide whether to allow camera access, but only the Second Circuit in New York and the Ninth Circuit in San Francisco have voted to allow cameras in their courtrooms.

The Judicial Conference rules do not permit cameras in federal district courts even if a judge agrees to access. All states currently permit some form of audio-video coverage in their courtrooms. At least 37 states allow the media to televise trials, according to Sen. Charles Grassley’s (R-Iowa) office. Grassley and Sen. Charles Schumer (D-N.Y.) are the bill’s cosponsors.

“The sunshine of public scrutiny is the best way to maintain confidence and promote a better understanding of the judicial system,” Grassley said in a statement. “Allowing judges to broadcast trials will increase public awareness and scrutiny and will bring greater accountability to the judicial branch.”

The bill was sent to the full Senate on a 14-4 vote in late May (S. 554). In addition to the stand-alone bill, the proposal to allow discretionary use of cameras is also attached to a bill that would give federal judges a 16.5 percent pay raise (S.1023). That bill also was awaiting a vote by the full Senate in late July.

A camera-in-the-courts bill last passed out of committee in December 2001, but it died in the full Senate. In the House, a bill sponsored by Rep. Steve Chabot (R-Ohio) that matches the Senate bill was in the Judiciary Committee as of late July (H.R. 2155). The House bill’s sponsors hope to add the camera proposal to a federal courts improvement act, increasing the chances the full House would act on the legislation.

Meanwhile, two Supreme Court justices hinted that audiotapes of their oral arguments might be released more frequently in the future during a rare TV interview on ABC’s “This Week” broadcast on July 6.

In response to a question, Justice Sandra Day O’Connor said there is no reason not to have more access to the audiotapes and possibly even access in real-time. Justice Stephen Breyer said he “absolutely” believed audiotapes would be released more often in the future.

The justices’ television appearance illustrated another point for RTNDA’s Cochran. It is an example of why camera access to federal courts, including the Supreme Court, is so important, she said.

“It was fascinating,” Cochran said. “You realize how seldom the public hears from any of these very fascinating nine people.”

Court upholds constitutionality of New York’s camera ban

Court TV plans to appeal a July 15 ruling that rejected an expansive reading of the New York constitution that would have lifted a ban on video cameras in trial courts.

The cable television network filed the first-ever suit to directly challenge the 1952 law, arguing that it violated the state constitution’s guarantee that the public and press can attend trials. Previous challenges have come in individual cases and have centered around a particular party’s request for camera access.

State Supreme Court Justice Shirley Kornreich said a judicial declaration of unconstitutionality was an improper way to change the law.

“A State constitutional rule expanding the rights of the media in New York to include the right to photograph and broadcast court proceedings would derail what is, and always has been, a legislative process,” Kornreich wrote.

The statute at issue is Section 52 of the state’s Civil Rights Law, which became law when televised hearings allegedly were used to intimidate suspected Communist party members. The law prohibits televising, broadcasting or taking motion pictures of proceedings when a witness testifies in court.

Court TV also sought a declaration that the law hinders a First Amendment right of access to courts. During arguments in June, network lawyer David Boies said the public should get an “unfiltered” view of courtroom proceedings.

“Is the public going to see and hear what’s actually going on? Or are they going to see and hear other people’s characterizations?” Boies asked the court.

Cameras were allowed in New York courts during a 10-year experiment that ended in 1997. New York is one of nine states that bans cameras at trial courts, and state courts have upheld the constitutionality of the statute in the past. Despite the ban, some judges have allowed cameras in their courtroom.

Camera access begins in Mississippi courts

Television and newspaper cameras gained access to most Mississippi courtrooms July 1 when new rules by the state’s supreme court took effect.

“People see all these judge shows on TV and that’s their perception of justice,” said Dennis Smith, news director of television station WLBT in Jackson, Miss. “It’s just a great opportunity and a great day for the citizens of this state to really see what is going on in one of the more under-covered branches of government.”

Smith is also an attorney and was one of two journalists on a 10-member committee that studied the relationship between courts and the news media. Camera access will continue until December 2004, unless the state’s highest court extends the rules adopted on April 17. The court decided to allow for the trial period after the study.

The Mississippi Supreme Court has allowed camera access to oral arguments for years and began broadcasting its sessions on the Internet in 2001. The new rules apply to the Mississippi Supreme Court of Appeals, chancery courts, circuit courts and county courts. Unless authorized by the presiding judge, cameras are still prohibited in municipal and small-claims courts.

In June 1995, the Mississippi Supreme Court upheld a statewide ban on cameras in the courtroom. Smith said the push for camera access in courts followed allegations that judgeships were for sale in Mississippi, and an increased need for understanding about the judicial process.

As of late July, Mississippi broadcasters were waiting to televise a trial. Smith predicted that the first televised trial in central Mississippi would be Angela Williams’ trial on charges of child neglect in the deaths of six children in a mobile home fire.

Under the new rules, media are required to request camera access 48 hours in advance, though with a judge’s approval access may be granted on a shorter notice for situations such as initial appearances, Smith said.

Pennsylvania court allows broadcast of closed hearing appeal

Cable television cameras captured arguments before a panel of Pennsylvania state appeals judges that a juvenile court hearing should have been conducted in public.

The appeal in late May by the Pittsburgh Post-Gazette stemmed from a closed custody hearing. A father accused of stabbing his son in the skull sought to have his son returned to him from foster care. The judge said keeping the public out of the hearing was in the child’s best interest.

Cameras are rare in Pennsylvania courtrooms. The Pennsylvania Superior Court, which hears appeals, has permitted the Pennsylvania Cable Network to tape and broadcast live only about a dozen sessions over the last three years, the Post-Gazette reported.

The network, which reaches audiences statewide, is one of the only broadcasters allowed into Pennsylvania courtrooms, the newspaper said. State court rules prohibit photographing any criminal court session, but judges in civil proceedings without juries may permit cameras.

Two states allow cameras in juvenile trials; another declines access

In Ohio, TV cameras captured a mother’s tears during a court appearance of her twin 14-year-old sons. The boys are accused of plotting to kill their 15- and 10-year-old brothers.

Attorneys for the twins had requested that Butler County Juvenile Court Judge David Niehaus remove the media from the May court appearances because their clients wanted as little publicity as possible. The judge declined the request. The boys are being tried as youthful offenders in the Hamilton, Ohio, court.

News cameras also were present at a May hearing in Akron, Ohio, to determine whether to grant a mother visitation rights with the six children she is accused of starving and locking in a closet. The state’s Children Services Board made the request on behalf of the mother, who is in jail.

Under Ohio law, if the proceeding is open to the public, the court doesn’t have discretion to disallow cameras unless a witness objects to the camera’s presence, Cleveland media attorney David Marburger said.

In Iowa, a judge declined a request by two teenagers to keep video and still cameras out of their trial on charges they removed barricades from a construction site and caused a serious traffic accident.

This is one of the first times cameras have been allowed to film teenagers charged with crimes in north central Iowa, media attorney J. Mathew Anderson said. Cameras are banned in juvenile courts, but the teens are being tried as adults and the public interest in the case is high, Anderson said.

“The public has a right to participate in the judicial process,” Anderson said. “The burden is on the criminal defendant to show that he or she would be harmed by the cameras in the court.”

Attorneys for 16-year-old Cory Tesch and 18-year-old Matt Stromley had argued that expanded media coverage would harm their clients’ abilities to defend themselves. A third defendant, who is 17, did not join the motion to limit media access.

“We do have the First Amendment in this country, which provides for media coverage of criminal cases,” District Court Judge Stephen Carroll said during arguments on the motion.

Carroll’s ruling on July 3 allows cameras to cover the trial of all three defendants. The Globe Gazette (Mason City) and KIMT-TV had opposed the motion to limit media access.

In Minnesota, a judge on July 22 denied Court TV’s request to televise an 18-year-old’s trial on charges he murdered his father.

Stearns County District Judge Paul Widick said he based his decision on the long-standing state rules that prohibit televising judicial proceedings unless all parties and the judge consent.

Jason MacLennan is accused of fatally shooting his father in their St. Cloud, Minn., home in January. The teenager has admitted shooting his father but claims he suffered years of abuse. The trial was set to begin on Aug. 11.

Judge to hear media’s request to televise Peterson murder trial

During a hearing that was set for Aug. 14, Stanislaus County Superior Court Judge Al Girolami was to consider the media’s request for live television coverage of Scott Peterson preliminary hearing on charges he murdered his pregnant wife.

Peterson’s defense team filed a motion on July 22 that asked the judge to close the preliminary hearing to the public. His lawyers said the intense media attention would jeopardize Peterson’s right to a fair trial. The preliminary hearing was set for Sept. 9.

“The defense is particularly concerned with the danger that this prosecution team will attempt to utilize the preliminary hearing as a vehicle to disseminate bogus ‘evidence’ and theories that will not be admissible at trial,” Peterson’s defense attorneys wrote in the motion.

The family of Peterson’s deceased wife, Laci, also opposes cameras in the court. An attorney for Amber Frey, the woman with whom Peterson admitted having an affair, also filed a motion on July 22 asking that Frey’s appearance at the preliminary hearing not be broadcast.

Prosecutors have said they would seek the death penalty if Peterson is convicted. The 30-year-old Modesto man has pleaded not guilty to the murder of his wife and the couple’s unborn son. Their bodies were found in April on the shores of the San Francisco Bay, near where Peterson said he launched his boat to go fishing on Christmas Eve — the same day a pregnant Laci Peterson disappeared.

French film crew allowed to tape jurors’ faces

North Carolina Superior Court Judge Orlando Hudson is allowing a French film crew to tape the faces of jurors during the opening and closing statements in novelist Michael Peterson’s murder trial.

Hudson prohibited all other media from taping jurors. North Carolina law also prohibits the coverage of jurors.

“I remain astonished that Judge Hudson has decided to waive certain parts of the rules for one party while continuing to ‘apply them’ to others,” Amanda Martin, general counsel for the North Carolina Press Association said.

“I know of no basis for him to do that,” Martin said. “I recognize this is a real hot potato case and that he’s under extreme pressure in it, which makes me wonder all the more why he would grant such highly unusual requests.”

The French company, Maha Films, is making a documentary. It promised not to air its program until months after the trial ends and jurors’ faces will not be included without their written consent.

Defense attorneys and prosecutors objected to the taping. They expressed concerns that filming jurors violated the law and that jurors may be distracted and not pay enough attention to the attorneys.

Peterson, who is also a former columnist for The (Durham) Herald-Sun , is accused of killing his wife, Kathleen. She was found dead at the bottom of a stairway in the mansion she had shared with her husband. The trial began July 1.

Cameras kept out of judge’s hearing

A Brooklyn, N.Y., matrimonial court judge successfully kept cameras out of his own June arraignment on charges of corruption. State Supreme Court Justice Gerald Garson is accused of taking bribes to fix divorce cases.

New York law bans cameras in any proceeding when a witness testifies. Some courts allow cameras during an arraignment if all parties consent. Recently, state judges have made exceptions to the ban on cameras and allowed TV coverage. Last year, cameras were allowed to televise the arraignment of Justice Victor Barron. He pleaded guilty to bribery charges before the trial began.

WNBC-TV had requested permission to tape Garson’s arraignment, but Garson’s lawyers formally requested that cameras be barred.