District Attorney petitions appeals court to vacate judge’s order permitting ‘Frontline’ to tape jury

From the Winter 2003 issue of The News Media & The Law, page 22.

By Sara Thacker

For more than two years, producers at the PBS news program “Frontline” searched for a court that would allow it to film a documentary on how capital murder cases operate from beginning to end.

“Frontline’s” search ended in Harris County, Texas before Criminal District Court Judge Ted Poe. In a controversial ruling, Poe permitted the filming of jury deliberations in a capital murder case where prosecutors sought the death penalty against 17-year-old Cedric Harrison.

Through its investigation, “Frontline” learned that both defense and prosecuting attorneys believed that picking the jury is the most important aspect in determining the outcome of a death-penalty case, said James Hemphill, an attorney for “Frontline.”

As a result, “Frontline” decided that “the heart of a documentary about that process would be the jury,” said Michael Sullivan, the program’s executive producer for special projects, during a press conference in Houston, Texas.

However, the documentary and the trial itself were put on hold when the Harris County District Attorney petitioned the appellate court to vacate Poe’s order permitting filming of the jury deliberations.

“If someone wants to conduct this experiment somewhere else that’s fine, but not at our expense,” said Harris County Assistant District Attorney William Delmore III.

Under Poe’s order, only jurors who agree to be filmed are permitted on the panel. Excluding jurors who do not want to be filmed narrows and skews the jury pool and may bar qualified jurors who are favorable to the prosecution, Delmore said.

Nonconfrontational individuals would be good jurors in seeking a unanimous verdict for the death penalty; however, they may be excluded from the jury because they do not want national media coverage, Delmore explained.

These jurors “are being excused for a reason that has nothing to do with their ability to fairly consider the evidence,” argued the District Attorney’s Office in its petition to the court. But as “Frontline” attorney John Parras explained, excusing jurors for reasons that have nothing to do with their ability is not prohibited.

“We make decisions all the time that skew the jury,” Parras said. For example, “I believe here in Harris County, it’s voters that are selected to be jurors. That in and of itself skews the selection.”

In this case, the effect of the order on the potential pool of jurors was minimal. Out of 110 potential jurors, 14 people objected to filming, said Ricardo Rodriguez, attorney for defendant Harrison.

“Our argument is that it is within the trial judge’s discretion to decide whether he wants to allow this . . . how he wants to run his courtroom,” Hemphill said.

The mandamus petition requesting that the appellate court vacate Poe’s order can be used only when a judge violates a clearly stated principle of law, Parras explained.

In Texas, “there is no clearly stated principle of law that states that jury deliberations shall be secret,” Parras said. Therefore, mandamus is not appropriate.

When jury selection began in the Harrison trial, both the District Attorney and defense agreed that certain potential jurors could be dismissed because they indicated that filming would affect their ability to serve as jurors. Parras argued that the District Attorney’s Office waived its right to appeal because it failed to object during jury selection.

Not only did jurors have to agree to filming of their deliberations, but Harrison, his mother and his attorney Rodriguez had to agree to the filming and waived the right to appeal based upon the “Frontline” tapes.

According to Rodriguez, Harrison’s mother strongly supported taping jury deliberations. “Her comment was that ‘The state of Texas wants to kill my son. I think the whole state should be watching.'” Rodriguez said.

But it is precisely this publicity that the District Attorney fears will influence the jury during deliberations.

“This is a death penalty case, and a juror who strongly favors the imposition of the death penalty may be hesitant to express those views, knowing that the defendant’s friends and family members are likely to hold the juror personally responsible for the resulting verdict,”the District Attorney’s Office explained in its petition.

However, because defendants know the identity of jurors, this “hypothetical potential for retaliation exists in every case, even if there are no cameras anywhere near the courthouse,” “Frontline” responded in its brief.

Taping jury deliberations also could influence the deliberative process the District Attorney argued. “Jurors that are shy may be unwilling to speak up in front of a national audience,” Delmore said.

Conversely, other jurors may want to grandstand and “use this unique opportunity to discuss capital punishment issues on national television to promote some pre-existing agenda,” the District Attorney’s Office wrote in its petition. In addition, jurors who take a position early on may not want to change for fear of being perceived as “weak-willed and indecisive” on a national television broadcast.

“This is pure speculation,” Parras responded.

In fact, as “Frontline” explained in its brief, other states that have taped and televised jury deliberations — including Wisconsin, Arizona, Colorado — demonstrate that the presence of cameras in the jury room do not hamper the behavior of jurors or the administration of justice.

Juries were first televised in 1986 when “Frontline” covered the criminal trial of a defendant charged with gun possession in Milwaukee, Wis. In order to record jury deliberations, “Frontline” had two cameramen and a soundman inside the jury room.

According to observations made by Judge Ralph Fine, who presided over the trial and examined “Frontline’s” raw footage of the deliberations, the jurors behavior was unaffected by the filming.

“Jurors were so focused on what they were doing and the seriousness of their task

. . . that they were oblivious to the technology about them,” said Fine, who now sits on the Wisconsin Court of Appeals. “I could not detect any of them acting differently,” he said.

Televising jury deliberations exposed that the judicial system was working properly.

“It demonstrated brilliantly what a serious jury can do to avoid an injustice,” Fine said of the jury’s verdict to acquit the defendant.

Colorado also recognized the benefits of observing first-hand jury deliberations when it issued an order permitting ABC to film jury deliberations for its television series “State v.”

Colorado decided to open its courts and jury deliberations to cameras after examining an ABC series filmed in Arizona that tracked several cases through the state criminal justice system and included footage of jury deliberations.

“We believe that we do have a responsibility to educate the public about what really goes on in the courts and in criminal trials specifically, and this program serves that goal. We have watched the Arizona coverage, and are convinced that ABC is committed to filming, but not influencing or affecting the process,” wrote Colorado Supreme Court Justice Rebecca Love Kourlis in a letter to the chief judges, district attorneys, public defenders and district administrators in each of the five judicial districts ABC requested to film.

The importance of the jury in the criminal justice system cannot be overstated.

“The jury was meant to be the conscience of the community,” Fine explained. “It is the last vestige of citizen’s control over an important government function.”

Interviewing jurors after the verdict can be problematic because it will not accurately depict how the jury administered justice.

“Memory is a very cloudy retrospective scope,” Fine said.

Access to the deliberative process will educate the public on what to expect when called for jury duty.

“Few people had thought seriously about what their position would be in a capital murder case,” Parras said.

Hold-out jurors face extraordinary pressure.

“In a lot of cases, one or two people are holding out and give up after eight to ten hours of badgering,” Rodriguez said.

If Poe’s order is upheld on appeal, it would mark the first time a court has permitted filming of jury deliberations in a capital murder case. Such action would open a door previously locked to the public.